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02/07/89 In Re Marriage of Robin Santa Cruz

February 7, 1989

IN RE MARRIAGE OF ROBIN SANTA CRUZ, N/K/A ROBIN CROSON,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, and NOEL SANTA CRUZ, Respondent

(Judith Rea, n/k/a Judith Wolff,

Intervenor-Appellant)

534 N.E.2d 636, 179 Ill. App. 3d 611, 128 Ill. Dec. 454 1989.IL.145

Appeal from the Circuit Court of Du Page County; the Hon. Francis W. Faris, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Intervenor, Judith Rea, n/k/a Judith Wolff, appeals from the judgments of the circuit court of Du Page County of February 4, 1988, setting a schedule of unsupervised visitation between intervenor's daughter and granddaughter and of February 18, 1988, finding her guilty of wilful contempt of court for failing to comply with the visitation order. Intervenor was fined $500 and sentenced to 60 days in jail. The court's judgment was stayed pending appeal upon intervenor's posting of a $1,500 cash bond. The issues presented are: (1) whether the contempt judgment must be reversed where the February 4 order allegedly violated had been stayed by intervenor's timely motion to vacate or reconsider which was filed pursuant to section 2-1203 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1203); (2) whether the contempt judgment must be reversed where the court erred in entering a visitation order after allowing the intervenor's counsel to withdraw but before intervenor could secure other representation; (3) whether the contempt judgment was criminal in nature and must be reversed because: (a) intervenor was denied her privilege against self-incrimination; (b) the evidence failed to prove wilful violation of the court's order beyond a reasonable doubt; (c) intervenor was not provided adequate notice; and (d) it was inappropriate to allow the opposing party's attorney to prosecute the criminal contempt case; and (4) whether intervenor's motion for change of venue should have been granted. We reverse and remand.

Previously, in In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, intervenor appealed from the circuit court's judgment finding that she did not have standing under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)) to petition for custody of her granddaughter, Christianne Rea. Christianne is the daughter of plaintiff, Robin Santa Cruz, formerly known as Robin Rea and now known as Robin Croson, and defendant, Noel Santa Cruz, who is not involved in this appeal. We affirmed the judgment of the circuit court finding that intervenor did not have standing to petition for custody of Christianne. Santa Cruz, 172 Ill. App. 3d at 782-88.

While that appeal was pending, however, and concurrent with numerous motions filed in this court, plaintiff petitioned the circuit court for visitation with her then 23-month-old daughter, who had been placed by the circuit court in the temporary custody of intervenor during the pendency of the suit to determine standing. When the circuit court there found intervenor did not have standing, it directed that Christianne be turned over to plaintiff, and Christianne was in plaintiff's custody between November 6 and November 21, 1987. This court then entered its order staying the circuit court's order, and Christianne was returned to intervenor's custody.

The circumstances leading to the instant appeal began when plaintiff filed her petition for visitation in the circuit court on December 22, 1987. At this same time, plaintiff also had pending in this court a motion seeking, inter alia, visitation with Christianne or remand for a visitation hearing. In light of that fact, the circuit court declined to proceed to a hearing pursuant to section 607 of the Act, which provides for visitation between the child and the noncustodial parent unless such visitation would be an endangerment to the child's physical, mental, moral or emotional health. (Ill. Rev. Stat. 1987, ch. 40, par. 607(a).) Despite intervenor's argument that this court's stay of the circuit court's order entered in No. 2-87-1050 left intact a July 2, 1987, visitation order which provided for supervised visitation, the court-cognizant of the upcoming Christmas holidays-ruled that plaintiff would have visitation with Christianne for a full week commencing on Christmas day.

On January 4, 1988, this court denied plaintiff's pending motion which, inter alia, sought visitation or remand for visitation hearing. On January 21, 1988, plaintiff again filed her petition for visitation in the circuit court. The same day, after considering whether it had jurisdiction to proceed in view of this court's denial of plaintiff's motion, the court ruled the cause was properly before it. It also ruled that this was not a new proceeding, and it denied intervenor's oral motion for change of venue. A hearing was set for February 4, 1988.

In the interim, on January 29, 1988, intervenor's counsel served her by certified mail with a notice of motion and motion for leave to withdraw which was also to be heard on February 4. Intervenor received this notice on February 2. The notice advised intervenor:

"TO: JUDITH REA n/k/a WOLFF: Be advised that to insure your proper notification on all matters pertaining to this cause, you should retain other counsel immediately or file with the Clerk of the Court in this cause within fourteen (14) days hereof, your own supplementary appearance, stating therein an address wherein service of notice of this cause may be had upon you. Your failure to secure other counsel or to file your own appearance will result in judgment by default or dismissal of your case."

Counsel's motion asked for leave to withdraw, that intervenor be granted time to prepare and file a response to the petition for visitation, that the court continue the hearing on the petition, and that the court allow intervenor a reasonable time to secure substitute counsel.

On February 4, 1988, intervenor did not appear. Counsel advised the court that intervenor indicated that she would not appear at the hearing despite counsel's advice to her that she do so. Over plaintiff's objection that the motion was not timely and not in compliance with local rules, the court allowed intervenor's counsel leave to withdraw. It then entered a visitation order which it stated would be "without prejudice to [intervenor] to retain other counsel and come in and strike a challenge to it if she wishes to do so and set it down for a hearing." The written order allowing withdrawal provided: "That any order entered regarding visitation is without prejudice to the Intervenor and is by separate order reflecting the Court's decision after allowing the above stated withdrawal [ sic ]." The court ordered that plaintiff was to have visitation with Christianne from 9 a.m. to 6:30 p.m. every Tuesday, Thursday, and Saturday, commencing February 9, 1988, with transfer of possession of Christianne to take place at the Wheaton police department.

On February 5, 1988, intervenor filed pro se a "Motion to Reconsider or Vacate Order for Visitation of February 4, 1988," pursuant to section 2 -- 1203 of the Civil Practice Law. She alleged the visitation order was improperly entered because she was not properly notified and was without counsel at the time; that the court erred in entering an order of unsupervised visitation without hearing testimony that would justify lifting the prior supervision requirement; and that the court did not have jurisdiction to enter the visitation order. Intervenor's notice of motion recited that she did not yet have an attorney and, further, that "It is my understanding ...


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