Marriage of Milovich, In re
| Decision Date | 31 March 1982 |
| Docket Number | No. 81-1069,81-1069 |
| Citation | 434 N.E.2d 811,105 Ill.App.3d 596,61 Ill.Dec. 456 |
| Parties | , 61 Ill.Dec. 456 In re the MARRIAGE OF Peter MILOVICH, Petitioner-Appellee, and Mildred R. Milovich, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Joseph H. and Norman Becker and Selwyn Blum, Chicago (Gary E. Dienstag, Chicago, of counsel), for petitioner-appellee.
This appeal is taken from the trial court's judgment which dissolved the parties' marriage, awarded custody of the two minor children to petitioner (husband), apportioned the marital property, and determined the support, maintenance and attorneys' fees. Respondent raises several issues but her primary concern appears to be the custody award. In addition to alleging error with respect to custody, respondent contends that (1) the judge was biased against her and should have recused himself; (2) the court erred in refusing to allow her to substitute counsel or add four new attorneys to represent her during the trial; (3) the court awarded a disproportionate share of marital property to petitioner; and (4) the court's assessment of attorneys' fees against her was erroneous. Respondent further challenges the dissolution judgment as to grounds and argues that the court erred in barring her from receiving maintenance. Inasmuch as respondent waived the grounds issue and has since remarried, the question of grounds and maintenance is moot and we shall not consider it further.
Some of the facts in this case are bitterly disputed and argumentatively presented in appellant's brief. Indeed, petitioner-appellee filed a motion to strike portions of the brief for containing scurrilous material. We emphasize that we disregard irrelevant and inflammatory material in reaching our determination of the issues presented. Nevertheless, some of the comments and argument in appellant's brief are inaccurate, highly improper and far exceed the bounds of zealous advocacy. We express our disapproval to remind counsel that the first purpose of the appellate brief is to inform the court of the facts, objectively, and then to persuade the court of a particular application of the law to the facts. Our impartial review of the pending controversy, which encompasses almost 1500 pages of transcript, is not aided by the persistent On May 14, 1979, after approximately 12 years of marriage, petitioner filed a dissolution action, alleging that his wife was guilty of adultery and requesting various forms of relief. Respondent answered and counter-petitioned, denying the adultery allegations and alleging that petitioner was guilty of mental cruelty. On June 8, 1979 the court entered a temporary restraining order against both parties to prevent them from removing the children from the marital home and to prevent the dissipation or transfer of the parties' joint assets. Pursuant to an agreed order, the court directed the Department of Supportive Services to investigate and report on the home environment.
[61 Ill.Dec. 460] inclusion of misleading statements. After sifting through the voluminous record, therefore, we summarize only those facts which are pertinent to the issues and are necessary for an understanding of this case.
On April 21, 1980, trial began with the evidence regarding petitioner's grounds for dissolution. After petitioner rested the court ruled that he had established a prima facie case of adultery and that respondent could proceed with her defense and counter petition. The court then adjourned. The hearing recommenced on May 15, 1980. At that time respondent's counsel informed the court that respondent would not interpose a defense to grounds because she was eager to proceed to the custody and property matters. 1
On May 16, 1980 the child custody hearing began. The court heard the testimony of 15 witnesses in 6 sessions over a five-month period. Petitioner's first witness was Dr. Dean Dauw, a clinical psychologist and published author with 15 years of experience in marriage counseling. He testified that he consulted with the parties 10 times between March 13 and May 8, 1976. Mrs. Milovich had told him of her wish to "better relate" to her daughter, Nicole, and her desire to have a "more effective career" than being a mother or a housewife. The doctor conducted psychological tests on the parties and concluded that respondent had certain needs which led her to be impatient with her daughter. The doctor prescribed a course of behavior for her which involved certain goals and a system of self-reward and punishment.
George Lebsock, petitioner's supervisor at the Chicago Housing Authority, next testified. He had known Peter Milovich for 20 years, at work as well as socially. He testified that on two occasions he had seen Peter display a concerned, responsive attitude toward the two Milovich children and that they also responded well to their father.
Dmitor Rakich, president of the congregation of petitioner's church, testified that he had known Peter for 30-35 years, through church activities. He testified that petitioner attended church regularly and brought the children to Sunday School. He thought that Peter exhibited more "warmth" toward them than had Mrs. Milovich. He stated his opinion that Mr. Milovich was the more responsible parent, although he admitted that he had only observed the mother 3-5 years ago for a few minutes during infrequent church social functions.
Mary Ann Anderson, the parties' neighbor for seven years, testified that she saw the parties regularly and had bowled with Mrs. Milovich. She had let the daughter, Nicole, come over to her house on occasional mornings to wait for the school bus when Mrs. Milovich was gone. She further testified that the children always appeared healthy, groomed, and happy. She had observed both parents with the children on different occasions.
Another neighbor and a friend of the parties, Mariangela Castrogiovanni, testified that she had seen both parents interact with their children. She related that Mrs. Milovich had told her that she would not have children if she had her life to live over again. Since the dissolution proceedings The next two witnesses were Mr. Milovich's niece and her 19 year old friend. The friend described a ski trip that Mr. Milovich had taken the children on and stated that he was affectionate toward them. She further testified that she observed Mrs. Milovich kick her husband on March 3, 1980.
[61 Ill.Dec. 461] began, Mrs. Milovich had not socialized with any of the neighbors.
Peter Milovich's niece babysat for the children every other week from 1972-1977. On occasion she saw both parties discipline the children. The father spanked them and the mother sometimes dug her fingernails into their arms. She saw the mother kiss the children on the tops of their heads only. The children were more "physical" with their father, who played with them. In the niece's opinion, he was affectionate toward them but Mrs. Milovich was not.
Petitioner's sister, Sorka Lester, testified that she had enjoyed a good relationship with her brother's wife for several years but that they had not been on friendly terms for the last few years. She had talked to respondent approximately 6 months before the parties' marriage. At that time respondent expressed her feeling that she did not want to have children. Ms. Lester further testified that her brother would always check on the children when the families visited but that her sister-in-law rarely did so. She saw her brother help his children with their homework. On March 3, 1980, she observed respondent kick her brother and slam the door behind him.
Petitioner then called respondent to testify pursuant to section 60 of the Civil Practice Act. (Ill.Rev.Stat.1979, ch. 110, par. 60.) She testified that she was presently living with her husband and children in a nine-room house in Palos Heights. There is a lock on her bedroom door for privacy. She works as a sales representative and until recently she was out of town for periods of several days, which totalled two weeks out of each month. When she was gone, Mr. Milovich took care of the children. She admitted that she had been found in contempt of court for violating the visitation order but stated that she had taken the children out of town on some of "his" weekends because he had not paid the support money and she believed that "one negated the other."
Regarding her conversations with Dr. Dauw, the psychologist, she stated that she had been having difficulties understanding Nicole during that period because she was confined to the house all day without adult company. Her relationship with the neighbors was somewhat distant because she felt they were critical of her. When she went bowling once a week, she took the children with her. She occasionally worked as a substitute teacher and modelled a few times. Respondent further testified that she may have told others that she was unhappy being pregnant but that if she did not want to have children she would not have. Mrs. Milovich further stated that her husband was "all right" as a father and that he enjoyed a good relationship with the children. She testified that she had flexible hours as a sales representative, working five days a week from approximately 8:30-4:30. She would leave Jason at a day care center in the morning and generally pick him up after work. She also stated that she would prefer not to work if she had the choice but that she needed the money.
When the hearing recommenced on October 15, 1980, approximately two months after Mrs. Milovich had testified, the court heard her motion for leave to add additional counsel. Petitioner objected because he had been given no prior notice and because the motion came in the middle of trial. The court denied respondent's motion. Then petitioner's counsel, Mr. Blum,...
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