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In re Marriage of Booher

May 03, 2000

IN RE: THE MARRIAGE OF JEFFREY R. BOOHER, PETITIONER-APPELLANT, AND DIANE L. BOOHER, RESPONDENT-APPELLEE. JOHN C. WOOLEYHAN,


Appeal from Circuit Court of Adams County No. 99D64 Honorable Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

In August 1999, the trial court entered a judgment dissolving the marriage of petitioner, Jeffrey R. Booher, and respondent, Diane L. Booher. In its judgment of dissolution, the court (1) ordered Jeffrey to pay Diane $225-per-month maintenance until August 2001; (2) gave Diane the marital residence and all of its contents; (3) apportioned to Jeffrey two boats, a boat trailer, and all outstanding marital debt; (4) ordered Jeffrey to pay Diane's attorney fees; and (5) gave custody of the couple's three children to Diane, with Jeffrey having visitation subject to certain conditions.

Jeffrey appeals, alleging the trial court abused its discretion by (1) not allowing him to present any evidence as a sanction for violating its discovery order, (2) ordering an inequitable distribution of marital property, and (3) ordering restricted visitation. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

The parties married in August 1984. Three children were born of the marriage: Travis, born January 3, 1985; Jennifer, born July 16, 1988; and Cory, born December 6, 1996. In February 1999, the parties separated. Diane and the children remained in the marital residence and Jeffrey moved to a "camp" along the Mississippi River.

In March 1999, Jeffrey filed a petition for dissolution of marriage alleging extreme and repeated mental cruelty. On the same date, he also filed a petition for temporary custody and temporary support. Diane filed a counterpetition for dissolution of marriage alleging extreme and repeated mental cruelty. In May 1999, the trial court ordered all affidavits be filed on or before July 12, 1999, and set a trial date of July 19, 1999. Later the same month, Jeffrey's counsel filed, and the trial court granted, a petition to withdraw as attorney of record based on Jeffrey's concern over attorney fees. Jeffrey proceeded pro se.

On July 15, 1999, Diane filed her pretrial affidavit. On July 19, 1999, the trial court conducted the hearing. At the beginning of the hearing, Diane asked the court to strike Jeffrey's pleadings and to preclude him from presenting any evidence because he failed to file a pretrial affidavit. Jeffrey explained to the court he did not know how to get a form for the affidavit. He said he went to the county clerk in an attempt to get a form, and the clerk informed him he had a July 19 trial date and he could discuss the affidavit then. The trial court struck Jeffrey's pleadings, barred him from presenting any evidence, and proceeded on Diane's counterpetition.

Diane testified she sought custody of the three children. Travis, the eldest (14 years old), was staying at his grandparents' house. She stated her petition alleged mental cruelty because Jeffrey was abusive and hateful, he had an affair, and he struck her. On cross- examination, Diane admitted she told Travis if he could not respect her he needed to leave the home. She told him to leave the house and to call his grandparents to pick him up. She packed some of his clothes and set them outside. Travis resided with his grandparents at the time of the hearing.

Diane testified Jeffrey's visitation with the children should be supervised because he would take the children to the camp and he drinks alcohol at the camp. She feared for the safety of the children at the camp and did not believe Jeffrey adequately supervised the children.

Diane is employed at Janitorial Mixers, cleaning offices. She has a twelfth-grade education and, during a large part of the marriage, did not work outside the home. She had a monthly income of $416.16. In addition, she earned extra money cleaning homes as a side job, with her earnings varying weekly. She sought maintenance and attorney fees because she could not pay her monthly bills.

Jeffrey testified as an adverse witness. Jeffrey is employed as a service manager at Ron's Tire Service. In the first three months of 1999, Jeffrey earned $8,834. He also earned extra money fixing cars on his own time. In November 1998, he applied for a position with the City of Quincy (City). He had not been hired at the time of trial because the City's garage was not completed. If offered the position, he planned on accepting it. The position pays less than his current salary. In May 1999, he purchased a 1996 pickup truck for better fuel mileage. He was not allowed to testify about custody or visitation because he was not questioned about visitation by Diane's counsel.

In August 1999, the trial court entered a judgment of dissolution of marriage. The trial court awarded custody of the three children to Diane, with Jeffrey's visitation subject to enumerated conditions, i.e., visitation could not occur at Jeffrey's residence to prevent serious endangerment to the physical and emotional health of the children. The court ordered Jeffrey to pay $300 child support and $225 maintenance every two weeks until August 2001. The court awarded Diane the marital residence, valued at $46,000, with approximately $10,000 equity; personal property valued at $3,200; and a 1975 vehicle valued at $500. The court awarded Jeffrey a boat, motor, and boat trailer valued at $2,825; and the pickup truck having equity of $300; and it ordered him to pay marital debt of $7,305 and Diane's attorney fees of $2,100.

In September 1999, Jeffrey hired new counsel and, in November 1999, filed a motion to reconsider. The trial court denied the motion to ...


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