In re Marriage of Potenza ( 2020 )

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Appellate Court Date: 2022.06.08
09:28:41 -05'00'
In re Marriage of Potenza, 2020 IL App (1st) 192454Appellate Court In re MARRIAGE OF FRANCESCO POTENZA, Petitioner-
Caption Appellee, and VANESSA WEREKO, Respondent-Appellant.
District & No. First District, First Division
Nos. 1-19-2454, 1-19-2597 cons.
Filed December 31, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 16-D-9029; the
Review Hon. David E. Haracz, Judge, presiding.
Judgment Affirmed in part, vacated in part, reversed in part, and remanded in
part.
Counsel on Vanessa Wereko, of Vernon Hills, appellant pro se.
Appeal
Tania M. Dimitrova, of Chicago, for appellee.
Panel PRESIDING JUSTICE WALKER delivered the judgment of the
court, with opinion.
Justices Hyman and Coghlan concurred in the judgment and opinion.
OPINION
¶1 Vanessa Wereko appeals from the final judgment entered on Francesco Potenza’s petition
for divorce from Wereko. Wereko contends that the trial court erred by (1) awarding fees to an
attorney who acted as guardian ad litem for the parties’ children in a different case,
(2) bifurcating proceedings, (3) denying her motion for substitution of judge, (4) transferring
custody of the children, (5) barring Wereko from testifying about financial matters as a
sanction for discovery violations, (6) dismissing many of Wereko’s motions without a hearing,
and (7) allocating marital assets unfairly. We reverse the transfer of custody because Potenza
did not follow statutory procedures for transfer of custody. We vacate the order awarding fees
to the guardian ad litem who did not work on this case. In all other respects, we affirm the trial
court’s judgment.
¶2 I. BACKGROUND
¶3 Wereko married Potenza in 2006. They had two sons: G.P., born in 2008, and J.P., born in
2010. A Swiss court entered a judgment of legal separation and an order for support in 2014.
After Wereko and Potenza both moved to the Chicago area, Wereko filed a petition for divorce
in Lake County, and Potenza filed a counterpetition for divorce. The Lake County court entered
an order allocating parental responsibilities in 2016. The parties dismissed their Lake County
petitions. Potenza filed a petition for divorce in Cook County in September 2016, and Wereko
filed a counterpetition in Cook County in 2017. The Cook County court appointed Russell Reid
as guardian ad litem for G.P. and J.P.
¶4 A. Lake County Guardian Ad Litem Fees
¶5 In May 2017, Stewart Auslander filed, in the Cook County proceedings, a petition for fees
he claimed as the guardian ad litem who represented G.P. and J.P. in proceedings on the Lake
County divorce petitions. Both Wereko and Potenza moved to dismiss the petition on grounds
that Auslander lacked standing because he did not act as guardian ad litem in the Cook County
case. The circuit court denied the motions to dismiss and, on November 2, 2017, entered an
order awarding Auslander the fees he sought.
¶6 B. Bifurcation
¶7 On May 21, 2018, the trial court heard Potenza’s motion for leave to take the children on
vacation. During the proceedings, Potenza’s attorney asked the court, “[D]id you want to get
into the financials tomorrow or did you want just to do the simple prove-up grounds and get
these parties divorced? My client would definitely like to be divorced and, obviously, bifurcate
the proceedings.”
¶8 The following day, Potenza’s attorney elicited his consent to bifurcation. Wereko’s
attorney asked her whether she understood that if the court bifurcated proceedings, the court
would reserve ruling on financial issues and enter a judgment dissolving the marriage. Wereko
answered that she understood and that she had no objection to so proceeding. The circuit court
found that the parties agreed to bifurcation. It entered an order dated June 21, 2018, dissolving
the marriage and reserving ruling on all undecided issues, including all financial issues.
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¶9 C. Substitution of Judge
¶ 10 In November 2018, Wereko filed a motion for substitution of judge, alleging that Judge
David Haracz showed prejudice against Wereko. The circuit court assigned the motion to
Judge John Thomas Carr, who held an evidentiary hearing on the petition on November 16,
2018. Wereko appeared pro se at the hearing. The court heard her testimony about the events
that led her to believe Judge Haracz harbored a bias against her.
¶ 11 Wereko testified:
“The application of sexist and ultimately racist character slurs in today’s society
against somebody like myself has unfortunately become commonplace, where
prominent leaders use their public platform to denigrate others as less than and ascribe
all types of derogatory stereotypes based on gender, race, national origin, or other
without recognizing the individual and the experiences that make them who they are.”
¶ 12 Wereko never testified to any specific slur Judge Haracz used. She complained that Judge
Haracz made several ex parte rulings, but she did not explain the rulings or how the context
showed bias. She testified, “On July 21st, 2018, Judge Haracz threatened to throw me into jail
in open court.” Wereko admitted that Judge Haracz made the threat in response to Wereko’s
threat to disobey the court’s order to produce the passports for her children so that the children
could go on a vacation out of the country with Potenza. Wereko complained that Judge Haracz
treated her “as a glorified babysitter or a disillusioned babysitter, an imposter instead of a
mother,” without specifying what acts of the judge debased her so. Also, Wereko complained
that Judge Haracz granted the motion of one of her attorneys to withdraw shortly before the
May 2018 hearing and the motion of successor counsel to withdraw in August 2018. Wereko
complained of the bifurcation and the judge’s decision to reduce the time set aside for trial
from three days to two. She testified that Judge Haracz suspended the trial and ordered the
parties to mediation as a tactic to force her to accept Potenza’s settlement proposal. Wereko
also testified that Judge Haracz refused to rule on several of her motions.
¶ 13 In her verified motion, Wereko averred that Judge Haracz said, “If you violated the Lake
County judgment, then I’m going to hold you in contempt. Understand that, because I have not
appreciated your actions in this case thus far in front of me.” Also, when she was in the
courtroom while Judge Haracz heard a different case, Judge Haracz said, “[W]ho do you think
you are?” and told security to escort her from the courtroom.
¶ 14 Potenza’s counsel refuted several of the specific assertions of misconduct listed in the
motion for substitution of judge. Reid, the guardian ad litem, testified that he never heard Judge
Haracz make any sexist, racist, or otherwise inappropriate remarks. Judge Carr said:
“With almost no exception, if I go down every paragraph that has to do with Judge
Haracz, we’re talking about something you say he made a wrong decision. Wrong isn’t
something that I determine relative to a motion for substitution. Wrong goes to the
appellate court. I deal with prejudice. I have not heard anything that I think rises to the
level of prejudice that would require me to substitute Judge Haracz for another judge.
So the bottom line is, your motion is denied.”
¶ 15 Judge Carr entered an order dated November 16, 2018, denying the motion for substitution
of judge.
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¶ 16 D. Dismissal of Motions
¶ 17 On July 15, 2019, after the case returned to him, Judge Haracz resolved several of Wereko’s
pending motions by entering an order that said:
“1. Ms. Wereko’s Emergency Motion to Vacate the July 1, 2019 Contempt Order
and to Expunge Respondent’s Record Instanter is denied;
2. Ms. Wereko’s Motion to Vacate and/or Reconsider the Court Order Entered May
22, 2019 on Parenting Time and Minor Children’s Passports is denied;
3. Ms. Wereko’s Motion to Vacate and/or Reconsider the Ex Parte Court Order
Entered June 7, 2019 is denied;
4. Ms. Wereko’s Motion to Deny Petition[ ] to Modify APR [the allocation of
parental responsibilities] Filed on October 29, 2018 Pursuant to Local Court Rule 2.3
and for Sanctions is denied;
***
8. Ms. Wereko’s Petition[ ] for Rule to Show Cause and Finding for Indirect Civil
Contempt for Violation of the June 22, 2017, August 2, 2017 and August 30, 2017
Orders filed 10/13/17 is stricken as moot;
***
13. Ms. Wereko’s Three Count Motion for Sanctions filed 10/10/18 is denied;
***
15. Ms. Wereko’s Petition[ ] for Rule to Show Cause filed 2/5/19 is denied. The
Court finds that Petitioner was not willful and contumacious in his failure to
immediately comply with the turnover order;
16. Ms. Wereko’s Motion to Conform Court Order to Proofs filed 7/9/18 is denied;
17. Ms. Wereko’s Motion for Parenting Time for Unusual Family Events filed
7/23/18 is denied;
18. Ms. Wereko’s Emergency Motion for a Preliminary Injunction to Enforce the
APR by Enjoining Petitioner from Having Shanine Cruz Present During Parenting
Time filed 8/24/18 is denied;
19. Ms. Wereko’s Motion to Modify August 29, 2018 Order Referral to Mediate
Financial Issues is stricken as [m]oot.”
¶ 18 The court set nine of Wereko’s other pending motions for hearing. Wereko filed a notice
of appeal from the order of July 15, 2019, and the appellate court docketed the appeal as case
No. 1-19-1466.
¶ 19 E. Transfer of Custody
¶ 20 On August 1, 2019, Potenza filed a petition for an order of protection, alleging that Wereko
had prevented him from seeing his children. The trial court entered an order ex parte that day,
transferring custody of the children to Potenza. Potenza filed a more detailed petition for an
order of protection on August 13, 2019, alleging that Wereko had moved and refused to
disclose her new address. The court extended the order of protection and held a hearing on the
petition on August 29, 2019. Potenza testified about several specific instances in which Wereko
blocked his scheduled visits with the children.
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¶ 21 On September 9, 2019, the trial court further extended the order of protection and set it to
remain in effect until vacated by court order. The court placed the children in Potenza’s custody
and allowed Wereko only “[w]eekly visitation as supervised and scheduled by the Safe Travels
supervision agency,” plus “3 additional Face Time or telephonic communications per week
with the minor children.” In a separate order, the court ruled, “Mr. Potenza shall have
temporary custody of the minor children pursuant to the Illinois Domestic Violence Act.” As
grounds for the orders, the court found that Wereko harassed Potenza by “preventing
Petitioner’s parenting time.” Wereko filed a notice of appeal from the orders dated September
9, 2019, and the appellate court docketed the case as No. 1-19-1904. The appellate court
subsequently dismissed the appeals in both docket Nos. 1-19-1466 and 1-19-1904 because
Wereko failed to serve the requisite notice on Potenza’s counsel.
¶ 22 Based on the transfer of custody, the court entered an order dated September 27, 2019,
relieving Potenza from the duty to pay child support.
¶ 23 F. Discovery Rulings
¶ 24 At a hearing on November 7, 2019, Wereko challenged the court’s discovery rulings.
Wereko, pro se, said,
“the Court said I had to supply my employer’s name. There is no rule/no law that I
can find or was stated in the petition that requires that ***.
***
I supplied my employer information, your Honor. I will not supply my employer’s
name at this point in time because of harassment.”
¶ 25 The court offered to enter an order precluding the use of the information for harassment,
but Wereko still refused to identify her employer. The court had also ordered Wereko to
produce the credit report she presented to her landlord when she applied for a new apartment.
The transcript of the hearing includes the following exchange:
“MS. WEREKO: I’m having a problem with leads to relevant information with
regard to my credit report. Why [is Potenza’s attorney] entitled to that, your Honor?
THE COURT: It may lead to other information that may be relevant.
MS. WEREKO: No. I don’t agree with that.”
¶ 26 The court ordered Wereko to give Potenza’s attorney the exhibits Wereko intended to use
at trial. This discussion followed:
“MS. WEREKO: Why would I do that?
THE COURT: I’m ordering you to. This is not trial by ambush ***.
***
THE COURT: Trial books 1 through 60 that you have, just give them to her.
MS. WEREKO: Absolutely in light of the fact you are planning to strike my
financial motions, I will not be supplying any exhibits, and I will exclude myself from
the case. ***
*** I cannot reasonably proceed in this matter with the level of *** judicial abuse
of discretion that has been going on for the past four years.
You are entitled, your Honor, to rule as you wish. I will not be here. *** I will not
participate.”
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¶ 27 The court entered an order dated November 8, 2019, requiring Wereko to present her trial
exhibits to Potenza’s attorney.
¶ 28 G. Trial on Financial Issues
¶ 29 On December 3, 2019, the trial court heard Potenza’s motion to hold Wereko in contempt
for refusing to identify her employer. The court barred Wereko from testifying in the trial on
financial issues as a sanction for her violation of discovery orders. Wereko demanded a
continuance, asking for time to find counsel. The record shows the following discussion:
“THE COURT: If you leave, then I would have to default you on the Motions ***
that he’s filed.
MS. WEREKO: I am here as required, your Honor. If you’re going to do something,
please do not use me as an excuse. ***
***
THE COURT: So you’re going to leave for today?
***
MS. WEREKO: Your Honor, I can be here, but I am not participating.”
¶ 30 Later in the same hearing, the following took place:
“MS. WEREKO: May I excuse myself, your Honor?
THE COURT: Are you leaving the courtroom?
MS. WEREKO: I am asking if I can excuse myself.
THE COURT: Sure. Are you going to sit down and stay or are you just going to
leave?
MS. WEREKO: No, I’m leaving the courtroom.
THE COURT: Okay. But understand I am going to proceed on the record—on the
record when he presents his Motion.
MS. WEREKO: Your Honor, this is his case, so, as you said, he’s a Petitioner, so
you’re free to, I guess, rule as your consci[ence] dictates.”
¶ 31 After she left, the court said:
“[F]or the record, [Wereko is] no longer in the courtroom. So I am going to strike
all of her financial Pleadings. Some of those were seeking child expenses for Mr.
Potenza not paying for his portion of various extracurricular or medical expenses.
So I am going to *** deny those with prejudice because they were set for trial
today.”
¶ 32 Concerning the financial issues set for trial, Potenza’s counsel told the court that after seven
years of separation, the parties had no shared property other than Wereko’s car. Potenza agreed
to sign away his interest in the car. The court entered an order dated December 3, 2019,
allocating to each party all property in their possession and all accounts and debts in their name.
¶ 33 Wereko appealed. She listed in her notice of appeal the orders dated November 2, 2017;
June 21, 2018; November 16, 2018; July 15, 2019; September 27, 2019; November 8, 2019;
and December 3, 2019. We will address the orders chronologically.
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¶ 34 II. ANALYSIS
¶ 35 A. Lake County Guardian Ad Litem Fees
¶ 36 Wereko argues that the trial court lacked jurisdiction to enter its order granting Auslander’s
petition for fees. Potenza does not address the issue in his brief on appeal. Auslander filed no
brief on appeal. We address the issue solely based on Wereko’s argument. Brzowski v.
Brzowski, 2014 IL App (3d) 130404, ¶¶ 15-16.
¶ 37 In the trial court, Auslander invoked section 506 of the Illinois Marriage and Dissolution
of Marriage Act (Marriage Act) (750 ILCS 5/506 (West 2016)) as authority establishing the
court’s jurisdiction. Section 506 provides:
“The court shall enter an order as appropriate for costs, fees, and disbursements ***
when the *** guardian ad litem *** is appointed. Any person appointed under this
Section shall file *** a detailed invoice for services rendered with a copy being sent to
each party. The court shall review the invoice submitted and approve the fees, if they
are reasonable and necessary.” 750 ILCS 5/506(b) (West 2016).
¶ 38 Resolution of the jurisdictional argument requires interpretation of the Marriage Act, so
we review the trial court’s ruling de novo. Macknin v. Macknin, 404 Ill. App. 3d 520, 530-31
(2010).
¶ 39 We find that the reasoning of In re Marriage of Birt, 159 Ill. App. 3d 281 (1987), applies
here. In Birt, Paul Didzerekis represented Sarah Birt in proceedings for her divorce from
Maurice Birt. After Didzerekis withdrew from the case, the parties agreed to dismiss their
cross-petitions for divorce, and one filed a new divorce proceeding. In the new divorce
proceeding, Didzerekis filed a petition for fees. Maurice moved to dismiss the petition, arguing
that the court in the new proceeding lacked jurisdiction over Didzerekis’s petition. The trial
court granted the motion to dismiss. The appellate court held:
“[A] trial court lacks jurisdiction to award attorney fees once the action has been
dismissed. ***.
The attorney represented the wife in the first dissolution proceeding until November
11, 1983, when she retained other counsel. That proceeding continued on until
December 20, 1984, when it was dismissed, and the present proceeding was apparently
commenced the next day. The attorney’s petition for fees was ultimately filed in this
case, to which he was a stranger ***.
*** [T]he circuit court here lacked jurisdiction to consider the petition for attorney
fees incurred in the dismissed proceeding ***.” Birt, 159 Ill. App. 3d at 284-85.
¶ 40 Auslander here, like Didzerekis in Birt, is a stranger to the proceedings on the new petition
for divorce. We agree with Auslander that he has a recognizable interest in the marital estate.
But to assert his right to payment for his work in the Lake County case, he needed to file a
petition in the Lake County proceeding or he needed to petition to intervene in the Cook County
case. See In re Marriage of Hartian, 172 Ill. App. 3d 440, 450 (1988). The trial court here
lacked jurisdiction to consider Auslander’s petition for fees because Auslander never filed a
petition to intervene. See MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 14. We vacate
the order dated November 2, 2017, awarding to Auslander fees for his work on the Lake County
case.
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¶ 41 B. Bifurcation
¶ 42 Wereko contends that the trial court erred by bifurcating proceedings on its own motion.
We review a decision to bifurcate proceedings for abuse of discretion. See In re Marriage of
Cohn, 93 Ill. 2d 190, 201 (1982).
¶ 43 The record shows that Potenza’s oral motion initiated the discussion of bifurcation, and
Wereko explicitly agreed on the record to the bifurcation. The parties’ agreement justifies the
court’s decision to bifurcate proceedings. See 750 ILCS 5/401(b)(i) (West 2018); In re
Marriage of Mathis, 2012 IL 113496, ¶ 32.
¶ 44 C. Substitution of Judge
¶ 45 Wereko argues that the trial court erred when it denied her motion for substitution of judge.
“The trial court’s decision on a petition for substitution for cause will not be disturbed on
appeal unless it is against the manifest weight of the evidence.” In re Marriage of Peradotti,
2018 IL App (2d) 180247, ¶ 16. Wereko, in her testimony in court, did not recount the exact
words Judge Haracz used that showed his prejudice. Her written motion specified two remarks:
(1) “If you violated the Lake County judgment, then I’m going to hold you in contempt.
Understand that, because I have not appreciated your actions in this case thus far in front of
me”; and (2) “who do you think you are?” Wereko complained mostly of Judge Haracz’s
rulings and failures to rule on her motions.
¶ 46 Liteky v. United States, 510 U.S. 540, 555 (1994), established the applicable principles:
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. [Citation.] In and of themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance upon an extrajudicial
source; and can only in the rarest circumstances evidence the degree of favoritism or
antagonism required *** when no extrajudicial source is involved. *** [O]pinions
formed by the judge on the basis of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings, do not constitute a basis for a bias
or partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible. Thus, judicial remarks during the course of a
trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They may do so if they
reveal an opinion that derives from an extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism as to make fair judgment
impossible.” (Emphases omitted.)
¶ 47 Judge Carr found that Judge Haracz’s conduct did not exceed the “expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as federal judges, sometimes
display.” Liteky, 510 U.S. at 555-56. We cannot say that Judge Carr’s finding of no grounds
for substitution of judge is against the manifest weight of the evidence. See In re Marriage of
Carrillo, 372 Ill. App. 3d 803, 813-14 (2007)
¶ 48 In her brief on appeal, Wereko argues primarily that Judge Carr should not have heard the
motion for substitution of judge because Judge Carr’s “conduct demonstrated a personal bias
that was also informed on belief by his known social relationship and ex parte
communication(s)” with Judge Haracz. No evidence in the record supports Wereko’s assertion
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that Judge Carr had such a relationship or engaged in improper communications with Judge
Haracz. The denial of the motion for substitution of judge does not warrant reversal here.
¶ 49 D. Dismissal of Motions
¶ 50 Wereko argues that the trial court erred when it dismissed several of her motions without
a hearing, by the order dated July 15, 2019. Her brief on appeal includes only the titles of the
motions; she does not explain the basis for the motions, and she does not argue the legal merit
of any of the motions. Because Wereko has not met her burden of showing prejudicial error in
any of the rulings, she has not shown that we should reverse the judgment because of the July
15, 2019, order. See The Habitat Co. v. McClure, 301 Ill. App. 3d 425, 443 (1998) (appellant
has the burden of showing prejudicial error.)
¶ 51 E. Transfer of Custody
¶ 52 Next, Wereko challenges the orders of protection by which the court transferred temporary
custody of the children to Potenza. Potenza contends that we lack jurisdiction to review the
order because Wereko filed a notice of appeal challenging the order of protection dated
September 9, 2019. This court dismissed her appeal because she failed to serve the notice of
appeal on Potenza’s attorney. That dismissal was not based on the merits, and it does not affect
our jurisdiction to hear all issues raised in the current appeal.
¶ 53 Wereko contends that the trial court transferred custody of the children without considering
the interests of the children. We review the decision to transfer custody for abuse of discretion.
See In re Custody of Sussenbach, 108 Ill. 2d 489, 499 (1985).
¶ 54 The trial court transferred custody of the children pursuant to the Illinois Domestic
Violence Act (Domestic Violence Act) (750 ILCS 60/101 et seq. (West 2018)), based on its
finding that Wereko harassed Potenza and the children. The Domestic Violence Act defines
harassment as “knowing conduct which is not necessary to accomplish a purpose that is
reasonable under the circumstances; would cause a reasonable person emotional distress; and
does cause emotional distress to the petitioner.” 750 ILCS 60/103(7) (West 2018). The
Domestic Violence Act establishes a presumption that “improperly concealing a minor child
from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from
the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a
minor child from petitioner, or making a single such threat following an actual or attempted
improper removal or concealment,” causes emotional distress. 750 ILCS 60/103(7)(v) (West
2018).
¶ 55 Potenza testified that Wereko prevented him from seeing his children on several scheduled
visits and that she had moved and left no forwarding address, leaving him with no means of
contacting his sons. The evidence supports the trial court’s finding that Wereko harassed
Potenza within the meaning of the Domestic Violence Act.
¶ 56 The primary purpose of the Domestic Violence Act “is to aid victims of domestic violence
and to prevent further violence. [Citations.] Obtaining an order of protection is not the proper
procedure for resolving child custody or visitation issues. Those issues should be resolved
under the Illinois Marriage and Dissolution of Marriage Act [citation].” Radke ex rel. Radke v.
Radke, 349 Ill. App. 3d 264, 268-69 (2004). Entry of the order of protection transferred custody
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of the children without a thorough consideration of all the factors required under the Marriage
Act. See 750 ILCS 5/603.10(b) (West 2018).
¶ 57 The best interest of the children is paramount, and though divorcing parents often do not
realize it, the children’s best interest is served when there is a close and healthy relationship
with both parents. We cannot determine from the evidence in the record whether the interests
of the children justify the trial court’s severe restriction of Wereko’s parental responsibilities.
See Radke, 349 Ill. App. 3d 264 (misuse of Domestic Violence Act will not always require
reversal of the order changing custody of children). Following Radke, we reverse the order of
September 9, 2019, in part. We note the potential difficulties with uprooting the children once
again. Therefore, we uphold the part of the trial court’s order making the father the temporary
custodial parent, but we order the trial court to expeditiously conduct a hearing pursuant to the
Marriage Act to determine the children’s best interest. Because the record appears void of
evidence supporting supervised visitation, we also order the trial court to immediately review
whether the requirement of supervised visitation with the mother should be modified pending
final resolution of the custody issue.
¶ 58 We admonish both parents to cooperate with the trial court in fashioning a visitation
remedy that allows both to have and maintain a significant and wholesome relationship with
the children. We follow the decision in Reddig v. Reddig, 12 Ill. App. 3d 1009, 1011 (1973),
where the appellate court stated, “we deem it to be in the best interests of such children that
the trial court conduct a further hearing regarding their removal from [their mother’s custody].
A change of circumstances has ensued, and further evidence should be adduced as to the
present situation of the children as to housing, education, financial well-being, health, moral
atmosphere and as to the preference of the children.” We remand for further custody
proceedings pursuant to the Marriage Act in accord with this order.
¶ 59 F. Discovery Rulings
¶ 60 On November 8, 2019, the trial court entered an order barring Wereko from testifying at
the trial on financial issues and barring her financial exhibits, as a sanction for her refusal to
disclose the name of her employer and her refusal to give Potenza’s attorney a copy of her
financial exhibits. Wereko argues that her actions do not warrant any sanctions.
¶ 61 “Supreme Court Rule 219(c) provides that where a party unreasonably refuses to comply
with discovery rules or orders, the trial court may enter ‘such orders as are just,’ imposing
sanctions on the noncomplying party [citation].” Kubian v. Labinsky, 178 Ill. App. 3d 191, 196
(1988). “[O]nce the trial court imposes a sanction for noncompliance, the sanctioned party has
the burden of establishing that the noncompliance was reasonable or justified by extenuating
circumstances or events.” Kubian, 178 Ill. App. 3d at 197.
¶ 62 During court proceedings, Wereko bluntly defied the court, asserting that she had no
obligation to disclose the name of her employer even after the court explained that Potenza’s
attorney had a right to know the name so he could verify the assertions Wereko made in her
affidavit about her income. The trial court properly considered Wereko’s pattern of
noncompliance with past discovery orders in fashioning a sanction. See Locasto v. City of
Chicago, 2014 IL App (1st) 113576, ¶ 35. The trial court did not abuse its discretion when it
barred Wereko from testifying about financial issues and by barring her financial exhibits.
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¶ 63 G. Trial on Financial Issues
¶ 64 Wereko levels three attacks on the judgment entered on December 3, 2019. First, she
asserts that the court failed to specify which property it classed as marital and which as
nonmarital; second, she contends that the court erred by striking her counterclaim and
dismissing all of her remaining motions; and third, she argues that the court improperly relied
on hearsay evidence about her income when it set the amount of child support. All the rulings
at the December 3 hearing resulted from Wereko’s decision to walk out of the hearing after the
judge explicitly warned her that he would hold the trial and resolve the issues without her input
if she left.
¶ 65 Wereko forfeited her objections to hearsay evidence and the classification of property by
failing to raise the objections at trial. See In re Z.J., 2020 IL App (2d) 190824, ¶ 50. We note
that the transcript of the hearing shows that the court classified all property, other than
Wereko’s car, as nonmarital property and awarded Wereko all of the marital property.
¶ 66 The judgment, including the dismissal of Wereko’s motions, constituted an ex parte
judgment that the court may properly enter when a party has failed to attend trial. City of Joliet
v. Szayna, 2016 IL App (3d) 150092, ¶ 47. We find this case similar to In re Marriage of
Garde, 118 Ill. App. 3d 303 (1983). In Garde, when Cletus Garde failed to appear at a hearing,
the trial court entered an order that relied solely on the evidence Beverly Garde presented.
Garde, 118 Ill. App. 3d at 306. Cletus, in a motion to vacate the order, claimed that a full trial
would not burden Beverly unduly. The appellate court held that Cletus had not presented an
adequate excuse for his absence and that he failed to show the property division unfair. Garde,
118 Ill. App. 3d at 308-09. The appellate court affirmed the trial court’s decision to deny the
motion to vacate the ex parte judgment. Garde, 118 Ill. App. 3d at 310.
¶ 67 Here, Wereko’s lack of counsel does not excuse her conduct, as she had changed her
attorneys frequently over the course of the litigation. Each of Wereko’s attorneys withdrew
due to differences of opinion with her. See In re Marriage of Yakin, 107 Ill. App. 3d 1103(1982). Wereko has not shown that the property was divided unfairly. The trial court did not
abuse its discretion or violate Wereko’s right to due process by entering the ex parte judgment
distributing the property and dismissing all Wereko’s unresolved motions. See Natale v.
Enterprise Publishing Co., 82 Ill. App. 2d 105, 107-08 (1967); Cascade Hotel Co. v. Orleans
Real Estate Co., 137 N.Y.S. 1054, 1055 (App. Div. 1912) (per curiam) (judgment entered
against party who left courtroom at the outset of trial without adequate excuse). We affirm the
order of December 3, 2019.
¶ 68 III. CONCLUSION
¶ 69 The court’s finding of no adequate grounds for substitution of judge is not against the
manifest weight of the evidence. The court did not err when it granted Potenza’s uncontested
motion for bifurcation. Wereko has not shown that the trial court erred by barring her testimony
and exhibits as a sanction for discovery violations. By voluntarily leaving the courtroom during
the trial, Wereko forfeited her objections to hearsay evidence and to the court’s failure to state
in its written order the classification of all property as marital or non-marital. Wereko has not
shown prejudicial error in the dismissal of her numerous other motions. We vacate the trial
court’s order awarding fees to the guardian ad litem who worked on a prior case involving the
same parties. We reverse the order of September 9, 2019, in part. We uphold the part of the
trial court’s order making the father the temporary custodial parent, and the trial court shall
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expeditiously conduct a hearing pursuant to Marriage Act concerning the best interest of the
children. We affirm the trial court’s order in all other respects.
¶ 70 Affirmed in part, vacated in part, reversed in part, and remanded in part.
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