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07/25/95 MARRIAGE PAULA ZANDER PETITIONER-APPELLEE

July 25, 1995

IN RE: THE MARRIAGE OF PAULA ZANDER, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND JOHN ZANDER, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


Appeal from Circuit Court of Sangamon County. No. 92D278. Honorable Thomas P. Carmody, Judge Presiding.

As Corrected August 28, 1995.

Honorable John T. McCULLOUGH, J., Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

On December 22, 1993, following the close of all the evidence, Judge John Keith read into the record his detailed findings of fact and oral orders regarding the parties' action for dissolution of marriage. Judge Keith awarded petitioner (1) custody of the parties' two minor children with liberal visitation for respondent (the parties also have an adult child residing with petitioner); (2) slightly more than one-half of the parties' marital assets, including the marital residence free and clear of the mortgage (which was assigned to respondent); (3) child support of $3,600 per month, a sum below the statutory guidelines of $5,455.50 per month; (4) permanent maintenance of $8,300 per month; and (5) attorney fees of $30,000. Judge Keith directed petitioner's counsel to prepare a written judgment and orders of withholding setting forth the findings of the court. The judge then stated:

"That the terms herein are effective as of January 1, 1994 as to the maintenance and child support provisions, and except for the previous orders regarding the holiday visitation, all other orders of property, child custody, visitation and other items are effective instanter.

Any issues of reconsideration will not be heard by this Court until a written judgment has been entered."

No written order was entered prior to January 18, 1994, when Judge Keith was removed from the bench per an order of the Illinois Courts Commission. Following petitioner's motion for entry of judgment and submission of a proposed order, successor Judge Carmody on April 28, 1994, granted the motion and entered judgment nunc pro tunc to February 1, 1994. It is undisputed that Judge Keith decided all of the issues in the case and that the written judgment conforms to the decision made by him.

Respondent filed a motion for rehearing pursuant to section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 1992)), challenging maintenance, property distribution, custody, and the propriety of entry of judgment by Judge Carmody. Following a hearing on respondent's motion, Judge Carmody made a docket entry indicating he had reviewed the transcripts of proceedings before Judge Keith, the authorities cited by the parties, and arguments of counsel, and was allowing the motion in part. He reduced maintenance from $8,300 to $4,500 per month, reduced respondent's summer visitation with the children from five weeks to four, ordered the marital assets reapportioned such that each party receive equal shares of approximately $911,000 with petitioner to receive $200,000 in income-producing assets (as opposed to the prior provision of $35,000 in income-producing assets), and adopted the findings of Judge Keith in all other material respects. The amended judgment order was entered October 3, 1994.

On appeal, respondent contends he is entitled to a new trial because (1) entry of judgment by a successor judge based on the oral findings and orders of his predecessor was improper, (2) he was denied a right to post-trial reconsideration by the trier of fact, (3) there was a showing of bias on the part of the predecessor judge, and (4) the successor judge erred in calculating the reduction in maintenance. Petitioner cross-appeals the reduction in maintenance provided for in the amended judgment.

There is no dispute that Judge Keith's findings did not constitute a formalized final judgment. Supreme Court Rule 272 provides:

"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed." (134 Ill. 2d R. 272.)

While respondent admits that Judge Keith did make oral findings and orders relative to all issues in contention, he contends Judge Carmody improperly entered judgment based on those findings because Judge Keith did not intend his findings to be considered a final order and since Judge Carmody was not the trier of fact, he lacked the opportunity to observe the witnesses and make credibility determinations. Respondent cites In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 968, 469 N.E.2d 440, 441, 82 Ill. Dec. 906, a case inapposite to the facts here because the predecessor judge had announced no orders or findings of fact, and the successor judge entered an order respecting custody based on the transcripts alone. Judge Keith, as the trier of fact, had observed the witnesses, made credibility determinations, and expressly resolved all issues in controversy. Respondent has pointed to nothing in Judge Keith's oral pronouncement that renders his findings preliminary or tentative, i.e., that entry of a written judgment would be anything more than a ministerial act. Judge Carmody's entry of a judgment order merely formalized those rulings.

In In re McMahon (1991), 221 Ill. App. 3d 383, 581 N.E.2d 1208, 163 Ill. Dec. 785, a substitute judge signed an order for involuntary commitment based on the original judge's oral findings that the respondent was a person subject to involuntary commitment and the pronouncement was a final judgment and an appealable order. ( McMahon, 221 Ill. App. 3d at 388, 581 N.E.2d at 1211-12.) This court held it was not error for the substitute judge to sign the order because respondent on appeal did not contest any of the factual findings and there was nothing of record to indicate the original judge would have entered an order different from her oral ...


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