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In Re Marriage of D.T. Wade v. S.L. Wade

March 31, 2011

IN RE MARRIAGE OF D.T. WADE,
PETITIONER AND
COUNTERRESPONDENT-APPELLEE,
v.
S.L. WADE,
RESPONDENT
PETITIONER-APPELLANT.



Appeal from the Circuit Court of Cook County and Counter No. 07 D 11714 Honorable Marya T. Nega, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gallagher

PRESIDING JUSTICE GALLAGHER delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

Respondent, S.L. Wade, appeals from orders of the circuit court of Cook County granting petitioner, D.T. Wade's, motion to bifurcate the judgment for dissolution of marriage and entering a bifurcated judgment for the dissolution of the parties' marriage. On appeal, respondent contends that the grant of petitioner's motion to bifurcate must be reversed and the judgment for dissolution of marriage vacated because the bifurcation of the proceedings was not warranted by appropriate circumstances. We affirm.

BACKGROUND

On November 26, 2007, petitioner filed a praecipe for summons in suit for a dissolution of marriage. On May 27, 2008, petitioner filed a petition for dissolution of marriage, in which he asserted that he and respondent were married on May 18, 2002, and that they had two minor children, Z.B.D. and Z.A., as a result of their marriage. He further asserted that irreconcilable differences and difficulties had caused the irretrievable breakdown of their marriage and asked the court to enter an order dissolving the marriage; awarding the parties joint care, custody, and control of their minor children; awarding him any and all of his non-marital property free and clear of any right, title, or interest of respondent; and awarding him his fair, just, and equitable share and proportion of the marital property of the parties.

On August 13, 2008, respondent filed a response to petitioner's petition for dissolution of marriage and a counterpetition for dissolution of marriage, in which she denied petitioner's claim of irreconcilable differences and asserted that she should be awarded the sole legal care, custody, control, and education of their children because that was in their best interests and that petitioner was guilty of desertion and mental cruelty toward her and had committed adultery. Respondent asked the court to dissolve the parties' marriage and to award her sole legal care, custody, control, and education of her children; temporary and permanent maintenance; and all attorney fees incurred in connection with the litigation. Respondent also asked the court to bar petitioner from seeking maintenance and to adjudicate the property rights of the parties.

On May 11, 2010, petitioner filed a motion to bifurcate the judgment for dissolution of marriage, in which he asserted that the parties had satisfied the two-year separation requirement to proceed under the grounds of irreconcilable differences and that appropriate circumstances existed to bifurcate the judgment for dissolution because respondent had frustrated and delayed the proceedings by repeatedly changing counsel and interfering with petitioner's parenting time with their two minor children. Petitioner further asserted that the delays in resolving the issue of dissolution were draining funds out of the marital estate and were detrimental to the interests of his children, that a failure to bifurcate the proceedings would unduly prolong the case, and that respondent would not be prejudiced by bifurcation because her separate residence had been secured, substantial funds had been placed in escrow to address the expenses of the parties and their children, and respondent had control of substantial additional marital funds. On May 14, 2010, Lester Barclay, the representative of the parties' children, filed a response in support of petitioner's motion to bifurcate, in which he asserted that respondent had acted contrary to the children's best interests, that she had prolonged the litigation by changing attorneys numerous times, that the delay was a detriment to the children, and that appropriate circumstances existed to enter a bifurcated judgment for dissolution of marriage.

On May 26, 2010, respondent filed a response to petitioner's motion to bifurcate, in which she denied petitioner's assertions that she had delayed the proceedings by repeatedly changing counsel, that her actions were contrary to the best interests of her children, or that appropriate circumstances existed to justify bifurcation. On June 14, 2010, respondent filed an amended response, affirmative defenses, and memorandum of law in opposition to petitioner's motion to bifurcate, in which she asserted that appropriate circumstances to justify bifurcation did not exist in this case and that bifurcation would be greatly prejudicial to her.

A hearing was held on June 22, 2010, at which time the circuit court granted petitioner's motion to bifurcate. In doing so, the court recognized that although bifurcation was generally disfavored, a court could enter such an order in appropriate circumstances where it determined that bifurcation would be in the parties' best interests. The court stated that appropriate circumstances to justify bifurcation were present in this case because respondent's continual replacement of her attorneys had caused multiple delays and the protracted and contentious nature of the litigation had impacted the parties' children in a detrimental manner. The court further stated that it did not believe bifurcation would have a detrimental impact on the case because a custody trial was set to begin shortly and a trial on the financial aspects of the case was unlikely to begin anytime soon, due in part to the large marital estate at issue. On June 25, 2010, the court heard testimony from petitioner and entered judgment for the dissolution of marriage on the ground of irreconcilable differences, while reserving all other issues to be dealt with in future proceedings.

ANALYSIS

Respondent contends on appeal that the circuit court erred by granting petitioner's motion to bifurcate and entering a bifurcated judgment for the dissolution of marriage because appropriate circumstances did not exist to justify bifurcation in this case. A circuit court shall enter a judgment of dissolution of marriage if one of the approved grounds for dissolution has been proved. 750 ILCS 5/401(a) (West 2008). However, a court may only enter a judgment of dissolution while reserving resolution of the issues of child custody, child support, or maintenance upon agreement of the parties or a motion by either party and a finding that appropriate circumstances exist. 750 ILCS 5/401(b) (West 2008).

In In re Marriage of Cohn, 93 Ill. 2d 190, 199 (1982), our supreme court held that while a circuit court does not have unfettered discretion to bifurcate a dissolution judgment, bifurcation is justified in certain circumstances. The court set forth a nonexhaustive list of appropriate circumstances for entering a bifurcated dissolution judgment, which included "[w]here the court does not have in personam jurisdiction over the respondent; where a party is unable to pay child support or maintenance if so ordered; where the court has set aside an adequate fund for child support pursuant to section 503(d) of the [Illinois Marriage and Dissolution of Marriage] Act; or where the parties' child or children do not reside with either parent." Id. Bifurcation is justified where the circumstances listed in Cohn are present or where the circumstances are of the same caliber as those enumerated in Cohn. In re Marriage of Bogan, 116 Ill. 2d 72, 80 (1986). A reviewing court will not disturb the circuit court's decision to enter a bifurcated judgment of dissolution of marriage absent an abuse of discretion. Copeland v. McLean, 327 Ill. App. 3d 855, 865 (2002).

Respondent asserts that the circuit court abused its discretion by granting bifurcation because none of the appropriate circumstances listed in Cohn were present in this case and the circumstances relied upon by the court to justify bifurcation were not of the same caliber as those identified in Cohn. Before we can decide whether the court abused its ...


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