Blazina v. Blazina, 76--36

• Decision Date: 01 October 1976
• Docket Number: No. 76--36,76--36
• Parties: , 1 Ill.Dec. 164 Vincent BLAZINA, Plaintiff-Appellee, v. Roberta BLAZINA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 164

356 N.E.2d 164

42 Ill.App.3d 159, 1 Ill.Dec. 164

Vincent BLAZINA, Plaintiff-Appellee, v. Roberta BLAZINA, Defendant-Appellant.

No. 76--36.

Appellate Court of Illinois, Second District, Second Division.

Oct. 1, 1976.

Jacobson & Brandvik, James A. Brandvik, Chicago, for defendant-appellant.

Civinelli, Bakalis, Keller & Culliton, Stephen J. Culliton, Bloomingdal, for plaintiff-appellee.

DIXON, Justice;

This is a divorce case originally filed on behalf of the husband Vincent Blazina charging that the wife Roberta Blazina was guilty of habitual drunkenness and extreme and repeated acts of mental cruelty. The wife answered and counterclaimed. Immediately prior to the introduction of evidence, the husband was permitted to withdraw his complaint. No answer or other pleading was filed in response to the counter-complaint and the case was tried on the allegations of the counter-complaint alone. The circuit court of Du Page County granted the wife a divorce, awarded custody of the minor child of the parties to the wife but gave liberal visitation privileges to the husband. The court divided certain personal property of the parties, awarded $30.00 per week child support and $30.00 per week alimony and ordered a sale of the marital home jointly owned by the parties. The wife appeals.

The issues presented for review are:

Did the court abuse its discretion in ordering the sale of the jointly owned marital home of the parties where no pleading requested the same? We find that it did and reverse this portion of the judgment.

Did the court err in refusing to admit evidence of the wife's special equities in the marital home and in denying her motion to amend her complaint to allege such special equities? We find that it did and reverse and remand this portion of the judgment with directions to allow her to amend her complaint and for further proceedings.

Did she receive a fair trial when the trial court refused to allow an offer of proof; refused to permit argument on her behalf and denied admissibility of evidence of the consequences of the husband's abnormal behavior? We find no reversible error on this point and affirm.

Did the court act arbitrarily in granting liberal visitation privileges to the husband? We find no error on this issue and affirm this part of the judgment.

Vincent and Roberta Blazina were married on April 6, 1968. In December of 1968, they had their only child, Vincent D. Blazina, Jr. Mrs. Blazina had been married before and had one son, Billy, who lived with the parties during their marriage. Billy was 14 years old at the time of the trial of the case in September, 1975. He was never adopted by Vincent Blazina.

Counter-plaintiff described how her husband had struck her on various occasions. He had given her a black eye and, on one occasion, hit her on the side of the head and broke her eardrum. She also testified that he was drunk every night since they were married.

Before the marriage, the parties had agreed that Mrs. Blazina was to contribute $4,000 of her funds, plus other amounts, for the purchase of a building. The court denied this evidence and also refused to permit the counter-plaintiff to amend her counter-complaint to conform to the proof. The court then denied counsel for counter-plaintiff the opportunity to make an offer of proof as to the particulars of this financial arrangement. The court would not permit argument on this issue.

The parties used the proceeds of the sale of the first building that they had purchased to buy their existing marital home in Addison, Illinois. The court ruled this evidence inadmissible.

Vincent Blazina had left the marital home in January, 1975. Thirty days before the trial of the case (Sept. 26, 1975) he moved back into the home. Since he came back to the house, the relationship between the parties was terrible and Roberta believed that her safety required that he be evicted from the home. The court denied evidence on this issue, and denied counsel for counter-plaintiff the right to make an offer of proof.

When questioned about the relationship between her husband and her first son Billy, Roberta Blazina described how he was very mean to Billy and beat him up, breaking his arm on one occasion. She then described how about two years before the trial, when Billy was twelve years old, her husband became very affectionate toward Billy. He would go into his room with his underclothes on and 'stroke' the child. He would be drunk on these occasions. When Mrs. Blazina had to go to the hospital, her son was sexually molested by her husband. This had been admitted by the husband. No evidence was offered denying these events. When Mrs. Blazina attempted to describe the hospitalization of Billy, which resulted from these events, the court ruled this evidence inadmissible. In addition, Mr. Blazina was drunk every night since the parties were married. The court questioned Mrs. Blazina about the visitation of her husband with their 6 1/2 year old son, Vincent; she testified that there was no trouble with this visitation other than once when the child became ill and threw up.

During the period of the separation of the parties, Mr. Blazina paid his wife $40.00 per week for the support of Vincent, Jr. He also paid the mortgage on the house of $386.00 per month. He paid the utility bills of approximately $70.00 per month. This was done on a salary from Blazina Service Station of $154.00 per week take home pay.

Counsel for Mrs. Blazina argued that Mr. Blazina's visitation under the decree should be under controlled circumstances because of the problems in his background. The court granted week-end and vacation visitation.

The court ordered the marital home of the parties sold. Mrs. Blazina was granted temporary possession of the home and her husband was ordered to continue the mortgage payments, receiving credit on the reduction of principal therefrom. At sale, the proceeds were to be divided equally.

Neither party hereto prayed for a partition or for a sale of the jointly owned marital home. This court's holding in Nugent v. Nugent, 9 Ill.App.3d 702, 292 N.E.2d 917 clearly outlined the circumstances under which a trial court can order a sale of a jointly owned marital home. There is no authority to order such a sale except as provided by statute. (Fowler v. Fowler, 26 Ill.App.3d 313, 315, 325 N.E.2d 98; Persico v. Persico, 409 Ill. 608, 611, 100 N.E.2d 904.) Since the Nugent case was not reported in full we quote extensively:

'We find no basis for the court's order of sale of the jointly held property here. Section 20 of the Divorce Act (Ill.Rev.Stat.1969, ch. 40, par. 21) is inapplicable as it authorizes a sale only to enforce the payment of alimony where it is decreed to be a lien on the property. Nor can the sale be classified as the conveyance of equitable title from one party to another under Section 17 (Ill.Rev.Stat.1969, ch. 40, par. 18) or the conveyance of property as a settlement in lieu of alimony under Section 18 (Ill.Rev.Stat.1969 ch. 40 par. 19). Rather, the ordering of the sale under the circumstances here was in the nature of a partition (Ill.Rev.Stat.1969 ch. 40, par. 17(a)). However, neither party prayed for a partition of the property and each claimed the entire interest in it. The court was therefore without jurisdiction to order the sale of this property. This provision of the decree is reversed.'

The husband contends that because he alleged in his complaint, the joint ownership of the marital residence and prayed that he be awarded his share of said property the matter was before the court. But he was allowed to withdraw his complaint. Ordinarily the withdrawal of a pleading removes it from consideration, and leaves the issues in the same status as though the withdrawn pleading had never been filed. 30 I.L.P. Pleading, § 172; 71 C.J.S. Pleading § 419 d. The withdrawal of a complaint does not preclude the court from holding the cause for adjudication on cross actions set up by defendant. 71 C.J.S. Pleading § 419 d, p. 856; 24 Am.Jur.2d Dismissal, Discontinuance, and Non Suit, sec. 74.

We find no basis for the court's order of sale of the marital residence. This provision of the judgment is reversed. 2

It is imperative that a party claiming special equities plead with specificity allegations of the equities that, if proven would allow the court to order a conveyance or impress a lien on the property in the amount of the equitable ownership. No such relief can be granted by the court where there are no allegations of such special circumstances and equities. Persico v. Persico, 409 Ill. 608, 610, 100 N.E.2d 904; Everett v. Everett, 25 Ill.2d 342, 346, 185 N.E.2d 201; see Newmark, Property Rights in Divorce, 62 I.B.U. 246; 16A I.L.P. Divorce, § 184.

The wife concedes there was a total failure herein to allege facts showing special equities in her complaint but contends that she should have been allowed to amend her complaint while she was testifying.

Provision for the amendment of pleadings is made in Sec. 46 of the Civil Practice Act (Ill.Rev.Stat. chap. 110, § 46) and in the Statute of Amendments and Jeofails (Ill.Rev.Stat. chap. 7, par. 1 et seq.) These provisions are liberally construed and applied to carry out their purpose of permitting liberal amendments to pleadings. (Williams v. Fredenhagen, 350 Ill.App. 26, 111 N.E.2d 578.) But it cannot be emphasized too strongly that the motion to amend is addressed to the sound discretion of the trial judge. (Bell v. Toluca Coal Co., 272 Ill. 576, 112 N.E. 311; Bowman v. County of Lake, 29 Ill.2d 268, 193 N.E.2d 833.) Counsel must keep in mind that

1. He has no absolute right to amend. Bowman p. 281, 193 N.E.2d 833.

2. The amendment may result in costs being assessed against him.

3. The amendment may prompt opposing counsel to seek and obtain, a continuance of the trial on the ground that he is unprepared to proceed. (S.Ct. Rule 231(d)).

Nevertheless the greatest...