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06/28/96 MARRIAGE PHYLLIS WARD PETITIONER-APPELLEE

June 28, 1996

IN RE MARRIAGE OF PHYLLIS WARD, PETITIONER-APPELLEE, AND REGINALD WARD, RESPONDENT-APPELLANT.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. 90 D 17079. THE HONORABLE JAMES G. DONEGAN, JUDGE PRESIDING.

Released for Publication August 13, 1996.

The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS delivered the opinion of the court:

On November 6, 1990, Phyllis Ward (petitioner) filed a petition for dissolution of her marriage to Reginald Ward (respondent) based on the ground of physical cruelty. On September 20, 1993, the case was set for trial on December 9, 1993. On December 9, 1993, a representative of the law firm representing respondent appeared in court and requested a continuance due to the illness of the attorney handling respondent's case. The court denied the request and held the trial without the presence of respondent or his attorney. Respondent's attorney appeared in court after the prove up to object to the trial in his absence. On January 14, 1994, petitioner requested leave to amend the complaint to change the grounds sought from physical cruelty to irreconcilable differences. The trial court granted the leave to amend and issued a final judgment for dissolution of marriage, based on the December 9, 1993, hearing. The judgment stated, inter alia, that respondent's response to the original petition had been stricken for failure to attend a pretrial conference. The court also denied respondent's motions to set aside and vacate the judgment of January 14, 1994. Respondent appeals, contending that: (1) the court erred in refusing to grant a continuance; (2) the court erred in refusing to set aside the default judgment; (3) the court abused its discretion in awarding the bulk of the assets to petitioner and the bulk of the debts to the respondent; and (4) petitioner waived any advantage obtained from the default judgment by amending her petition.

BACKGROUND

Petitioner and respondent were married in Chicago on September 25, 1982, and they had one child during their marriage. Prior to this marriage, petitioner had one child. The proceedings in the case sub judice commenced on November 9, 1990, when petitioner filed a petition for dissolution of marriage based on physical cruelty. Respondent, on March 3, 1992, filed a response to the petition for dissolution of marriage.

On July 30, 1992, petitioner filed her first set of interrogatories and a request for production of documents. Respondent failed to answer the petitioner's discovery requests within 28 days. Therefore, on October 8, 1992, petitioner filed a motion to compel discovery compliance. When the case was called for status later that day, the court entered an order directing that all parties comply with outstanding discovery requests by the close of business on October 12, 1992.

Respondent filed answers to petitioner's first set of interrogatories on October 13, 1992. However, petitioner filed a rule to show cause alleging that respondent failed to produce relevant documents. At the next court hearing, based on the representations of respondent's attorney that all documents had been produced in response to the request for production, the court ordered respondent to file an affidavit of compliance no later than December 14, 1992.

On January 8, 1993, petitioner filed a second petition for rule to show cause. Petitioner based this petition on the fact that respondent had failed to comply with the court order requiring him to file an affidavit of compliance and to produce documents no later than December 14, 1992. At the hearing on the rule to show cause, the court granted respondent until January 28, 1993 to file a written response to the rule to show cause and postponed the hearing on this matter until February 3, 1993.

When the hearing on the rule to show cause resumed on February 3, 1993, the respondent still had not filed a written response. Also, Charles Snowden, the attorney for respondent, was unable to attend, and respondent was represented by one of Mr. Snowden's associates, who was not prepared to argue the rule to show cause. Therefore, the court sanctioned respondent and ordered him to pay the attorney fees incurred by petitioner.

On February 16, 1993, respondent tendered documents in response to petitioner's deposition notice. The respondent also tendered to the court an affidavit of compliance which the court had previously ordered him to file by December 14, 1992. However, respondent never answered the petitioner's request for production of documents. As a further attempt to reduce future discovery problems, the court ordered respondent to appear for his deposition before March 6, 1993.

On March 9, 1993, the case was called for pretrial status. This date had been set by an agreed order that had been entered by respondent's attorney. However, respondent's attorney failed to show on this date. As a result, the court sanctioned respondent once again and required him to pay attorney fees.

In anticipation of the upcoming trial, petitioner filed a request to admit facts and genuineness of documents. This request was never answered by respondent. On March 17, 1993, petitioner filed another petition for rule to show cause relating to respondent's failure to appear for the pretrial conference. Petitioner supported this petition by citing that respondent failed to appear in court on several occasions, failed to produce documents in a timely fashion, and failed to appear for his deposition as ordered to ...


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