## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

In re Marriage of Tom lins , 2013 IL App (3d) 120099

Appellate Court Caption In re MARRI AGE OF MARGARET TOMLINS, Petitioner-Appellee
, and CHRI STOPHER GLENN, Responde nt-Appellant.

District & N o. Third District Docke t No. 3-12-0099

Filed Rehea ring denied J anuar y 14, 2013
Fe bruary 22, 2013

Held ( Note : Thi s syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The tri al court properly enter ed a bifurcated judgme nt of dissoluti on based on the eff

ect the parties’ protrac ted and contentious litigation was having on their children, and petitioner established g rounds of irrec oncilable diff

ere nces that justi fied the dissolution of the marriag e.

Dec ision Under Review Appea l from the Circuit Court of Peoria County
, No. 08-D-645; the Hon. David J. Dubicki and the Hon. Michae l Risi ng er, Judge s, presiding

.

J udg ment Affirmed.Counsel on

Appea l Christopher J . Glenn, of Peoria, pro se

.

Marg are t A. Tomlins, of Peoria, pro se

.

Panel J USTI CE CARTER delivered the judg ment of the c ourt, with opinion.
J ustices McDa de and O ’B rien c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The petitioner, Marg are t T omlins, filed a petition f or dissoluti on of her marria g e to the responde nt, Christopher Glenn. After a hear ing on g rounds for dissoluti on, the circ uit court enter ed a bifurcated j udg ment, which dis s o l v ed the m arriag e and rese rved other i ssues for future resolution. On appeal, Christopher arg ues, inter alia
, that the court err ed when it found that g rounds exis ted to justify the dissoluti on of his marria g e to Marg are t and when it enter ed the bifurc ated judg ment. We affirm.

¶ 2 FACTS ¶ 3 On October 29, 2008, Marg are t filed a petition for di s s o l u t i o n o f h er m ar ri ag e to Christopher. In the petition, Marg are t alleg ed that the parties wer e marrie d on May 10, 2000; that they had two children toge ther, J ohn (Jack), born Dec ember 2, 2000, and Nicholas, born De ce m b er 21, 2003; and that Christopher subjected Marg are t to “extreme and repeat ed

men t al cr uelty without cause or provocation” such that dissoluti on was proper

. After 1 considera ble pretrial litigation, on Dec ember 10, 2010, Marg are t filed a motion for leave to file an amende d petition for dissoluti on, which soug ht to add an alleg ation that the marria g e should be dissolved on the grounds of irrec oncilable differe nces. The circuit court g rante d that motion on March 24, 2011. ¶ 4 On April 14, 2011, the circ uit court held a hearing on whether g rounds exis ted to dissolve the marriag e. Mar g are t was the sole witness at the hearing and testified to the parties’ long h i story of marital problems. She testified that she and Christopher first separ ated in early 2002 when they wer e living in Minnesota. Due to their marital problems, she o b t ai n ed an apartment wher e she stay ed at tim es until summer 2002. She was in individual counseling at the time, and she and Christopher attended appr ox imately five or six marital counse ling sessions toge ther. In summer 2002, she moved ba ck in with Christopher.

Am ong oth er thi ngs, Ma rgare t al so sou ght cus tod y of the par ti es’ two mino r chi ldr en. T he 1 ci rc uit cou rt ’s re sol uti on of the cus tod y is sue was ap p e al ed sep ar at el y by Chri st ophe r and is the sub j ect of a s epa ra te app eal , No. 3

- 12- 0237

.
-2-¶ 5 Marg are t testified that she and Christopher continued to have problems afte r she moved

back in with him. They constantly arg ued over their living conditions and arr ang ements, and Christopher did not like that J ack was in day car e afte r Marg are t lost her job in October 2002 and decide d to pursue a medical doctorate. She believed h er l ac k of income was causing stress for the ir relationship, and stated that Christopher had sugg ested that her value to the family was diminished at that time. ¶ 6 I n September 2003, Marg are t moved to B loomington with Jack to live with her mother and her mother’ s h u sband. Marg are t moved back in with Christopher in Minnesota in Nov em ber 2003, wher e she stay ed throug h September 2005. I n October 2005, she and Christopher boug ht a house for her in Peoria , and she moved there with Jack and Nichola s in Dece mber 2005. ¶ 7 I n 2006 and 2007, Christopher visited Marg are t and their children infreque ntly in Peoria. I n 2006, Christopher left his job with Sprint and started his own compa n y ; h e s pent approximately

nine months on the road f or work during 2007. L ater in 2007, he took a job with Sprint in Chicag o so he could visit Marg are t and their children in Peoria on wee kends. After sever al months of this arra ng ement, he tr ansitioned his job to the Peoria are a. ¶ 8 I n summer 200 8
, M ar gar et d ec i d ed t o p u rsue a divorce

. She claimed that she and Christopher continued f

ighting and did so in front of the c hildren. ¶ 9 M arg are t not only testified about the verba l alterc ations that she had with Chri s t o p h er

over the y ear s, b u t al s o about phy sical confr ontations. She stated that Christopher was phy sical l y v i olent toward her on “too numerous occa sions to count.” Marg are t mentioned episodes in Minnesota in which Christopher threw an ironing board at h er; kicked a bathroom door open to g et to her; and g rabbe d her in the neck are a, there by pulling the seams out of her shirts. She also mentioned episodes that occur red in I llinois ; in par t i cular, she described a 2007 incident in which 31⁄2-y ear -old Nicholas saw Christopher forc e Marg are t’s head to the bathroom floor af ter for cing open the door

to ge t to her. ¶ 10 Marg are t also testified that she and Christopher had not had sex since October 2008 and had bee n sleeping in separate beds. ¶ 11 Marg are t testified t hat an incident i n April 2009 convince d her that rec onci l i at i on was impossibl e. J ack told Marg are t one morning that Christopher hit him in the fac e the previous night. Marg are t testified t hat J ack’ s ey e wa s purple, and that he had marks on his neck, on his chee k, and on the top of his head. Christopher admitted to Marg are t that he had hit J ack. Around April 28, 2009, Christ opher le ft the house pe rmane ntly

. ¶ 12 During closing arg uments, Marg are t’s attorney re q u es ted that the circ uit court enter a bifurcated judg ment dissolving the parties’ marriag e. ¶ 13 At the close of the hear ing, the circ uit court found that “[i] t is abundantly clea r from the evidenc e that this marria g e is irretrievably broken, that there are i n d eed irrec oncilable differ ence s.” The c ourt noted:
“I do find that in the spring of 2002 this–these parties wer e separ ated for a period of six months or there about. I find that in the fall of 2003 these parties wer e separ ated and
apart for three months, and I find that beg inning in Dec ember of 2005 for a period of time which is not rea lly

clea r to this Court as to how l ong , but there was the testimony

-3-as to the Peoria house and the Minnesota house

. Clearly this couple g ot back toge ther at some poin t , i n other words attempted

rec onciliation, and if that was g oing to ultimately lead to a healing o f t h e m ar ri ag e it

en d ed ag ain with a couple of events around November of 2009 with the h u s b an d chec king himself into the psy ch wa rd.”
Acc ording ly
, the court found that Marg are t ha d proven that g rounds exis ted to dissolve the marria g e. ¶ 14 Over C h ri s t o p h er ’s o b j ec t i o n , t h e ci rcuit court enter ed a bifurcated judgme nt of dissoluti on. Specifica lly
, the court found that entering s u ch a j u d gment was in the best interests of the pa

rties and their

children. ¶ 15 After further litigation, including sever al plead i n g s filed by Christopher related to the bifurcated judg ment, at a he aring on J anuary 24, 2012, the circ uit court stated that it failed to g rant Christopher a

chanc e to be he ard on the April 14, 2011, motion to bi furc ate. Af ter hearing arg uments, the court ag ain found that bifurcation was proper and specific ally found that “ther e is no just rea son for delay for either enfor ceme nt or appea l or both of the bifurcation and entering J udg ment of Dissolution of Marriag e, as I did in April of last y ear .” ¶ 16 Christopher appe aled.

¶ 17 ANALYSI S ¶ 18 I nitially
, we note that Marg are t has not filed an appellee ’s brief with this court. How ever , beca use the rec ord is simple and beca use we can easily rule on Christopher’s alleg ations of

err or without the aid of an appellee ’s b rief, we will consider the appea l. First Capitol Mortgage Corp. v. Talandis Cons truction Corp. , 63 I ll. 2d 128, 133 (1976). ¶ 19 Despite the fac t that the circ uit court’s ruling was adver se to Christopher
, he has raised at the outset an issue of whether this court has jurisdiction to hea r this appea l. Christopher
arg ues that the circ uit court err ed when i t found pursuant to I llinois Supreme Court Rule 3 0 4 (a ) (ef f. Feb. 26, 2010) t hat t here was no just rea son to delay either enforc ement of, o r appea l from, the cir cuit court’s judg ment, or both. ¶ 20 I n In re Marriage of Bogan
, 116 I ll. 2d 72 (1986), our supreme court addre ssed, in part, whether a litigant could challenge the entry of a bifurcated judgme nt of dissoluti on of marria g e on appea l, even though the appellant did not challeng e the c ircuit court’ s finding that g rounds exis ted to dissolve the marria g e. I n addre ssing this question, our supreme court noted a pr evious dec ision in which it held: “[A] petition for dissoluti on advanc es a single claim for an order dissolving the parties’ marria g e, and that the numerous other issues, such as cu s t ody
, property division and support, are mere ly ancillary to the cause of action. There fore
, since they are not separ ate claims, in order to avoid piece meal appeals arising out of the same litigation, we conclude d that Rule 304(a) (87 I ll. 2d R. 304(a) ) does not authorize appea l from judgme nts on the separ ate i s s u es .” Bogan
, 116 I ll. 2d at 75 (citing In re Marriage of Leopando , 96 I ll. 2d 114, 119 (1983)).
Howeve r, the Bogan court held that Leopando did not fore close a litigant’s ability to appea l

-4-a bifurc ated judg ment of dissolution: “Allowing a litigant to appea l the bifurcation of a judgme nt, wher e timely objection was made before the trial court, does not encour ag e piece meal appea ls involving the dissoluti on itself or the ancillary issues. Furthe rmore, if we ref use to allow a litiga nt to appea l the propriety

of a bifur cate d judgme nt until all of the ancillary issues have been resolved, the issue would be moot and appea l on t h at i s sue would there fore be fore closed.” Bogan , 116 I ll. 2d at 76. ¶ 21 We acknow ledg e sever al case s have construed Bogan to stand for the p roposition that

a bifurcated judgme nt of dissoluti on can be appea led when the circ uit court makes a finding pursuant to Rule 304(a) that no just rea son exis ts to delay enfor ceme nt or appea l or both. In

re Marriage of Link
, 362 I ll. App. 3d 191, 193 (2d Dist. 2005); In re Marriage of Mardjetko
, 369 I ll. App. 3d 9 3 4
, 936 (2d Dist. 2007); In re Marriage of Hluska
, 2011 IL App (1st) 092636, ¶ 70. Howeve r, we disag ree with this interpre tation of Bogan

. The Bogan decision

n ev er stated that a Rule 304(a) finding was made in that case , nor did it state th at a R u l e 304(a) finding was neede d to appea l a b i furcated judgme nt of dissoluti on. We believe the
proper interp retation of Bogan is that the decision to enter a bifurcated judgme nt of dissoluti on constitutes a final and appea lable judg ment under Illinois Supreme Court Rule 301 (ef f. Fe b. 1, 1994). See Bogan
, 116 I ll. 2d at 75-76; acc ord In re Marriage ofAwan
, 388 I ll. App. 3d 204, 210 (3d Di s t

. 2 0 0 9 ) (h olding that “a dissoluti on judgme nt in bifurcated
proce eding s is valid and that the rese rvation of issues d o es not rende r the judgme nt of dissoluti on nonfinal”) ; In re Marriage of W ade
, 408 I ll. App. 3d 775, 781 (1st Dist. 2011) (stating that “[b] y g ranting a bifurcated judg ment of dissolution, t he court at least resolved

one issue prese nt in the proce eding s and provided the parties and their children with certainty and finality reg arding the parties’ marital status”); Copeland v. McLean
, 327 I ll. App. 3d 855 (4th Dist. 2002) (allowing an appea l from a bifurcated judgme nt of dissoluti on without any mention of Rule 304(a) ); In re Marriage of Blount
, 197 I ll. App. 3d 816 (4th Dist. 1990) (same)

. Given that the decision to enter a bifurcated judgment of dissoluti on is a final and
appea lable order under Rule 301, whether th e co u rt i n t h is case even made a Rule 304(a) finding is irrele vant. Acc ording ly
, we hold that we have jurisdiction to hear the appea l under Rule 301. ¶ 22 Turning to the merits, Christopher posits numerous arg uments on appea l, including that the court err ed when it f

ound that g rounds exis ted to justi fy the dissolution of his ma rriag e to Ma rg are t and when it e ntere d the bifurcated judgme nt. We will addre ss the se arg uments in turn. ¶ 23 First, Christopher arg ues that the c ircuit court err ed when it f ound that g rounds exis ted
to justify the dissoluti on of his marria g e to Marg are t. Pri m ar i l y , C hristopher arg ues that Marg are t failed to prov e t h at the parties lived “sepa rate and apart” as require d by section 401(a) (2) of the I llinois Marriag e and Dissolution of Marriag e Act (Ac t ) (750 IL CS 5/401(a)( 2) (West 2010)). ¶ 24 One g round upon which a dissoluti on of marria g e may be g rante d is “[t] hat the spouses have lived separ ate and apart for a continuous period in excess of 2 y ear s and irrec oncilable differ ence s have cause d the irretrievable brea kdown of the marria g e and the court determines

-5-that eff orts at rec onciliation would be impractica ble and not in t h e b est interests of the family .” 750 IL CS 5/40 1 (a )( 2 ) (W est 2010). P arties can be said to be li ving “sepa rate and
apart” even if they reside in the same house. In re Marriage of Kenik
, 181 I ll. App. 3d 266, 273-74 (1989); In re Marriage of Dowd
, 214 I ll. App. 3d 156, 159 (1991). Relevant considerations to whether the parties wer e living separ ate lives include whether the parties had cea sed marital relations and the type of communication, or lack thereo f, b et we en the parties. Kenik , 181 I ll. App. 3d at 273. ¶ 25 I n this case , Marg are t testified at the April 14, 2011, hear ing that Christopher moved out perma nently around April 28, 2009. She also testified that prior to that move, the parties had
not had sex since October 2008 and had been sleeping in separ ate beds. Christopher neither impeache d Marg are t on these statements nor offe re d an y evidenc e to the contra ry at the hearing. Under these circ umstances, we hold that Marg are t did in fac t prove that the parties had been living separ ate and apart as requi re d b y t h e Act. Acc ording ly
, we hold that the cir cu i t co urt did not err when it found that g rounds exis ted in the form of irrec oncilable differ ence s to justi fy

the dissolution of the parties’ mar riag e. ¶ 26 Se c o n d
, Christopher arg ues that the circ uit court erred when it bifurca ted th ep r o c e e d in g s

. Christopher disag ree s with the court’s ruling that appropriate circ umstances exis ted to g rant the motion to bifurcate. ¶ 27 Sect i o n 4 0 1 (b ) o f t h e Act g rants the circ uit court the authority to enter bifurcated judgme nts in divorce ca ses: “Judgment [ of d i s s o l u t i o n o f m arr iag e] shall not be entered unless, to the ex tent it has jurisdiction to do so, the court has considere d, approve d, rese rved or made provision for child custody
, the support of any ch i l d o f t h e marria g e entitled to support, the maintenanc e of either spouse and the dispositi on of property

. The court may enter a judgme nt for dissoluti on that rese rves any of these issues either upon (i) ag ree ment of the parties, or (ii) motion of either party and a finding by t h e co u rt that appropriate circ umstances e x ist.” 750 IL CS 5/ 401(b) ( West 2010). The decision to enter

a bifurc ated judgme nt is a matter within the circ uit c ourt’s discretion and we will not disturb that decision absent an abuse of that discretion. Copeland
, 327 I ll. App. 3d at 865. ¶ 28 “Appr opriate circ umstances” is a nebulous concept. Copeland
, 327 I ll. App. 3d at 865. Our supreme court has stated that rea sons for bifurca tion ca n ex i st if they are of a caliber

s i m i l ar to a lack of jurisdiction over the responde nt, lack of an ability to pay sup p o rt , o r

co ncerns for children. S ee Bogan
, 116 I ll. 2d at 80. I n W ade
, the First District d et er m i n ed that o n e such rea son was when the bifurcation was “nec essary to protec t and promote the

em otional and mental well-be ing of the parties’ children.” W ade
, 408 I ll. App. 3d at 7 8 0

. Whil e our supreme court has emphasized that the interests of finality and avoiding piece meal litigation will often weig h ag ainst entering a judgme nt of dissoluti on prior to the resolution of all ancillary issues to a divorce proce eding
, it has also rec og nized that “ther e are certainly

case s wher e the persona l circ umstances o f the parties nece ssitate bifurcated proceeding s.” In re M arriage of Mathis , 2012 IL 113496, ¶ 31. ¶ 29 I n this case , the circ uit court found that the entry of a bifurcated judgme nt of dissoluti on

-6-was justified in part beca use of the eff

ect the marital issues wer e h av i n g o n the parties’ children. Marg are t testified that the marital issues she and Christopher wer e having occur red in front of the c hildren, including an episode in which Christopher forc ed Marg are t’s head to the bathroom floor. Ma rg are t also testified that she dec ided ag ainst any further attempts at reconciling the marriag e af ter the A pril 2009 incident in which Christopher struc k J ack. Under these circ umstances, we ag ree with the circ uit court that appropriate circ umstances exis ted to bif

urca te the proce eding s. See W ade
, 408 I ll. App. 3d at 780. Thus, we hold that the court’s d ec i s i on to enter a bifurcated judgme nt in this protrac ted and contentious litigation was not a n abuse of discretion. ¶ 30 Christopher also arg ues that the circ uit court violated his due proce ss rig hts by failing to h o l d an evidentiary hearing on the motion to bifurcate and that the court shou l d h av e appointed a g uardia n ad litem befor e it bifurcated the proce edin g s

. Howeve r, Christopher has
not cited any authority that stands for the propositions upon which his arg u m en t s rest. There fore
, following the section 401(b ) statutory authority
, we reje ct these arg uments as meritless. See 750 IL CS 5/ 401(b) ( West 2010). ¶ 31 W e ac k n o wl edg e that Christopher has attempted to raise numerous other i s s u es o n appea l. Howeve r, beca

use an appea l from the en t ry of a bifurcated judgme nt allows a revie wing court to addre ss only the judgme nt of dissoluti on of the marria g e and the bifurcat i o n i t s elf (see Bogan
, 116 I ll. 2d at 76), we there fore lack appellate jurisdiction to consider Christopher ’s re maining a rg uments.

¶ 32 CONCLUSI ON ¶ 33 The judgme nt of the circ uit c ourt of Peoria County entering the bifurca ted judgme nt of dissoluti on is affirme d.

¶ 34 Affirmed.

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