Rosenblum v. Murphy

• Decision Date: 08 October 1976
• Docket Number: No. 76--178,76--178
• Citation: 356 N.E.2d 888,42 Ill.App.3d 1029,1 Ill.Dec. 606
• Parties: , 1 Ill.Dec. 606 Dawn ROSENBLUM, formerly known as Dawn Murphy, Plaintiff-Appellant, v. Edward R. MURPHY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 888

356 N.E.2d 888

42 Ill.App.3d 1029, 1 Ill.Dec. 606

Dawn ROSENBLUM, formerly known as Dawn Murphy, Plaintiff-Appellant, v. Edward R. MURPHY, Defendant-Appellee.

No. 76--178.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 8, 1976.

[42 Ill.App.3d 1030] [1 Ill.Dec. 607] Arthur Rosenblum, Chicago, for plaintiff-appellant.

McCarthy & Toomey, Chicago, for defendant-appellee.

SULLIVAN, Justice:

This is an appeal from an order which denied a petition for change of venue and modified certain portions of a divorce decree. A cross-appeal has also been filed from that portion of the order refusing to modify other provisions of the decree. Inasmuch as this cause must be reversed because of the improper denial of a timely motion for change of venue, we will only highlight the convoluted proceedings leading up to the order.

The marriage of the parties was terminated June 21, 1966, in an uncontested divorce in which an amended decree awarded custody of three minor children to plaintiff-mother and provided, Inter alia, that the defendant-father pay for the children's parochial or religious school education, dental and orthodonture expenses, and $20 per week support of each child. In July of 1973, plaintiff petitioned to require defendant to pay parochial school expenses for the three children and to reimburse her for certain orthodonture expenses incurred for one of the children. It appears that one child had attended parochial school during the previous year, and his tuition was partially paid by defendant, with the balance having been paid by plaintiff's second husband. The other two children had attended public schools prior to this time.

At the conclusion of the hearings on the petition, an order was entered on July 24, 1973, requiring defendant to pay one-half of the parochial school expenses--that is, $603 per year for each child, the children's stepfather having voluntarily offered to pay the balance of this expense. Defendant was also ordered to pay $700 of the $1,200 orthodonture expense of the one child.

No appeal was taken from the order of July 24, 1973, but defendant, nonetheless, refused to comply. Thereafter, on October 16, 1973, plaintiff petitioned for a rule to show cause, and defendant was held in contempt and sentenced to 30 days in the House of Correction for his non-compliance. The judge ordering commitment had not previously acted on any matter involving the parties.

Two days later, defendant was released when the parties and their attorneys appeared before the same judge and informed him that a settlement had been reached wherein defendant paid a portion About a month later, defendant presented a petition to the same judge which, although entitled a 'motion to modify,' prayed for the vacation of certain provisions of the 1966 decree relating to parochial or religious school expense, orthodonture expense, support and visitation rights. Plaintiff responded by filing a sworn petition for change of venue, alleging bias on the part of the judge, and a motion to strike defendant's petition on the ground that the issues raised were res judicata.

[1 Ill.Dec. 608] of the accrued parochial school expense and agreed to pay $35 per week thereafter. At the closing of the hearing, plaintiff's attorney, who was her second husband, asked the court to admonish defendant to comply with the orders of court. The judge and defendant then had a conversation in chambers and, upon their return to the courtroom, the judge stated that he was going to give defendant relief from the prior order and that he would help defendant obtain the necessary forms to change the existing decree and orders.

Thereafter, before any hearing or other action on defendant's petition, the motion for change of venue was denied on June 14, 1974, the judge stating that he had made prior substantive rulings in the case by ordering a rule to show cause and by ordering defendant's commitment and subsequent release. He granted the motion to strike, however, on the ground that the petition sought to vacate provisions of the decree and that he had no jurisdiction to do so. Defendant then filed another petition, seeking modification rather than vacation of the same provisions of the decree, and plaintiff once more filed a petition for change of venue and a motion to strike.

On June 21, 1974, the same judge again denied plaintiff's motion for change of venue and also denied the motion to strike. An answer was then filed and, after a hearing, an order entered on October 16, 1975, was in part as follows:

'That the decretal provisions providing for the payment by the father for the parochial school education of the children, be set aside and held for naught, and he is not obligated to pay...