In re Marriage of O'Brien

• Citation: 912 N.E.2d 729
• Decision Date: 14 July 2009
• Docket Number: No. 2-07-0264.,2-07-0264.
• Parties: In re MARRIAGE OF John O'BRIEN, Petitioner-Appellant, and Lisa O'Brien, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

912 N.E.2d 729

In re MARRIAGE OF John O'BRIEN, Petitioner-Appellant, and Lisa O'Brien, Respondent-Appellee.

No. 2-07-0264.

Appellate Court of Illinois, Second District.

July 14, 2009.

Rehearing Denied August 21, 2009.

Randy K. Johnson, Ariano Hardy Nyuli Johnson Richmond & Goettel, PC, South Elgin, IL, for Appellant.

David R. Del Re, Law Office of David R. Del Re, P.C., Mark J. Vogg, Waukegan, IL, for Appellee.

Justice JORGENSEN delivered the opinion of the court:

On November 1, 2006, the trial court entered judgment dissolving the marriage between petitioner, John O'Brien, and respondent, Lisa O'Brien. On February 6, 2007, the court denied petitioner's posttrial motion. Petitioner appeals, arguing that the trial court erred in awarding respondent maintenance. Moreover, petitioner argues that the trial court erred in denying his motion for a substitution of judge. For the following reasons, we affirm.

I. BACKGROUND

Petitioner and respondent were married on May 24, 1992; they have two children, born in 1992 and 1999.

In November 2003, petitioner was charged with domestic battery. At that time, Judge Joseph Waldeck presided over the Lake County domestic violence courtroom. Accordingly, Judge Waldeck presided over a hearing concerning an evidentiary issue in petitioner's battery case, heard testimony from petitioner and respondent, and ultimately ruled to admit evidence presented by respondent. The battery case was subsequently tried before a different judge, and petitioner was found not guilty.

On November 12, 2003, petitioner petitioned for dissolution of the marriage. Orders regarding financial, custody, and visitation arrangements followed, including orders that petitioner pay respondent temporary maintenance and child support during the proceedings. Petitioner subsequently filed several motions concerning visitation. Respondent filed motions regarding child support and day care expenses.

In February 2005, the dissolution case was reassigned to Judge Waldeck, who no longer sat in the domestic violence courtroom. In an initial appearance before Judge Waldeck in March 2005, the judge noted that the parties had been previously before him in the domestic violence courtroom for an order of protection and that there had been a trial before another judge. Petitioner's counsel stated, "We have no objection. I don't believe there's anything in there that would require you to recuse yourself." Respondent's counsel also had no objection.

On November 18, 2005, an emergency order of protection was entered against petitioner. Respondent's motion for a plenary order of protection was later denied.

On January 3, 2006, petitioner moved for a substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(3) (West 2004)). Petitioner alleged that Judge Waldeck was prejudiced against him and was biased in respondent's favor. Specifically, petitioner alleged that Judge Waldeck was biased in respondent's favor because he had presided over criminal proceedings brought by her, he knew respondent because he was a member of the health club where she worked, and he had engaged in friendly, familiar interactions with respondent both inside and outside the courtroom environment. Petitioner also alleged that Judge Waldeck was biased against his attorney.

A hearing on the motion was held before Judge Christopher C. Starck. Petitioner called respondent as an adverse witness. Respondent testified that, in the summer of 2005, she worked approximately two hours per week for the Lake Forest Health and Fitness Institute. Respondent visited the Institute to pick up work to bring home with her. On two occasions that summer, respondent saw Judge Waldeck in the Institute's parking lot. Both times, she said "hi, Judge Waldeck" and he responded "hi" or "hello." No further conversation ensued. Respondent did not believe that Judge Waldeck knew who she was.

Petitioner testified that he had appeared before Judge Waldeck "up to 10 times" on battery charges following a November 2003 argument with respondent. The criminal trial was presided over by another judge, and petitioner was acquitted of the charges; however, Judge Waldeck had ruled on some evidentiary issues in that case. According to petitioner, in June 2005, he and respondent had a telephone conversation in which they discussed Judge Waldeck's rulings in respondent's favor. Petitioner testified that respondent had "sort of giggled" and said that "[my attorney] and I are taking care of the judge." Petitioner conceded that he did not include this allegation in his motion for substitution of judge, but testified that he discussed this conversation with his attorney, who responded that, in chambers, Judge Waldeck had told counsel for both parties that respondent had approached him "on several occasions at the health club." Finally, petitioner testified that, in December 2005, in Judge Waldeck's courtroom, he and respondent were in the public gallery when he saw respondent tilt her head "in a very cutesy way" and give a "cutesy sort of wave." When petitioner looked in the direction of respondent's wave, it appeared that Judge Waldeck was the intended recipient. According to petitioner, he did not see the judge react to the wave, but the judge had a "very passive face and sort of a half smile." Petitioner acknowledged that Judge Waldeck had ruled in his favor on a few occasions.

When petitioner rested, Judge Starck granted respondent's motion for a directed finding and denied the motion for substitution of judge. In doing so, the court noted that the motion was for substitution for cause and that "there really is no proof that Judge Waldeck in any way is prejudiced against [petitioner]." The court addressed petitioner's argument regarding an appearance of impropriety by stating:

"In this case I find nothing to base that on; a wave in the courtroom, if that took place, and the admitted contact just in passing, when Judge Waldeck was going into the health club. And I have no evidence that the employment of [respondent] is any different than what she has told me about, which is maybe an hour a week. And I have no evidence at all as far as how often Judge Waldeck goes to the health club. But I know he was there twice, I know she was there twice, but there is nothing improper about saying hello to someone when you pass them on the street."

The trial on the dissolution petition commenced on February 21, 2006, before Judge Waldeck. Respondent testified that she is 41 years old. She holds a bachelor's degree in business administration, has a "comprehensive business education specializing in corporate finance," and has computer experience. Respondent is a bookkeeper, but not a certified public accountant. In 1990, respondent's gross earnings were $25,224; in 1991, her earnings were $15,684; and, in 1992, she earned $25,690. After the parties' first son was born in 1992, respondent stopped working, to "be an at-home mother." Thus, in 1993, respondent's earnings totaled $2,070.

At the time of trial, respondent worked 30 to 36 hours per week at two part-time jobs. Respondent was employed by Metro Concepts, Ltd., and the Lake Forest Health and Fitness Institute. Respondent began working as a bookkeeper for Metro Concepts in March 2005; she earns $13.50 per hour. Respondent has worked for the Institute for 11 to 12 years; she works there 2 to 6 hours per week and earns approximately $13 per hour. In 2005, respondent's income totaled approximately $20,000. She estimated that her pay for 2006 would be around $20,000 to $24,000. Respondent has not taken any college courses since she stopped working full time.

Respondent's work schedule is flexible and permits her to care for her children and meet their scheduling needs. The children are involved in activities at school, participate extensively in sports, and socialize with their friends. Respondent testified that, although her boss at Metro Concepts has suggested that she could work there full time, she does not work more because doing so "would be a hardship on the children." Respondent has spoken to other people about jobs and has placed her resume on a job-search Web site, but she has not interviewed for full-time employment.

Petitioner testified that he received a degree in journalism and that he has worked for the American Academy of Pediatrics since 2001. At the time of trial, petitioner was the Academy's director of communications and he was on the Academy's executive staff. In 2005, petitioner's gross earnings totaled $127,830. Petitioner testified that his net pay, every two weeks, is about $2,260.

During their marriage, the parties traveled extensively, both abroad (e.g., Taiwan, Philippines, Hong Kong, Ireland) and within the United States. Respondent has not traveled since the petition for dissolution was filed. In addition, the parties sold their marital home. The equity was split equally; each party received $50,000. Respondent purchased a home for $221,500 and has a $1,500 monthly mortgage payment. Petitioner purchased a home for $225,000. He put no money down and carries one mortgage and one line of credit on the house. At the time of trial, respondent drove a Ford minivan with 112,000 miles on it. She owes approximately $6,000 on the minivan and continues to make payments. Petitioner drove a BMW that he purchased sometime after November 2003.

On October 18, 2006, the trial court announced its ruling. The court found that petitioner's biweekly net income was $3,873.26. Among other things, the court ordered petitioner to make biweekly child support payments in the amount of $1,084, and maintenance payments in the amount of $1,000 per month, for 36 months, payable in two $500 biweekly payments.

With respect to maintenance, the court stated that it had considered all of the evidence at trial, as well as the factors listed in section 504 of the Illinois Marriage and...