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04/28/88 In Re Marriage of Wanda Click

April 28, 1988

IN RE MARRIAGE OF WANDA CLICK, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

ROBERT CLICK, Respondent-Appellee

523 N.E.2d 169, 169 Ill. App. 3d 48, 119 Ill. Dec. 701 1988.IL.627

Appeal from the Circuit Court of Kane County; the Hon. Melvin E. Dunn, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Petitioner, Wanda Click, appeals from the property distribution portion of an order entered by the circuit court of Kane County dissolving her marriage to Robert Click. While petitioner's action was pending, Robert was critically injured in a motorcycle accident. He has been in a coma since May 4, 1986. The trial court consolidated the dissolution action with an action brought by Robert's mother, Jacquelyn Click, to have Robert adjudicated a disabled adult and to have a guardian appointed for him. Jacquelyn was subsequently appointed guardian of Robert's person and estate, and she participated in the property division portion of the dissolution proceeding on his behalf.

Wanda initially sought to enforce a settlement agreement which she alleged the parties had reached before Robert's accident. The court rejected that claim, however, concluding that Wanda had not sufficiently established the terms of the alleged agreement to allow it to be enforced. On March 19, 1987, the court entered an order dissolving the marriage and dividing the marital property. The court noted that, according to Wanda, Robert was a professional thief who had only occasionally been "gainfully employed" during the marriage. Wanda worked only part-time during the marriage. The court found the testimony regarding the parties' earnings to be incredible as the evidence demonstrated that they had acquired assets far in excess of their reported income. The property division portion of the order directed the sale of the marital residence, in which Wanda was residing, and an equal distribution of the proceeds between the parties. It awarded Robert the proceeds of a worker's compensation claim involving an employment-related injury he had received, the proceeds of a pending action concerning his motorcycle accident, the salvage value of the Gold Wing motorcycle on which he was injured, a motorcycle trailer, and a number of personal items. It awarded Wanda a 1983 automobile, a smaller motorcycle, an aluminum boat, and some personal items. Wanda was additionally required to reimburse Robert for some of his furnishings which she sold after his accident, and for some charges she made to his credit cards. The court also ordered the equal division of any property contained in a safe deposit box and an equal division of the sale proceeds of a speed boat "if it is ever located," which Wanda claimed Robert had bought. The court directed the guardian to sell all of the assets assigned to Robert and to use the proceeds for his care. The court reserved the issue of future maintenance for Robert.

On appeal, Wanda alleges that: (1) the court's Conclusion that the parties had not reached a settlement agreement was against the manifest weight of the evidence; (2) the evidence demonstrated that Robert had dissipated a marital asset by destroying the Gold Wing motorcycle; (3) the property division is inequitable and amounts to a distribution of marital property to a third party; and (4) the court erred in excluding evidence of her premarital contribution to the estate. Wanda additionally alleges that: (5) the trial Judge acted improperly in not recusing himself from the case because he and Robert's attorney are both members of an exclusive legal organization; and (6) that the trial Judge adopted the role of an advocate on Robert's behalf.

We first address petitioner's claim that she was prejudiced by the trial Judge's mutual membership with Robert's attorney in the American Academy of Matrimonial Lawyers (the Academy), a legal organization which petitioner characterizes as exclusive. We note that Wanda's counsel raised this same contention in two other dissolution cases in Kane County over which the trial Judge, Judge Melvin Dunn, presided and in which Robert's attorney, Harry Schaffner, represented the opposing party. On June 18, 1987, Judge Dunn and Mr. Schaffner both testified at a hearing on the issue in a case entitled In re Marriage of Martin (No. 85 -- D -- 1046) before Judge Joseph McCarthy. Judge McCarthy concluded that the mutual membership of Judge Dunn and Mr. Schaffner in the Academy could not serve as the basis for a change of venue in the Martin case. Subsequently, in the instant case, Judge Dunn denied Wanda's motion for a mistrial, based upon Judge McCarthy's ruling. A transcript of the Martin hearing has been included with the record on appeal.

We find virtually no support in the Martin record or in the authorities cited by petitioner for the contention that Judge Dunn was required to either disclose his membership in the Academy or recuse himself from this case. Moreover, petitioner cites no authority in support of her position that suspected bias or prejudice on the part of a trial Judge can serve as the basis for a new trial. We note, in fact, that only a demonstration of actual prejudice is sufficient to warrant a change of venue from a trial Judge in a pending action after he or she has made a substantive ruling. (See, e.g., In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 532; Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 569; Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc. (1984), 122 Ill. App. 3d 504, 515.) Wanda raised her objections to Judge Dunn for the first time in this case after judgment. We believe it would be patently unreasonable to afford petitioner relief on a lesser demonstration of prejudice after trial than that which she would have been required to demonstrate during trial. The testimony offered during the Martin hearing demonstrated only that Mr. Schaffner and Judge Dunn were acquainted -- a fact which falls far short of demonstrating actual prejudice. (See Malawy v. Richards Manufacturing Co., 150 Ill. App. 3d at 568-69 (finding no demonstration of actual prejudice where the evidence established that a partner of plaintiff's attorney had been the treasurer of the trial Judge's election campaign fund).) The trial court therefore properly denied petitioner's motion for a mistrial.

We also reject petitioner's contention that the trial Judge, in effect, abandoned his neutral role and became an advocate for Robert's guardian. We agree that the trial court frequently displayed impatience with Wanda Click and her attorney and was occasionally abrupt in sustaining objections offered by the guardian's counsel. The court also excluded petitioner's attorney from a hearing regarding the guardian's fees. We cannot agree, however, that the court's comments and rulings indicated bias or prejudice against petitioner. The guardian was awarded fees only from Robert's share of the marital property. In addition, a trial Judge is allowed greater latitude to comment during a bench trial than might be acceptable during a jury trial. (See Joray Mason Contractors, Inc. v. Four J's Construction Corp. (1978), 61 Ill. App. 3d 410, 412; see also City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1121.) After reviewing the testimony, we cannot conclude on the basis of the court's comments or conduct that petitioner was deprived of a fair and impartial trial.

Wanda next assigns error to the trial court's ruling that there was insufficient evidence to establish that the parties had reached an agreement prior to Robert's injury. The guardian contends that Wanda has not preserved this issue because she failed to expressly raise it in her notice of appeal. Supreme Court Rule 303(c)(2) requires that the notice of appeal "shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court." (107 Ill. 2d R. 303(c)(2).) However, an appeal from a final judgment draws into issue all prior, nonfinal orders which produced the final judgment. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433; First National Bank v. St. Charles National Bank (1987), 152 Ill. App. 3d 923, 930.) The purpose of the notice is to inform the successful party that his opponent seeks review by a higher court. (Burtell v. First Charter Service Corp., 76 Ill. 2d at 433; Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 339.) Where a deficiency in the notice is one of form rather than of substance, therefore, it does not deprive the appellate court of jurisdiction to review an unspecified order which was "a 'step in the procedural progression leading' to the judgment specified in the notice of appeal." (Burtell v. First Charter Service Corp., 76 Ill. 2d at 435, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254.) In the instant case, the trial court's Conclusion that there was no enforceable agreement between the parties was a procedural prerequisite to its independent division of the property. Petitioner's notice of appeal was therefore sufficient to confer jurisdiction upon this court to consider the alleged agreement.

The court's Conclusion that there was no enforceable agreement was not against the manifest weight of the evidence, however. The guardian's attorney, who was present when Robert and Wanda discussed a settlement, testified as an adverse witness for petitioner. He stated that the parties had reached a settlement in principle. He also stated that a written agreement was to be drawn by petitioner's attorney for Robert's approval but that no writing was ever presented to Robert or to himself. The court, therefore, could properly have concluded that Robert did not intend to be bound by the oral agreement until he had seen and approved the written contract. The fact that the parties anticipate executing a formal contract does not necessarily establish that their prior agreements were mere negotiations. (Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 126.) However, where ...


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