Yakin v. Yakin, Nos. 81-0823

CourtIllinois Appellate Court
Writing for the CourtWILSON
Citation107 Ill.App.3d 1103,62 Ill.Dec. 547,436 N.E.2d 573
Parties, 62 Ill.Dec. 547 In re the Marriage of Mary Eileen YAKIN, Petitioner-Appellee, v. Paul M. YAKIN, Respondent-Appellant.
Decision Date07 May 1982
Docket NumberNos. 81-0823,81-1266

Page 573

436 N.E.2d 573
107 Ill.App.3d 1103, 62 Ill.Dec. 547
In re the Marriage of Mary Eileen YAKIN, Petitioner-Appellee,
v.
Paul M. YAKIN, Respondent-Appellant.
Nos. 81-0823, 81-1266.
Appellate Court of Illinois, First District, Fifth Division.
May 7, 1982.
Rehearing Denied June 22, 1982.

Page 575

[107 Ill.App.3d 1104] [62 Ill.Dec. 549] Genaro Lara, Chicago, for respondent-appellant.

Michael W. Kalcheim and Ilene E. Shapiro, Kalcheim & Kalcheim, Ltd., Chicago, for petitioner-appellee.

WILSON, Justice:

Respondent appeals from a judgment of dissolution entered in favor of petitioner. The court found that respondent was guilty of extreme and repeated acts of mental cruelty, extreme and repeated physical cruelty, and constructive desertion. The court further awarded custody of two minor children to the petitioner, awarded the marital residence to the petitioner subject to a lien of $5,000 in favor of respondent and assessed attorneys' fees in favor of petitioner's attorney in the amount of $12,000.

Respondent contends that (1) the judgment of the court granting the divorce was against the manifest weight of the evidence; (2) the court erred in permitting the trial to proceed while respondent was absent; (3) the court erred in awarding custody of the minor children to petitioner and (4) the court erred in awarding attorneys' fees to petitioner's attorney in the amount of $12,000. No issue is raised on appeal concerning the award of the marital residence to petitioner. For the reasons hereinafter stated we affirm the trial court as to the granting of petitioner's petition on grounds of mental cruelty, physical cruelty, and constructive desertion but reduce the court's award of attorney's fees. The relevant facts on the contested grounds of the petition follow.

Petitioner, Mary Eileen Yakin, filed her petition for dissolution of marriage on January 5, 1979. During the following one and one-half years several preliminary motions and petitions were brought on behalf of both parties and discovery was conducted. On April 27, 1979, pursuant to petition of [107 Ill.App.3d 1105] respondent, Paul M. Yakin, an agreed order was entered by the court requiring both parties to submit to a mental examination by a court-appointed psychiatrist and reserving the issue of submitting the children for a mental examination. Ilse Judas, M.D. was suggested by the court because she was a specialist in the field of child psychiatry. She was approved by both parties and during late May and early June, she interviewed each of the parties and the two minor children. She conferred with petitioner on two occasions totalling 1 hour and 55 minutes. She also saw respondent on two separate occasions, totalling 2 hours and 10 minutes. At another session, she observed the whole family interact together and spoke to each of the children individually for approximately 30 minutes each. Upon completing her examination, on June 5 she prepared a written report recommending that petitioner be awarded the permanent custody of the parties' two minor children. This report was submitted to the attorneys for both parties but was not filed with the court. On September 20, 1980 the attorney for respondent deposed Dr. Judas pursuant to order of the court and subpoena. On June 29, 1979, pursuant to petition of respondent for a supportive services investigation, the court entered an agreed order authorizing an investigation by the Department of Supportive Services. Sharon Zingery was the caseworker assigned to conduct the investigation. She visited with each of the parties in their respective homes and observed the parties' interaction with the two minor children. On December 10, 1979 she prepared a written report which was sent to the attorneys for both parties. In that report she recommended that permanent custody of the two minor children be awarded to petitioner.

On December 11, 1979, the first phase of the trial proceeded as a contested trial as to the grounds for dissolution of marriage. After petitioner began to testify in her own behalf, the court conducted conferences with counsel and the parties in chambers. Respondent and his attorney stated at these conferences that respondent was opposed to a divorce and wished to participate in marriage counselling with petitioner. The trial

Page 576

[62 Ill.Dec. 550] then was suspended and, on January 28, 1980, the parties entered into a written stipulation, which was filed on February 1, 1980. The stipulation contained, among other things, the following provisions: (1) the parties would participate in counselling by Melvin N. Seglin, M.D., a court-appointed psychiatrist; (2) Dr. Seglin would render an opinion as to whether the parties' marriage was non-viable and whether their differences were irreconcilable; (3) the parties agreed to be bound by the recommendations of Dr. Seglin as to these issues; (4) in the event that Dr. Seglin found that the marriage was non-viable, or that there existed irreconcilable differences, the parties agreed that the document would [107 Ill.App.3d 1106] serve as a stipulation to prove-up the case as if it were an uncontested default matter, with the grounds being willful and constructive desertion on the part of respondent, without any cause for provocation on the part of the petitioner, and that the permanent custody of the parties' two minor children would be awarded to petitioner; and (5) in the event that Dr. Seglin found the marriage non-viable, or that there existed irreconcilable differences, respondent would not put on a defense as to ground or custody. Both parties testified in open court as to the terms of the written stipulation and as to their voluntariness in entering into it without coercion from any party or the court.

Both parties were seen by Dr. Seglin on a weekly basis in a series of psychiatric interviews from approximately February 11, 1980, through May 1, 1980. Dr. Seglin prepared a written psychiatric summary which was tendered to counsel for both parties and to the court. He stated in the summary:

"It appears that the situation has gone beyond 'the point of no return' and an attempt at reconciliation at this time would be fruitless. I will offer one further recommendation in the event that the divorce is decreed. I see no reason why custody of the children should not be granted to Mrs. Yakin."

After receipt of Dr. Seglin's report, petitioner filed a petition requesting a prove-up date to allow the case to proceed pursuant to the parties' written stipulation. In response thereto respondent filed a petition requesting that the parties' written stipulation be withdrawn, based on public policy and various constitutional arguments. The trial court, on August 13, 1980, entered an order which provided that the stipulation heretofore entered would be rescinded, provided that respondent pay petitioner for the attorneys' fees that were specifically incurred in connection with the stipulation.

The trial on the grounds of dissolution was reset, continued from time to time and eventually recommenced on January 21, 1981.

This opinion will not be unduly extended at this point by cataloguing each of the instances identified by petitioner in support of her petition for dissolution; when appropriate, the operative facts supporting the grounds for dissolution will be detailed. The record supports the conclusions that respondent privately and publicly insulted his wife, was guilty of physical cruelty, physical abuse, psychological harassment toward plaintiff and also humiliated her before family, friends and strangers. Following the testimony of witnesses called on behalf of both parties, the court entered a judgment of dissolution based on respondent's mental cruelty, physical cruelty and constructive desertion. The court's ruling was issued on January 23, 1981. Following the court's ruling a trial date on custody and [107 Ill.App.3d 1107] financial issues was set for February 24, 1981. One week prior to the scheduled trial date on custody and financial issues, respondent filed a motion for substitution of attorneys and Attorney Genaro Lara substituted for respondent's former counsel. After hearing testimony of witnesses, the court found that petitioner was entitled to the permanent care, custody and control of the parties' two minor children. She was awarded the marital residence, subject to a lien in favor of respondent in the amount of $5,000. The judgment of dissolution of marriage was entered on March 13, 1981 and the issue of attorneys' fees was taken up in a separate hearing. Hearing commenced

Page 577

[62 Ill.Dec. 551] on the issue of attorneys' fees on April 29, 1981 and on May 6, 1981 an order was entered assessing attorneys' fees in favor of petitioner's attorneys in the amount of $12,000.

Respondent filed his notice of appeal from the judgment of dissolution of marriage on April 2, 1981 and the notice of appeal was amended on April 15, 1981. On May 20, 1981 respondent filed notice of appeal on the order of attorneys' fees. Case No. 81-823 concerning the judgment for dissolution of marriage and No. 81-1266 on the issue of attorneys' fees were consolidated on July 10, 1981 by order of this court.

OPINION

I.

Respondent-appellant argues that the acts of which petitioner complains did not comprise a course of conduct sufficient to rise to the level of extreme and repeated mental cruelty; that petitioner's proofs failed to establish that these facts resulted in an adverse effect upon her physical or mental health; that petitioner's case lacked the requisite proof demonstrating an absence of provocation on petitioner's part with respect to the acts in question; that petitioner's proofs failed to establish extreme and repeated cruelty; that petitioner's proofs failed to establish constructive desertion and that petitioner failed to prove lack of provocation on her part in regard to extreme and repeated cruelty and constructive desertion. We...

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21 practice notes
  • Marriage of Wade, In re, No. 4-86-0702
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1987
    ...to proving mental cruelty, the complaining party must also plead and prove that such conduct was not provoked. (Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 62 Ill.Dec. 547, 436 N.E.2d 573; Hecht v. Hecht (1977), 49 Ill.App.3d 334, 7 Ill.Dec. 169, 364 N.E.2d 330.) Although the burden of prov......
  • Ciampi v. Ogden Chrysler Plymouth, Inc., No. 2-93-0014
    • United States
    • United States Appellate Court of Illinois
    • May 19, 1994
    ...time spent in court and time spent elsewhere since court time was billed at a higher rate. (See In re Marriage of Yakin (1982), 107 Ill.App.3d 1103, 1120, 62 Ill.Dec. 547, 436 N.E.2d 573.) Accordingly, we affirm the trial court's award of attorney For the foregoing reasons, the judgment of ......
  • Marriage of Pitulla, In re, Nos. 1-88-3129
    • United States
    • United States Appellate Court of Illinois
    • August 8, 1990
    ...provided. Donnelley v. Donnelley (1980), 80 Ill.App.3d 597, 602, 35 Ill.Dec. 919, 400 N.E.2d 56; see also Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 62 Ill.Dec. 547, 436 N.E.2d Petitioner first argues that Rinella's compilation of fees is inadmissible hearsay. Rinella counters that the arg......
  • Marriage of Broday, In re, Nos. 1-91-0429
    • United States
    • United States Appellate Court of Illinois
    • December 22, 1993
    ...had a regular income or salary, a savings account, stocks, securities or other liquid assets, or real estate. Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 1118, 62 Ill.Dec. 547, 436 N.E.2d 573 (attorney fee award upheld on the basis of recipient's inferior ability to pay since her income amo......
  • Request a trial to view additional results
21 cases
  • Marriage of Wade, In re, No. 4-86-0702
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1987
    ...to proving mental cruelty, the complaining party must also plead and prove that such conduct was not provoked. (Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 62 Ill.Dec. 547, 436 N.E.2d 573; Hecht v. Hecht (1977), 49 Ill.App.3d 334, 7 Ill.Dec. 169, 364 N.E.2d 330.) Although the burden of prov......
  • Ciampi v. Ogden Chrysler Plymouth, Inc., No. 2-93-0014
    • United States
    • United States Appellate Court of Illinois
    • May 19, 1994
    ...time spent in court and time spent elsewhere since court time was billed at a higher rate. (See In re Marriage of Yakin (1982), 107 Ill.App.3d 1103, 1120, 62 Ill.Dec. 547, 436 N.E.2d 573.) Accordingly, we affirm the trial court's award of attorney For the foregoing reasons, the judgment of ......
  • Marriage of Pitulla, In re, Nos. 1-88-3129
    • United States
    • United States Appellate Court of Illinois
    • August 8, 1990
    ...provided. Donnelley v. Donnelley (1980), 80 Ill.App.3d 597, 602, 35 Ill.Dec. 919, 400 N.E.2d 56; see also Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 62 Ill.Dec. 547, 436 N.E.2d Petitioner first argues that Rinella's compilation of fees is inadmissible hearsay. Rinella counters that the arg......
  • Marriage of Broday, In re, Nos. 1-91-0429
    • United States
    • United States Appellate Court of Illinois
    • December 22, 1993
    ...had a regular income or salary, a savings account, stocks, securities or other liquid assets, or real estate. Yakin v. Yakin (1982), 107 Ill.App.3d 1103, 1118, 62 Ill.Dec. 547, 436 N.E.2d 573 (attorney fee award upheld on the basis of recipient's inferior ability to pay since her income amo......
  • Request a trial to view additional results

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