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04/12/89 In Re Marriage of Gordon Hugh Engelbach

April 12, 1989

IN RE MARRIAGE OF GORDON HUGH ENGELBACH,


Before reaching the merits of this appeal, we note that respondent's brief is in violation of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)). That rule, which became effective on August 1, 1988, provides that in all cases appealed to the appellate court, the appellant shall set forth a brief statement or explanation of the basis for the appeal under the heading "Jurisdiction." (122 Ill. 2d R. 341(e)(4)(ii).) Respondent's brief was filed on November 16, 1988, but does not contain a jurisdictional statement as required by Supreme Court Rule 341(e)(4)(ii). While failure to comply with our supreme court rules can result in the waiver of issues on appeal, we have elected not to impose that sanction here given the relative youth of the new rule. However, future violations of this rule will be met with appropriate sanctions.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, and DONNA YOUNG ENGELBACH,

Respondent-Appellant

537 N.E.2d 372, 181 Ill. App. 3d 563, 130 Ill. Dec. 305 1989.IL.516

Appeal from the Circuit Court of Du Page County; the Hon. C. Andrew Hayton, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. NASH and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Respondent, Donna Engelbach, n/k/a Donna Matthews, appeals from an order of the circuit court of Du Page County modifying a judgment of dissolution of marriage and transferring the custody of her two minor children to petitioner, Gordon Engelbach. Respondent contends that: (1) the trial court erred by admitting evidence that her new husband was convicted of aggravated criminal sexual abuse and criminal sexual assault; (2) the trial court erred in prohibiting her from offering evidence to rebut the facts underlying those convictions; and (3) the trial court's decision was against the manifest weight of the evidence. We affirm.

Petitioner and respondent were married on August 12, 1972, and had two children, Sara, now nine years old, and Christopher, now seven years old. On February 19, 1986, petitioner and respondent obtained a dissolution of their marriage. Pursuant to the terms of a written separation agreement incorporated within the judgment of dissolution, respondent was granted custody of the children.

Prior to the dissolution of her marriage with petitioner, respondent established a relationship with David Matthews. On February 2, 1987, Matthews was convicted of aggravated criminal sexual abuse and criminal sexual assault involving his own minor daughter. The convictions were based on indictments alleging that Matthews touched his daughter's vagina for the purpose of his own sexual arousal and further engaged in an act of sexual penetration with his daughter by placing his penis in her vagina. Matthews was convicted of both charges after he stipulated to the facts underlying those charges. Matthews was sentenced to serve three years' probation with eight months' periodic imprisonment in a work release program. Matthews was also ordered to attend counseling and was prohibited from contacting the victim without court approval.

On February 18, 1987, petitioner filed an emergency motion seeking to enjoin respondent from allowing Matthews to be in the presence of the Engelbach children. Petitioner's motion referred to Matthews' criminal convictions as a basis for the relief sought and was supported by certified copies of the indictments and judgment orders.

On March 30, 1987, petitioner and respondent entered into an agreed order providing that Matthews would only be allowed to be with the children in the presence of another adult. That order further set the cause for a hearing on July 15, 1987. On that date, respondent filed her answer to petitioner's request to admit facts and acknowledged that Matthews had been convicted of aggravated criminal sexual abuse and criminal sexual assault. The trial court continued the agreed order to July 1988.

On May 10, 1988, petitioner filed an emergency motion for temporary custody, child support, and termination of maintenance. Petitioner's motion alleged that respondent and Matthews were married on May 7, 1988. That motion further stated that it was in the best interests of the children for them to be placed in the temporary custody of petitioner. Petitioner also filed a motion seeking permanent custody and child support. The trial court denied petitioner's motion for temporary custody, terminated maintenance, and set the cause for a hearing on June 20, 1988.

On June 20, 1988, the trial court held a hearing on petitioner's motion for a change of custody. The hearing began with the parties arguing cross-motions in limine. Petitioner sought to bar respondent from introducing any evidence attacking Matthews' criminal convictions. Petitioner noted that respondent had previously admitted knowledge of the criminal convictions in her answer to petitioner's request to admit facts. Respondent argued that the convictions could not be used against her since she was not the defendant in the criminal proceedings, and, in any event, she was entitled to rebut that evidence. The court then engaged the parties' counsel in the following colloquy:

"THE COURT: Was he convicted as a result of a plea of guilty or as a result of trial?

MS. MICHELI [Respondent's counsel]: There was a stipulation.

MR. TEDROWE [Petitioner's counsel]: Stipulation to the facts underlying. There were 12 indictments. He stipulated to the facts, represented by Attorney Thomas Newman, stipulated to the facts as to a Class ...


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