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03/28/89 In Re Marriage of Dennis D. Kenik

March 28, 1989

IN RE MARRIAGE OF DENNIS D. KENIK, PETITIONER AND


Dennis asserts first that the circuit court erred in failing to grant his motion to change venue. Prior to the filing of his motion, Dennis contends, the court ruled only on his request to file a response to Irene's petition for bifurcation of judgment, and therefore, entered no substantive rulings precluding a substitution of Judges.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Counterrespondent-Appellant, and IRENE T. KENIK,

Respondent and Counterpetitioner-Appellee

536 N.E.2d 982, 181 Ill. App. 3d 266, 129 Ill. Dec. 932 1989.IL.404

Appeal from the Circuit Court of Cook County; the Hon. James G. Donegan, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. EGAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Petitioner/counterrespondent, Dennis D. Kenik (Dennis), appeals from circuit court orders denying his motions to strike respondent/counterpetitioner's, Irene T. Kenik's (Irene's), petition for bifurcated judgment of dissolution of marriage and to change venue, and granting a bifurcated judgment of dissolution of marriage. We are asked to determine whether: (1) this court lacks jurisdiction to review the circuit court's denial of Dennis' motions to change venue and to dismiss Irene's petition for a bifurcated judgment; (2) the circuit court erred in denying Dennis' motion to change venue, assuming we have jurisdiction; (3) the circuit court erred in finding proper grounds existed to enter a judgment of dissolution of marriage; (4) the circuit court erred in failing to follow its own procedures for the transfer and reassignment of cases; and (5) the circuit court abused its discretion in granting Irene's petition for a bifurcated judgment of dissolution of marriage.

On May 7, 1985, Dennis filed a petition to dissolve his 1978 marriage to Irene. The Keniks have one child, Scott, born in 1983. Irene filed a verified response and a verified counterpetition for dissolution of marriage on July 30, 1985, to which Dennis responded on February 13, 1986. On November 9, 1987, Irene petitioned for entry of a bifurcated judgment of dissolution of marriage, asserting that "appropriate circumstances" for bifurcation existed, as mandated by section 401(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 401(b)).

By order entered November 18, 1987, the circuit court Judge assigned to the case recused himself and directed the case to the presiding Judge for reassignment. On December 15, 1987, the present trial Judge entered two orders. First, he assigned the case to himself. Second, he granted Dennis seven days to respond to the petition for bifurcation of judgment.

Dennis moved on December 21, 1987, to strike the petition for bifurcation of judgment for failure to state a cause of action and to withdraw his petition for dissolution of marriage. On December 29, 1987, Dennis petitioned the court "for [substitution] of [Judges]," insisting that he "[feared] . . . he [would] not receive a fair and impartial hearing in the court in which this cause is now pending due to this [court] being prejudiced against him," and that he filed the petition prior to trial and before the "ruling on any substantive issue." Both the motion to dismiss and the motion to change venue were denied on December 31, 1987.

Following a hearing, the court granted a bifurcated judgment of dissolution on January 21, 1988, explicitly reserving "[all] other issues of child custody and visitation, property division and attorneys' fees." In its January 21 order, the court found an irretrievable breakdown of the marriage due to irreconcilable differences between the parties and that appropriate circumstances existed for the entry of a bifurcated judgment, namely: (1) "[Irene] has learned she is presently pregnant by her fiancee [ sic ] whom she earnestly wishes to marry as soon as possible"; and (2) "[Insurance] coverage for birth and all other maternity expenses can be had under the medical insurance coverage held by [Irene's] fiancee [ sic ]; however, if [Irene] and her fiancee [ sic ] are not married at the time of the birth, none of said expenses will be covered, with the resulting imposition of large medical bills on [Irene]." The court further determined that "[the] likelihood that any . . . equities [ sic ] and complications . . . will result in this case is very remote." Dennis appeals. I

Irene counters that this court lacks jurisdiction to entertain an appeal of the December 31 order, denying Dennis' motions to change venue and to dismiss the petition for a bifurcated judgment. Citing In re Marriage of Bogan (1986), 116 Ill. 2d 72, 76, 506 N.E.2d 1243, Irene correctly observes that the appellate court may review an appeal from an entry of a bifurcated judgment of dissolution but may determine only the propriety of the bifurcation itself; all other issues ancillary to the dissolution claim must be disposed of by the lower court before any are susceptible to appeal. (See In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119, 449 N.E.2d 137.) The statement in the December 31 ruling that "there is no just reason to delay appeal or ...


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