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01/03/94 MARRIAGE GRACE E. JEROME

January 3, 1994

IN RE MARRIAGE OF GRACE E. JEROME, PETITIONER-APPELLEE, AND TERRY T. MARTINEZ, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of St. Clair County. No. 91-D-1473. Honorable Richard A. Aguirre, Judge Presiding.

Maag, Lewis, Chapman

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Respondent, Terry Martinez, appeals from a judgment of dissolution of marriage entered on June 12, 1992, dissolving the bonds of matrimony between the respondent and the petitioner, Grace Jerome. On appeal, respondent raises the following issues:

(1) Whether the trial court committed reversible error for failing to bifurcate the dissolution proceedings and more particularly for failing to hear grounds first.

(2) Whether the trial court abused its discretion in finding that grounds of extreme and repeated mental cruelty had been established.

(3) Whether the trial court abused its discretion in the distribution of marital property.

(4) Whether the trial court erred in finding that respondent had dissipated marital assets in the sum of $2,500 and awarding petitioner a judgment against respondent for the total sum.

(5) Whether the trial court erred in awarding petitioner the sole custody of the minor children of the parties.

The parties were married on August 8, 1981, in Narragansett, Rhode Island. It was the second marriage for respondent and the first marriage for petitioner. Two children were born to the parties, Laura and Daniel, who were respectively eight and six at the time of the dissolution. Respondent also had two grown daughters from his previous marriage.

In 1991, petitioner was employed part-time teaching at St. Louis College of Pharmacy and was attending law school. Respondent was a tenured professor teaching at St. Louis College of Pharmacy. Sometime during 1991 the respondent became ill, and he did not work from November 26, 1991, through April 3, 1992. During the period of time when respondent did not work, he saw 22 doctors and had numerous tests.

On November 30, 1991, the petitioner took the minor children and vacated the marital domicile of the parties. Petitioner and the children spent approximately one week in a hotel, then they went to the State of New York to petitioner's parents' home. The children were not in school from the first week of December until school resumed in January 1992 after the Christmas break.

On December 9, 1991, the petitioner filed in the circuit court of St. Clair County a petition to dissolve her marriage to the respondent alleging grounds of extreme and repeated mental cruelty and, among other things, sought the sole custody of the parties' children. On the same date, petitioner also filed a petition for temporary custody, temporary support, exclusive control of the premises, and other related relief. In her temporary petition, petitioner alleged that respondent had, on December 2, 1991, cashed in the parties' money market account and certificates of deposit in the sum of $17,000 and was withholding all the funds from petitioner.

On December 18, 1991, respondent filed a petition for temporary relief and a petition for an order of protection. In his petition for order of protection, respondent alleged that petitioner removed the minor children from the marital residence, school, and the State of Illinois without his permission and, thereby, had restricted his access to the children. In his petition for temporary relief respondent sought the temporary custody of the children or, in the alternative, liberal visitation, and the exclusive possession of the marital domicile for his "physical and mental well being", as he was undergoing treatment for a medical condition which had temporarily placed upon respondent physical limitations.

On December 19, 1991, apparently by agreement of the parties, the court entered an order which provided that both parties consented to the exchange of medical and psychiatric records and further ordered each of the parties to undergo psychiatric evaluation and treatment through a psychiatrist of their choice. Petitioner was ordered to return the children to Illinois at her expense, to obtain an apartment in St. Clair County, and to reenroll the children in school they had attended. Respondent was awarded the exclusive possession of the marital domicile, and the parties were granted the joint temporary custody of the children with each party being entitled to the "maximum involvement and participation in the raising and development of the children." Both parties were enjoined from the dissipation of marital assets for the expenditure of items which were not necessities of life or normal expenses in the ordinary and regular course of business. Respondent was granted visitation each Friday from 5:00 p.m. to Saturday at 7:00 p.m., each Monday after school until Tuesday morning, each Wednesday after school to take to school on Thursday, and such other times as petitioner was unavailable to personally care for the children. Petitioner was to have the children at all other times and at any time respondent was unable to personally care for the children.

On December 29, 1991, petitioner with her parents escorted and returned the minor children of the parties to the respondent at the marital domicile. Respondent's parents were present also, and an altercation took place. Respondent had petitioner and her parents arrested for disorderly conduct alleging in the criminal complaints that petitioner and both of her parents had called him a "dirty bastard". The petitioner and her parents were ultimately acquitted of all charges after a hearing in April 1992.

On February 3, 1992, during a pretrial conference the parties jointly asked the court to appoint a psychologist to evaluate the parties regarding custody of the children. Pursuant to section 605 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 101, et seq. (now 750 ILCS 5/101 et seq. (West 1992))), the court appointed Daniel Cuneo, PhD., to evaluate the parties and the children, if necessary.

Subsequent to the events and arrests of December 29, 1991, the court entered a detailed order on February 11, 1992, setting forth with great specificity the items of nonmarital personal property that petitioner could remove from the marital domicile as well as the exact time petitioner could access the marital domicile and the number and sex of the persons petitioner could employ to assist. The petitioner was also granted leave to remove the two family dogs from the marital home to board them with a veterinarian to care for them until such time as a new home could be found.

An evidentiary hearing on the petitions for temporary relief was held on March 30, 1992. The court, based upon its independent evaluation of the record, readopted the terms of the order entered December 19, 1991, regarding custody and visitation.

Dr. Cuneo filed on May 19, 1992, his written report to the court. After interviewing both parties, testing both parties, and interviewing the children, Dr. Cuneo concluded that it would be in the best interests of the children to award custody to petitioner as she was found, in Dr. Cuneo's opinion, to be the more psychologically stable parent. In his report, Dr. Cuneo states that petitioner claimed that she left respondent as respondent was obsessed with having a life-threatening illness despite numerous physicians stating that he had no major physical difficulties. Further, respondent refused to seek psychiatric help despite it being recommended by his treating physicians. Petitioner claimed that respondent's behavior had became increasingly bizarre. Petitioner vacated the marital domicile in late November 1991 hoping that respondent would seek psychiatric help, and petitioner was fearful that respondent would hide the children as he had attempted to do with one of his daughters from his first marriage. The report recites respondent's claim that petitioner had abandoned him when he was near death and that petitioner always put her career before respondent and the children. Respondent insisted that he was the parent that provided the primary care for the children, and respondent expressed a belief that petitioner, if she was granted sole custody, would push the children aside.

Based upon his testing and evaluations, it was Dr. Cuneo's express opinion that petitioner had no major psychological difficulties which would impair her parenting functions. Respondent, however, was found to have difficulties that might impair his parenting abilities such as his hypochondrical obsession with death and illness. Repeatedly throughout his interview session, respondent spoke to Dr. Cuneo of his illness. Respondent was convinced that the illness was life threatening, and he was obsessed with confirming that he had, in fact, a major illness. In his quest for confirmation, respondent related to Dr. Cuneo how he had self-cleansed his scrotum with alcohol and aspirated with a small needle fluid from his epididymis which he sent to a lab for testing. Various doctors rendered various opinions of the type of illness that respondent had. One doctor determined that respondent suffers from an obsessive-compulsive personality disorder and another opined that respondent suffers from an adjustment disorder with mixed emotional features.

Respondent reported to Dr. Cuneo that the only reason that he was seeing a psychiatrist was in an attempt to guard himself against someone labeling him as "crazy". Respondent stated his belief that at the root of all his difficulties was the fact that petitioner gave him a sexually transmitted disease. In Dr. Cuneo's opinion such a belief allows respondent to project all blame for all problems on petitioner since she rejected him. Further, Dr. Cuneo felt that respondent's obsession with death and physical illness hindered his ability to provide for the physical needs of the children.

Dr. Cuneo found that both children were confused by respondent's actions as respondent has turned himself into an invalid. Laura related that respondent told her that when he dies she will have to be a mother to Daniel. Both children reported to Dr. Cuneo respondent's conversations regarding his own imminent death and coffins. Both children expressed many fears of death and abandonment and stated that they wanted to live with their mother even during the interviews in which respondent brought them to see Dr. Cuneo. With respect to the issue of joint custody, Dr. Cuneo opined that joint custody would not work as the parties are unable to work together in any type of decision making for the children.

On May 29, 1992, a trial of this matter was held. At trial, petitioner called as her first witness Dr. Cuneo, who testified consistent with his written report. Dr. Cuneo admitted that he had not seen the respondent since February and respondent, at the time of trial, physically appeared to have greatly improved.

For her second witness, petitioner called Cheri Schutzenhofer. Mrs. Schutzenhofer was Laura's kindergarten teacher and testified that petitioner was often at school and concerned about the child. The witness related that she usually saw petitioner twice a month but had never met respondent. Since Laura's promotion from kindergarten, Mrs. Schutzenhofer stated that she has observed petitioner with both children at Khoury league games and various other places in the Fairview Heights area. She also testified that petitioner had volunteered to read stories to students at the school library during the school year, and this led to regular contact with petitioner. Mrs. Schutzenhofer described petitioner as having a good relationship with her children.

The third witness to testify for petitioner was Deborah Bushey, the social worker at the elementary school attended by the parties' children. Ms. Bushey related some of the problems Laura was experiencing prior to and after her parents' separation and the petitioner's involvement in the child's counseling. Ms. Bushey related that near the end of Laura's counseling, shortly prior to the trial, respondent requested and attended one conference to discuss Laura's counseling.

The next witness called by petitioner on the first day of trial was Robert E. Smith, the Dean of the St. Louis College of Pharmacy. Mr. Smith testified that he was acquainted with both parties and, further, testified to their employment at St. Louis College of Pharmacy, respondent's illness, the local average salary for a pharmacist, and the local average salary for a full-time pharmacologist in a teaching position.

The last witness to testify on May 29, 1992, was Dr. Olga DeTorres, a clinical pharmacist employed at Mount Sinai Medical Center in Chicago. Dr. DeTorres testified that she has known petitioner for 11 years and respondent for 10 years. She and petitioner frequently exchanged letters, phone calls, and visits. Dr. DeTorres stated that she visited the parties about once a year. Occasionally the parties and the children would visit her in Chicago. Dr. DeTorres related that petitioner had a "fine, normal, maternal relationship with her little ones" and that respondent also had a fine relationship with the children. Dr. DeTorres recounted a telephone call that she had received from respondent in the winter of 1992. During the phone call, respondent accused petitioner of being unfaithful, contracting a venereal disease, giving it to respondent, and thereby causing respondent's illness.

On Monday, June 1, 1992, the trial resumed and petitioner was the first witness. Petitioner testified at length regarding respondent's illness and its affect on her and the children. Petitioner testified extensively regarding the lists and values of marital and nonmarital property that she had prepared. She told the court of her preference to be awarded the sole custody of the children and alternate-weekend visitation for respondent. She testified that respondent, over the last two years of the marriage, had become an unfit parent. To support the claim of unfitness, petitioner cited respondent's obsession with his own health as well as his obsession with the children's health and well-being.

Petitioner described incidents that occurred during the marriage in which respondent would become frantic if the children were ill or injured. In 1988 Daniel fell, and while respondent was transporting the child to the doctor, he made a left-hand turn and the vehicle he was driving was struck by an oncoming car. In 1987 when Laura was in kindergarten, she was struck in the eye by another child resulting in her eye being red. Although the blow to Laura did not result in a black eye or serious injury, respondent wanted Laura removed from her school because of the incident.

Petitioner also reported examples of respondent's extreme over-protectiveness, which caused the children distress. According to petitioner, minor ailments that the children acquired such as sniffles resulted in respondent taking the children to the doctor and insisting on throat cultures. Respondent objected to Daniel playing soccer during the pendency of the divorce, and after one of the soccer games, respondent requested that petitioner take out her stethoscope and listen to Daniel's chest as respondent claimed the boy was complaining of chest pains. Petitioner then explained that Daniel was breathing hard because he had just played soccer for an hour. Because petitioner refused to perform an examination on Daniel, respondent took the child to the doctor a week later to have Daniel examined for the prior chest pains and shortness of breath.

Petitioner also insisted that respondent stifled the children's ability to participate. Laura, at eight, was invited to a roller skating party, and because respondent felt that the activity was dangerous, he insisted on staying with the child during the entire party. This upset the child. Respondent objected to Daniel playing T-ball and continually supervised and instructed the child during the game by walking into the batter's box, following the child around the bases, and standing behind home plate while the child was catching.

Petitioner disputed respondent's claim that he was the primary caretaker of the children during the marriage. Petitioner testified that during the marriage she did all the physical things related to the children's primary care. She prepared their dinner, attended all teacher conferences, helped with homework, prepared lunches, and purchased all of their clothing, toys, Christmas gifts, and presents. Petitioner said that she took the children to the majority of their extracurricular activities, gave them baths, and took them for their haircuts.

Petitioner described the children as being "shell shocked" during the five to six months of temporary joint custody. During the period of temporary joint custody, the children received one bath each at respondent's home and were sent to school by respondent inappropriately dressed. Petitioner expressed her belief that joint custody would not work because respondent "demands, badgers, and insists on having his way".

Petitioner testified that one of the primary reasons she left the marital domicile was because respondent had invited his parents into the marital residence over her objections. Respondent believed that he needed to be cared for by his parents. Respondent's mother accused petitioner of making respondent ill and followed petitioner around the house for 20 to 30 minutes at a time yelling and shouting at petitioner in front of the children. Petitioner indicated to respondent that she could not live in the marital residence while his mother was present. Petitioner testified that she asked respondent to ask his mother to leave and also requested respondent to see a psychiatrist. Respondent refused both of petitioner's requests, and petitioner left the marital domicile with the children because she found life in the marital domicile "intolerable". Petitioner stayed with the children in a hotel room for a week but was forced to go to New York to her parents' home because she had limited funds. This was due to respondent withdrawing $17,000 from their savings.

Following petitioner's testimony on issues of custody, property, child support, and why she left the marital residence, a brief grounds hearing was held. Petitioner testified that respondent had been guilty of extreme and repeated mental cruelty. This alleged cruelty consisted of respondent accusing petitioner of being unfaithful, infecting him with a disease, and moving his parents into the marital domicile. Petitioner stated that respondent's conduct caused her to become upset and emotionally anguished and that she had done nothing to provoke his conduct.

Respondent also testified on June 1, 1992. He related that in November of 1991 he was in terrible physical shape. He had swollen lymph nodes under his arm and in the region near his groin. Respondent related that he suffered with a very sore throat and experienced intense pain all down his legs including his feet. Respondent admitted to doing research in an attempt to determine the cause of his illness and repeatedly requested of the numerous doctors he saw to perform examinations and tests in addition to the examinations that they ordered. Respondent related that his health continued to deteriorate during December of 1991. By January of 1992 he barely was able to walk. By February 1992, when he saw Dr. Cuneo, respondent stated that he was getting a bit better. Respondent admitted aspirating his scrotum with a needle because the doctors refused to comply with his request to do so.

Respondent testified that prior to his illness in 1991 he was providing for the care of the children. He stated that he would come home early from work to take care of them and fix their supper. He dropped them off at school or before they went to school at the baby-sitters. If the children were sick, he took them to his place of employment or stayed home with them. Respondent explained that petitioner would not miss a class when the children were sick, and he denied being obsessive about the children's care or well-being.

Respondent called as his only witness Doris Shermer, a neighbor of the parties. Ms. Shermer testified that she had provided child care for the parties from four months prior to the birth of Daniel until approximately four months after his birth. Ms. Shermer testified that it was usually respondent who picked up the children from her home and that to her knowledge respondent always conducted himself in an appropriate, loving, and affectionate manner toward his children. During her testimony, Ms. Shermer also stated that she had never observed inappropriate activities or behavior between petitioner and the children.

After Ms. Shermer testified, respondent again testified. Respondent related that he had prepared a listing of all the money, including the parties' $17,286.48 savings. He admitted spending the savings after the petitioner left the marital domicile. Respondent testified that at the time petitioner left, he did not have safe, reliable transportation, so he purchased an automobile for $9,102.10 and paid off the AT & T Universal card that petitioner had charged $2,428 on. He testified that "virtually all of the $17,000 was gone by the end of December." Respondent's written summary entered as an exhibit is as follows:

$500 Living expenses during December 1991

$500 Given to petitioner at her request

$9,102.10 Used to purchase a 1991 Dodge Spirit

$2,500.00 Expended on attorney fees

$500.00 Spent on lab fees, doctors fees, and living

expenses

$2,428.55 Payment on the AT & T Universal Credit Card

$13.75 Caseyville Water

$49.13 Illinois Bell

$121.00 Society of ...


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