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In Re Marriage of

October 3, 2012

IN RE MARRIAGE OF
MAURICE B. H., PETITIONER-APPELLEE,
AND
GATANYA A. A.,
RESPONDENT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 09 D 5030 HONORABLE VERONICA B. MATHEIN, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Steele

JUSTICE STEELE delivered the judgment of the court, with opinion. Presiding Justice Salone and Justice Neville concurred in the judgment and opinion.

OPINION

¶ 1 Respondent, Gatanya A. A., appeals from an order of the circuit court of Cook County granting partial summary judgment and awarding sole custody of their child to petitioner, Maurice B. H. On appeal, Gatanya contends the trial court erred by: (1) relying on subjective facts admitted by her failure to respond to Maurice's request to admit facts; (2) failing to consider the current circumstances of the child; and (3) failing to wait for the child representative to complete her investigation before ruling on the motion. For the following reasons, we reverse and remand the case for further proceedings.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. On March 29, 2006, the circuit court of Champaign County entered a judgment for dissolution of marriage incorporating the parties' settlement agreement. The judgment granted Gatanya sole custody of the parties' only child, M.H., who was born on January 9, 2004.

¶ 4 On May 29, 2009, Maurice filed petitions to enroll a foreign judgment, modify custody, and for specific visitation in the circuit court of Cook County. On October 26, 2009, Maurice filed an amended petition to modify custody. Maurice seeks sole custody of the parties' child. Gatanya ultimately filed an answer to the custody petition on June 24, 2010.

¶ 5 On September 24, 2009, Maurice served Gatanya with custody interrogatories and a notice to produce documents, pursuant to Illinois Supreme Court Rule 214 (eff. Jan. 1, 1996). On November 25, 2009, Maurice served Gatanya with a request to admit facts pursuant to Illinois Supreme Court Rule 216 (eff. May 30, 2008). Maurice's request to admit facts encompassed 350 items. Some of these items were specific, e.g., Gatanya "has allowed the smoking of illegal drugs in the child's bedroom" and has told M.H. that she "cannot play with other children that reside in her current residential building." Other items were more general, e.g., Maurice "is able to provide a more stable, loving home environment in which to raise the child," Gatanya is "unable to provide a stable living environment for the child," "has consistently showed a lack of interest in the child," " is currently experiencing emotional difficulties," has stalked Maurice's fiancee, "has centered her life around impulsively serving her own needs above those of the child," as well as asserting the "neighborhoods and areas in which [Gatanya] has chosen to reside, particularly during the past three years, are commonly known to be dangerous areas."

¶ 6 On or about December 14, 2009, Gatanya responded by filing a motion for a protective order, supervised discovery and interim attorney fees. Gatanya alleged in part that Maurice's request to admit facts sought admissions to facts largely outside her personal knowledge. Gatanya also alleged that the request to admit facts was abusive and designed to increase her attorney fees. On December 15, 2009, the circuit court entered an order staying discovery pending resolution of Gatanya's motion. On July 23, 2010, the parties entered into an agreed order lifting the stay and providing each party 28 days to answer any pending discovery requests.

¶ 7 On May 24, 2010, the circuit court appointed a child representative for M.H.

¶ 8 On November 2, 2010, Maurice filed a motion to deem his request to admit facts admitted. On November 5, 2010, Maurice filed a motion to compel Gatanya to comply with the remaining discovery requests. On December 13, 2010, Gatanya filed her responses to these motions. However, following a hearing later that day, the circuit court granted the motion to compel and the motion to deem the request to admit facts admitted as to all 350 items in the original request.

¶ 9 On March 11, 2011, Maurice filed his motion for summary judgment on the custody petition, relying on the facts deemed admitted by Gatanya. On April 13, 3011, the child representative filed a motion seeking an extension of time to respond to Maurice's motion for summary judgment. The parties do not identify any written response from the child representative in the record. On April 14, 2011, after obtaining new counsel, Gatanya filed an emergency motion to vacate a portion of the December 13, 2010, order regarding the admission of facts or, in the alternative, for leave to file a response to Maurice's original request to admit facts. Maurice responded with a motion to strike and dismiss or, in the alternative, respond to the emergency motion.

¶ 10 On November 7, 2011, Gatanya filed her response in opposition to the motion for summary judgment. On November 22, 2011, following a hearing, the circuit court entered an order denying Gatanya's emergency motion. On February 12, 2012, Gatanya filed an amended response in opposition to the motion for summary judgment.

ΒΆ 11 On March 16, 2012, the circuit court held a hearing on Maurice's motion for summary judgment on his custody petition. Maurice argued that Gatanya's admissions on issues regarding his fitness to have custody of M.H. and Gatanya's failure to provide a stable environment eliminated any genuine issue of material fact for trial. Gatanya argued that Maurice's motion focused exclusively on M.H.'s best interests, but failed to address the issue of whether there had been the substantial change in circumstances required by law to modify custody. The child representative argued that the request to admit facts presented facts as of ...


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