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04/18/88 In Re Marriage of R. Marie Hartian

April 18, 1988

IN RE MARRIAGE OF R. MARIE HARTIAN, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

and ROBERT M. HARTIAN, Respondent-Appellant

526 N.E.2d 1104, 172 Ill. App. 3d 440, 122 Ill. Dec. 565 1988.IL.553

Appeal from the Circuit Court of Cook County; the Hon. William E. Peterson and the Hon. Michael S. Jordan, Judges, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Respondent, Robert M. Hartian (Robert), appeals (No. 86-3306) from the order of the circuit court of Cook County denying his amended motion either to vacate, modify, amend or supplement judgment for dissolution of marriage and to conduct further hearings (hereinafter amended motion to vacate). Petitioner, R. Marie Hartian (Marie), appeals in a separate but consolidated appeal (No. 87-0195) from the order of the circuit court dismissing her section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611 petition and granting Robert's section 2-611 petition.

On appeal, Robert contends that the trial court erred in: (1) denying his amended motion to vacate; (2) ruling that Dr. Nicholas Joyce-Clarke was subject to Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220) and limiting his testimony pursuant to that rule; (3) failing to modify the judgment for dissolution with respect to child custody and visitation; (4) ordering him to pay his prior attorney an additional $5,000 in fees; and (5) granting Marie's motion in limine prior to the section 2 -- 611 hearing.

Marie contends (1) that the trial court erred in: (a) dismissing her section 2 -- 611 petition; (b) failing to dismiss Robert's section 2 -- 611 petition as being untimely; (c) modifying retroactively the court ordered support payments pursuant to section 2 -- 611; (d) reimbursing Robert for expenses other than attorney fees and costs under section 2 -- 611; (e) awarding Robert an unreasonable amount of attorney fees under section 2 -- 611; and (2) that the judgment for dissolution released Robert's right to a section 2 -- 611 hearing.

The parties were married on November 11, 1956. They had three children; Robert and Richard, who were emancipated at the time of the entry of the judgment for dissolution, and Karen, a minor.

On July 23, 1982, Marie filed a petition for dissolution of marriage charging Robert with mental cruelty. On June 16, 1983, Robert filed a counterpetition for dissolution of marriage, also charging mental cruelty.

On September 4, 1984, Marie admitted in court that she had been working approximately 20 to 30 hours per week during part of the proceedings. She previously had filed numerous pleadings with the court indicating she was unemployed throughout all of the prior proceedings. In November 1984, a deposition was taken of Michael Fuller, Marie's employer, which also established that Marie had been working during the time she claimed she was not.

On September 28, 1984, the court ordered that permanent custody of the parties' minor child, Karen, would go to Marie, and that Dr. Robert N. Traisman, a psychologist, would begin therapy with Karen and would establish what type of visitation Robert would have with his daughter, if any.

On December 17, 1984, before Judge Peterson, the grounds for dissolution, irreconcilable differences, were proved. The following day, on December 18, 1984, counsel for both parties represented to the court that an oral settlement agreement had been reached. Both Marie and Robert testified as to the terms of the agreement. Robert objected to Marie's receiving 37% of his gross, as opposed to net, pension. The court questioned whether the agreement included Marie's obtaining 37% of Robert's gross or net pension, but then, after being assured by Marie's attorney, Ronald Ladden, that the agreement included Robert's gross pension, the court told Ladden to write up the judgment.

Sometime thereafter, the judgment for dissolution was prepared and submitted to Robert Reardon, Robert's attorney. Robert refused to sign the judgment. On February 14, 1985, Reardon sent Ladden a letter stating Robert's objections to the proposed settlement agreement.

On March 21, 1985, Marie filed a motion for entry of judgment. Reardon filed a motion to withdraw as Robert's attorney. The court stated that it did not want Reardon to withdraw until the Disposition of the proposed judgment for dissolution. Reardon advised the court that he and Robert were having some problems because Robert had problems with the judgment as it was to be entered. In addition, Reardon stated that he and his client were having problems communicating. Ladden then informed the court that the judgment conformed to the prove up, that he had made every change in the judgment that Robert had wanted, and initially he told the court that both parties had signed the settlement agreement. Ladden later advised the court that Robert refused to sign the agreement, but had agreed to it orally. The court signed and entered the judgment for dissolution based on the prove up and the parties' oral settlement agreement. Once the court signed the judgment, it allowed Reardon to withdraw as Robert's attorney and James Wolf to substitute.

On April 4, 1985, Robert filed a motion either to vacate, modify, amend or supplement judgment for dissolution of marriage. On May 10, 1985, Robert filed his amended motion to vacate. On May 15, 1985, the court entered an order allowing Robert to file the amended motion, which alleged, for the first time, that during the course of the proceedings Marie had engaged in a pattern of perjury which prejudiced Robert.

On May 23, 1985, Robert filed a summary of issues at the court's request. The summary advanced, among other things, the issue of whether Marie was to receive 37% of Robert's gross or net pension. Appended to the summary was a discovery deposition of Michael Fuller, Marie's employer. In the deposition, Fuller stated that Marie had requested that her checks be made payable to her former attorney in order to hide her income and employment.

By September 17, 1986, all matters pending in this action had been transferred to Judge Jordan. On that date, he considered the amended motion to vacate and ruled from the bench granting it. However, on October 3, 1986, when the attorneys who had fee petitions appeared before Judge Jordan, he vacated his granting of the amended motion to vacate and continued the motion. On October 15, 1986, Judge Jordan explained that he had vacated his earlier order because all parties had not been present when he ruled from the bench.

On October 8, 1986, Robert filed a further amendment to his amended motion to vacate, pleading he had diminished capacity to completely comprehend the proceedings which occurred on December 18, 1984. On the same date, the court granted, in part, Marie's motion in limine, which she had filed on July 7, 1986, barring the introduction of evidence of her alleged perjury which occurred prior to September 4, 1984.

The court then began the hearing on the amended motion to vacate. When Robert presented his first witness, Dr. Nicholas Joyce-Clarke, whom Robert had listed as an expert in his answer to interrogatories, the court sustained Marie's Rule 220 objection (107 Ill. 2d R. 220) and limited the doctor's testimony as to things he saw, things he did, and, as appropriate, things he was told.

After hearing all of the evidence, the court denied Robert's amended motion to vacate and approved the judgment for dissolution.

The court next heard the parties' fee petitions, beginning with Robert's. Robert called Marie as an adverse witness, but she claimed her fifth amendment right not to testify. Thereafter, she agreed to pay the fees of Robert's two former attorneys, Dennis Forman and Edward Krantz.

The court then determined that each party was responsible for paying his or her own attorney fees, including all fees necessitated by the hearings which had just been held, and granted the parties leave to file section 2 -- 611 petitions.

On October 14, 1986, both parties filed separate petitions for section 2 -- 611 fees, accusing each other of perjury and false pleading. Specifically, Marie requested fees incurred in defending the amended motion to vacate. Robert requested a retroactive modification of all prior orders requiring him to pay monies to Marie.

Marie also renewed her motion in limine to bar testimony of her alleged perjury occurring before September 4, 1984, but the court denied it.

The parties stipulated to the hours spent by the attorneys and the amounts of fees that were stated in each other's petitions.

The court heard Robert's petition first. Robert called Marie as an adverse witness, but she refused to testify, claiming her fifth amendment right not to testify. Next, Wolf, Robert's attorney, testified as to hours he expended as a result of the alleged perjury by Marie.

Marie then moved to strike and dismiss Robert's section 2 -- 611 petition because it was not filed within 30 days of the judgment for dissolution. The court denied the motion, holding that Robert's section 2 -- 611 ...


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