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12/19/89 In Re Marriage of Carole Lai

December 19, 1989

IN RE MARRIAGE OF CAROLE LAI, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

ANTONIO LAI, Respondent-Appellant

549 N.E.2d 639, 192 Ill. App. 3d 807, 139 Ill. Dec. 913 1989.IL.1979

Appeal from the Circuit Court of Cook County; the Hon. Susan Snow, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. BILANDIC, P.J., and DiVITO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Respondent-appellant, Antonio Lai, appeals the dismissal of his petition for rehearing as to his default judgment and seeks review of the underlying judgment for dissolution of marriage. He raises as issues whether: (1) the doctrine of res judicata precluded the circuit court from hearing his petition for rehearing on the merits; (2) the circuit court erred in defaulting respondent as a sanction for a discovery violation; and (3) the judgment for dissolution of marriage is so fundamentally unjust as to require reversal.

Carole and Antonio Lai were married on June 10, 1973. A daughter, Carla, was born December 22, 1976. Carole filed a petition for dissolution of marriage on March 10, 1982. On November 12, 1982, the circuit court awarded Carole temporary custody of Carla; gave Carole exclusive use of the marital home held in joint tenancy by the couple; and directed Antonio to leave the house by December 1, 1982.

On May 31, 1983, the court ordered Antonio to pay $45 per week in temporary child support to Carole. After several attorney substitutions, Antonio filed a motion in June 1983, seeking to take Carla to Italy to visit her dying grandmother. Orders entered July 15 and July 26, 1983, directed both parties to accompany Carla to Italy for three weeks.

On August 23, 1983, Carole filed a petition for a rule to show cause alleging that, while in Italy, Antonio kidnapped Carla, in violation of the July court orders. An agreed order, dated September 29, 1983, required that the child be returned to Carole and Antonio's visitation rights be restored to him. Antonio had the child returned to the United States in October; however, he remained in Italy until April 5, 1984. The order later was vacated after Carole alleged that she agreed to it under duress to ensure Carla's release, and Antonio was ordered to pay all the attorney fees that Carole incurred while she attempted to locate Carla.

On December 29, 1983, the circuit court held a hearing and found Antonio in willful contempt of the July travel agreement. On January 31, 1984, the court found Antonio in violation of the child support order and sentenced him to one day in jail for every day the violation continued, retroactive to January 8, 1984. Also on January 31, 1984, pursuant to Carole's request, the circuit court required Antonio's employer to pay his employee pension over to Carole.

Carole's attorney scheduled a deposition for Antonio on February 16, 1984. Antonio, still in Italy, failed to appear. Carole immediately filed a motion for sanctions against him and asked the court to set a date certain for the deposition. The court scheduled the deposition two days thereafter, on March 29, 1984, which Antonio again failed to attend. The court struck his pleadings and entered a default on April 2, 1984. On April 13, 1984, Antonio's then counsel, Michael Penn, petitioned that Carole pay his fees and filed a motion to withdraw alleging that Antonio failed to maintain communication with him. A notation on the fee petition states that a mailgram was sent to Antonio in Italy on March 31, 1984. Further, the petition shows that Penn maintained a correspondence with Antonio and attempted to keep his client fully abreast of the developments in the litigation, including the receipt of a Supreme Court Rule 201(k) letter. (107 Ill. 2d R. 201(k).) Another attorney substituted as Antonio's counsel.

A prove up on the default was held on May 1, 1984. The court entered judgment, making the following Dispositions: (1) sentenced Antonio to 118 days in jail; (2) provided Carole with custody of Carla with no visitation; (3) gave Carole the marital home and the family car, both owned jointly by the couple; and (4) incorporated all prior orders into the judgment. Antonio's attorney fee petition was to be heard separately with a later hearing date. Antonio filed a motion to set aside the judgment on May 10, 1984, alleging that he did not know he was unrepresented at the time the default was entered; his limited knowledge of the English language rendered communication with his attorney difficult; he remained in Italy because his attorney told him he would be arrested if he returned; and he returned to the United States on the advice of an Italian lawyer. Carole objected on the ground that the default had been entered more than 30 days before the motion was filed. The circuit court denied the motion on September 27, 1984. Antonio filed a petition to vacate the order pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) (Code), on December 5, 1984, which was denied. On appeal from that order to this court, we ruled that the orders theretofore entered were not yet appealable.

On March 18, 1988, the attorney fee petition was disposed of by an order which directed Antonio to pay Penn $900. Subsequently, he filed a petition for rehearing under section 2-1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1203), alleging that he was improperly defaulted as a discovery sanction and attacking the substantive provisions of the dissolution order. On November 1, 1988, the circuit court ruled that, under the doctrine of res judicata, the May 1, 1984, order could not be considered since the issues had been dealt with during the arguments on the pre-appeal motions. Counsel ...


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