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In re the Marriage of Abma

November 01, 1999


Rakowski and Gallagher, JJ., concur.

The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

Honorable James G. Donegan, Judge Presiding.

Kimberly Anderle Abma, respondent, appeals from a judgment dissolving her marriage to Terry Abma, petitioner, and dividing the marital property between the parties. Respondent raises two issues on appeal: (1) whether the trial court erroneously denied her motion for a substitution of Judge; and (2) whether the trial court abused its discretion in dividing the marital estate. For the reasons that follow, we affirm.

Petitioner and respondent were married on July 27, 1987. At the time, petitioner and respondent both worked for the Darien police department, but respondent had plans to attend law school. The two decided that it would be best for respondent to complete her legal education in as short a time as possible, so respondent ended her employment with the police department shortly before the wedding. She had earned $22,000 a year from her employment as a police dispatcher.

Respondent then entered law school in January of 1988. Respondent did not work outside the home during her first year of school. Respondent's first year of law school was financed by obtaining student loans and using the funds from her Illinois Municipal Retirement Fund, worth approximately $5,000. The parties used marital funds to pay for respondent's law school textbooks.

In addition to attending law school, respondent contributed to the marital estate by working part time as a research assistant during her second year of law school, and by obtaining a half scholarship for her third and final year of school. Petitioner contributed to the estate by continuing to work full time as a police officer. After respondent graduated and obtained her law license, the parties agreed that she should open her own law practice. Respondent maintained her own practice from May of 1991 until January of 1995. Although she never drew a salary from the practice, she used monies from the business to make mortgage payments, repay student loans and purchase a home computer.

Petitioner owned his own home prior to the marriage, which he later contributed to the marital estate by placing it in joint tenancy with respondent. Before their marriage, the home had a value of approximately $74,000 and a mortgage balance of $11,856. The parties refinanced their home to help pay for respondent's education and law practice. They obtained loans in the amount of $38,000, $50,000, $89,200 and $8,000, using the home as collateral, ultimately reducing the equity in the home from $64,000 to $32,000. The parties separated in January of 1995. Petitioner then filed a petition for dissolution of the marriage on October 5, 1995. On August 22, 1996, the court scheduled a pretrial conference to take place on October 21, 1996. On that date, the parties participated in a pretrial conference before the trial court. By December 1996 it became clear that a settlement regarding certain marital assets could not be agreed upon, so the court set the matter for trial on March 19, 1997. On February 21, 1997, four months after the pretrial conference, respondent petitioned the court for a substitution of Judge, which the court denied. The matter went to trial in July of 1997.

At trial, petitioner testified that he had worked as a deputy police chief at the Darien police department for 25 years. Prior to the marriage he had a credit card debt of approximately $500. At the end of the marriage, he had incurred $9,000 of credit card debt, owned a 1990 automobile, and had savings of $1,211. The parties stipulated to their earnings during the marriage. The stipulation detailed each spouse's income throughout the marital years. The stipulation provided that, in 1988, respondent drew no earnings while petitioner earned an annual salary of $43,123. In 1989, petitioner earned $41,919.23, while respondent earned $1,192.75. Petitioner continued to earn a steady annual income as a police chief, with his salary for the final year of the marriage increased to $54,152. Respondent's income, however, peaked in 1991 at $2,088 and declined steadily after 1991. For example, in the years 1992, 1993, and 1994, respondent's law practice cost the marriage $12,899, $24,441, $11,792, respectively. At the Conclusion of the trial, the court issued its findings and distributed the marital assets between the parties. At the time of trial, petitioner, age 50, remained employed as a police officer with the Darien police department at a salary of $67,000, while respondent, age 39, earned approximately $32,000 a year as an attorney with a legal aid clinic. The court further found that at the time petitioner entered into the marriage, his equity in the home amounted to approximately $64,000, but at the time of dissolution, the equity had been reduced to $32,000 as a result of the parties' repeated refinancing. Finally, the court took note of the fact that respondent's student loans cost the marriage $23,776.91, while her legal practice cost the marital estate a total of $42,743.57.

In distributing the marital assets, the court stated that it considered the duration of the marriage, the contribution of each party to the acquisition, preservation, increase or decrease in the property, and the opportunity for each spouse to acquire assets and income in the future. The court awarded to petitioner the complete equity in the marital residence, the furniture, his individual retirement account, the non-marital portion of his pension plus one half of the marital portion of the pension funds. Respondent received the remaining half of the marital portion of petitioner's pension, and respondent was required to pay her remaining law school debt of approximately $10,000. The court required petitioner to assume the remaining credit card debt from the marriage, in the amount of approximately $9,000. No children were born of the marriage, and the court barred both parties from seeking maintenance. Respondent now appeals. ANALYSIS I. Respondent's Motion for Substitution of Judge Respondent initially contends that the trial court erred in denying her motion for a substitution of Judge. She asserts that each party has an absolute right to a substitution of Judge provided that no substantive rulings have yet been made in the case. Respondent claims that the court erroneously denied her motion based on the occurrence of a pretrial conference. Respondent does not deny taking part in a pretrial conference, but she claims that the court did not make any substantial rulings and therefore should have granted her motion. Petitioner disputes this contention, arguing that respondent's motion was untimely because it was filed after a pretrial conference during which respondent had an opportunity to gain insight as to the trial Judge's attitude toward the case based on the settlement recommendation.

According to section 2-1001 of the Code of Civil Procedure, either party to a civil action may petition for a substitution of Judge for several different reasons. 735 ILCS 5/2-1001 (West 1996). First, either party may petition for, or the court on its own motion may grant, a substitution of Judge if the original Judge presiding over the case has an interest in the proceedings. 735 ILCS 5/2-1001(a)(1) (West 1996). Second, either party may petition the court for a substitution of Judge as of right, provided that the party timely exercises that right. 735 ILCS 5/2-1001(a)(2) (West 1996). Finally, either party may petition for a substitution of Judge for cause. 735 ILCS 5/2-1001(a)(3) (West 1996).

We note that effective January 1993, the legislature amended section 2-1001 and added section 2-1001.5 to distinguish between "changes of venue" and "substitutions of Judge." 735 ILCS 5/2-001, 2-1001.5 (West 1994). Case law published prior to January 1993 refers to motions for "change of venue" and motions for a "substitution of Judge" interchangeably.

Here, respondent filed a motion requesting a substitution of Judge as of right, pursuant to section 2-1001(a)(2). Section 2-1001(a)(2) explains that an application for such a substitution may only be granted if it is presented both before the trial or the hearing begins and before the original Judge has ruled on any substantial issue in the case. 735 ILCS 5/2-1001(a)(2) (West 1996). The right to a change of venue is absolute where a motion is filed before trial or hearing or before the Judge presiding in the case has made any substantial ruling. 735 ILCS 5/2-1001(a)(2); In re Dominique F., 145 Ill. 2d 311 (1991). A petition may be considered untimely if filed to delay or avoid trial. Sahoury v. Moses, No. 1-98-4537, slip op. at 3 (October 22, 1999). If timely made, the right to a change of venue is mandatory, so that the trial court has no discretion to deny a timely and properly filed petition for change of venue. Hartnett v. Stack, 241 Ill. App. 3d 157 (1993).

The reasoning behind this principle is that one should not be compelled to plead his cause before a Judge who is prejudiced, whether actually or only by suspicion. The corollary to this principle, however, is that a petition for a substitution of Judge must be brought at the earliest practical moment in order to prohibit a litigant from seeking a change of Judge only after the litigant has formed an opinion that the ...

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