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04/19/95 MARRIAGE COLIN SCOTT MILLER v. BECKY SUE

April 19, 1995

IN RE THE MARRIAGE OF: COLIN SCOTT MILLER, PETITIONER-APPELLEE,
v.
BECKY SUE MILLER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. 93-D-355. Honorable C. Brett Bode, Judge Presiding.

Present - Honorable Peg Breslin, Justice. Honorable William E. Holdridge, Justice. Honorable Kent Slater, Justice. Judge Holdridge delivered the opinion of the court. Breslin, J., concurring. Slater, J., Specially concurring with opinion.

The opinion of the court was delivered by: Holdridge

The Honorable Judge HOLDRIDGE delivered the opinion of the court.

Respondent, Becky Sue Miller, appeals from an order granting a dissolution of marriage and awarding custody of the parties' minor child to the petitioner, Colin Scott Miller. Respondent contends that the trial court erred in denying her request for a continuance after granting her third attorney's motion to withdraw on the day before a scheduled two-day hearing on custody and remaining issues. We agree that the trial court erred in denying her motion for a continuance; however, for the reasons stated herein, we find the respondent waived this issue and we therefore affirm the ruling of the trial court.

The record shows that the petitioner filed a petition for dissolution of marriage on May 5, 1993. Respondent secured the services of an attorney and filed a response to the petition on May 24, 1993. In her response, respondent sought permanent custody of the child. An agreed order was entered on June 7, 1993, which vested temporary custody of the child with respondent and appointed a psychologist to conduct examinations of the parties and the child, as requested by the petitioner. On July 21, 1993, without contest, grounds for dissolution were established.

On September 23, 1993, respondent's attorney filed a motion to withdraw, and on September 30, 1993, a substitution of attorney was filed wherein new counsel entered his appearance for the respondent. On October 1, 1993, petitioner filed a petition for modification of temporary custody and a notice of hearing for November 10, 1993. A notice setting a hearing for all remaining issues on December 9 and 10, 1993, was also filed by the petitioner on October 1, 1993. On October 13, 1993, respondent's attorney filed her response to petitioner's petition to modify temporary custody. On November 1, 1993, respondent filed a motion seeking a psychological assessment of petitioner and the child by her expert. She asserted that the expert's report would be available for the hearing on remaining issues on December 9 and 10, 1993. The motion was granted.

On November 8, 1993, respondent's second attorney filed a motion for leave to withdraw as her attorney. The motion to withdraw alleged irreconcilable differences and the fact that the attorney had been discharged by respondent for failure to follow her instructions. On November 10, 1993, a hearing was held on petitioner's petition for modification of temporary custody and on respondent's attorney's motion to withdraw. Respondent informed the court that she was in the process of hiring new counsel and did not oppose her attorney's motion to withdraw. The petitioner's attorney indicated no objection to the motion to withdraw, provided the withdrawal did not cause the December 9 and 10 hearing on remaining issues to be delayed. The trial court then told respondent that the motion to withdraw would not be granted until a new attorney entered an appearance with the knowledge and understanding that the hearing on December 9 and 10 would not be postponed for any reason. The court ruled that it would not hear the motion on temporary custody as the hearing on remaining issues, including permanent custody, would be held only a month from that date.

On November 17, 1993, respondent's third attorney appeared and stated that he would be ready for trial on December 9 and 10. The court then granted respondent's second attorney's motion to withdraw. However, on December 8, 1993, the day before the hearing on remaining issues, respondent's third attorney filed a verified motion entitled "Emergency Motion to Withdraw and to Continue Trial Setting," and set a hearing on the motion for that same day. In his motion, respondent's attorney alleged that despite his diligence in preparing for trial, he believed that the attorney-client relationship was not "viable" and that it was in the best interest of the respondent that he no longer represent her. He further stated that he did not wish to prejudice respondent's position with the court by stating in detail his reasons for withdrawing.

After lengthy discussions, in which the court appointed a bystanding attorney to act as respondent's guardian ad litem in discussions with her attorney, the trial court gave respondent an ultimatum: either keep her attorney of record for the hearing set to begin the next day, or be prepared to represent herself at that hearing. The court admonished respondent for being uncooperative and told her that she would not be allowed to waste two full days of the court's time. The court reiterated in no uncertain terms that the hearing the next day would take place. Faced with this choice, respondent decided to continue to be represented by her attorney. Respondent's attorney reiterated his motion to withdraw; however, the trial court stated that unless testimony to the contrary was presented it would assume that there was no reason to grant the motion to withdraw. The court suggested that everybody think it over for the night and return to court the next day at which time the attorney could either proceed with the trial or renew his motion to withdraw and present evidence on that motion.

The next morning, the attorney renewed his motion to withdraw, but stated that he could not present evidence in support of his motion without violating privilege. He again asked for a continuance, but indicated that he was ready for trial, if respondent did not agree to his withdrawal. The court then granted the motion to withdraw and set a hearing on petitioner's petition for temporary custody for 1:30 p.m. on the following day. The court instructed respondent to either get another attorney or be prepared to proceed on the matter pro se. Respondent objected to proceeding on any matters until she had an opportunity to find a new attorney, but the court dismissed her objections.

The next day, a new attorney, respondent's fourth, entered his appearance. When the matter was called, this attorney informed the court that he had been retained that morning and that his preparation for hearing consisted of a brief interview of the client and a very brief consultation with the previous attorney. Nevertheless, he indicated to the court that he was "ready" to proceed. He did not request a continuance nor did he object to proceeding on the matter of the petition for temporary custody.

The hearing was held and evidence was taken from the court-appointed psychological expert and from respondent's father. The expert opined that respondent suffered from a paranoid personality disorder and that therefore custody of the child should be given to the petitioner. The record indicates respondent's attorney conducted a brief cross-examination of this witness. The transcript of the father's testimony was not made part of the record on appeal. At the close of hearing, the court took the matter of petitioner's petition for modification of temporary custody under advisement.

On December 17, 1993, prior to the court's ruling on the petition for temporary custody, an agreed order was entered whereby the parties agreed that the evidence heard at the December 10 hearing on petitioner's petition for modification of temporary custody could be used by the court for deciding the matter of permanent custody without the need to recall those witnesses. The agreed order also set January 11, 12 and 14, 1994, as the hearing on all remaining issues. Hearings were held on those dates at which time respondent continued to be represented by her fourth attorney. During those hearings, respondent put on evidence to support her request for permanent custody, including the opinion of her own psychological expert.

On January 21, 1994, the court, relying primarily on the testimony and report of the court-appointed psychological expert, entered an order finding that the best interest of the child required permanent custody be awarded to the ...


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