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SIXTH DIVISION

May 17, 2002

Nos. 1-01-3676, 1-01-3695, 1-01-3710 (consolidated)

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Maria Partipilo appeals from numerous rulings of the trial court involving dissolution ofmarriage proceedings initiated by Frank Partipilo. Maria essentially makes two contentions onappeal, namely, that (1) the trial court improperly denied her motions for substitution of judge asof right and for cause, and (2) the court erred in ruling that the Partipilos' divorce could proceedprior to the resolution of Maria's other claims against Frank. For the reasons that follow, weaffirm the trial court's rulings.

The Partipilos married in 1962 in Italy. The contents of the 19-volume record reveal theacrimonious and prolonged nature of the Partipilos' divorce case and the numerous proceedingsthat have preceded this appeal. In December 1998, Frank filed a petition for dissolution ofmarriage in case number 98 D 20652 (hereinafter, the divorce case). The Partipilos each had anownership interest in F&V Cement Contractors, Inc., which Maria incorporated in March 1975and which performs cement and paving work for the City of Chicago, among other accounts. InAugust 1999, Maria moved to add additional parties to the divorce proceedings, namely,Bernardina Barbenente, who is the Partipilos' daughter and an employee of F&V Cement andowner of Amigo Landscaping, Inc., and Barbara Hendricks, an employee of F&V Cement. Mariaalleged that Frank and the two women diverted funds from F&V Cement into AmigoLandscaping (which was involuntarily dissolved in 1998) and also diverted other marital assets. Frank moved to strike and dismiss Maria's motion, arguing that Maria must bring any tort claimsagainst Barbenente, Hendricks and Amigo Landscaping in a separate court, not by way of thedivorce case. In December 1999, Judge Lawrence deferred ruling on Maria's motion to addadditional parties. The divorce case was set for trial in July 2001.

In April 2001, Maria filed No. 01 CH 6280 against Frank, Barbenente, Barbenente'sminor son, Hendricks, Amigo Landscaping and, derivatively, F&V Cement. In a complaintspanning more than 300 pages,⁽¹⁾ Maria stated she was the sole shareholder of F&V Cement andthat she loaned "her personal pension fund monies" to start the company, continued to capitalizethe company and, in return, received shares of common stock in F&V Cement. In the complaint,Maria contended that Frank beat her and threatened her life in a successful attempt to coerce herinto transferring stock to him and that he later forced her to accept the transfer of half of F&VCement's shares back to her. Maria also alleged that Frank committed fraud against F&VCement by using F&V Cement's labor and materials to perform "side jobs" and receivingpayments that he did not share with the company.

Maria moved to set a new trial date in the divorce case, alleging that Frank had violateddiscovery rules. In May and June 2001, Maria filed notices of her claims to nonmarital propertyin No. 01 CH 6280 and in No. 01 M1 402155, a suit that the City of Chicago brought against thePartipilos for real estate zoning violations and in which Maria had filed a cross-claim againstFrank for breach of contract and breach of fiduciary relationship. Maria asked the court to staythe divorce case and allow No. 01 CH 6280 and No. 01 M1 402155 to proceed first. JudgeLawrence denied the motion to stay the divorce trial and deferred ruling on the discovery issues.

In July 2001, Maria filed a complaint in No. 01 CH 10785 pursuant to section 2-701 ofthe Code of Civil Procedure (the Code) (735 ILCS 5/2-701 (West 2000)) seeking a declaratoryjudgment of her right to proceed with No. 01 CH 6280 prior to the divorce proceedings.⁽²⁾ Mariaclaimed that under section 503(b)(1) of the Illinois Marriage and Dissolution of Marriage Act(the Act) (750 ILCS 5/503(b)(1) (West 2000)), nonmarital property must be assigned to a spouseand its value must be determined prior to the entry of a judgment for dissolution of marriage andthat No. 01 CH 6280 must be resolved before the divorce case could proceed. Maria asked thetrial court to transfer the divorce case to the judge assigned to hear No. 01 CH 10785 and toconsolidate the two cases. The motion for consolidation was denied, and the court transferredNo. 01 CH 10785 to the divorce division to be heard by Judge Lawrence as a related matter to thedivorce case.

Pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2000)),Maria filed a motion for substitution of judge as of right in No. 01 CH 10785. Maria stated thatJudge Lawrence had not ruled on any substantial matter in that case and asked that the case beassigned to another judge. Following a hearing, Judge Lawrence denied the motion, stating thathe made a substantial ruling when he denied Maria's June 2001 motion to stay the divorceproceedings.

On September 28, 2001, Judge Lawrence denied Maria's motions for preliminary andpermanent injunctions and her motion for summary judgment in No. 01 CH 10785. In amemorandum opinion and order, Judge Lawrence stated that "in the absence of an expressstatutory direction giving Maria's tort claims priority, this court must balance her desire toprosecute these claims first against Frank's desire to have an early resolution of his divorceaction." The judge stated that Maria did not demonstrate "a clearly ascertainable right to haveher claims in [No.] 01 CH 6280 adjudicated before commencement of" the divorce case. Thejudge ordered that the Partipilos' divorce trial begin on October 1, 2001, and he "expresslyreserved" all claims in No. 01 CH 6280 that were not resolved in the divorce case. JudgeLawrence later denied Maria's motion to enjoin Frank from proceeding with the divorce case andalso denied her motion for substitution of judge for cause. Maria has filed three separateinterlocutory appeals pursuant to Supreme Court Rules 303 and 307(a) (155 Ill. 2d R. 303; 188Ill. 2d R. 307(a)) challenging these rulings.

On appeal, Maria first contends that Judge Lawrence erred in denying her request forsubstitution of judge as of right in No. 01 CH 10785. Frank raises the threshold issue of whetherMaria's interlocutory appeals provide this court with jurisdiction over Maria's appeal involvingsubstitution of judge. However, under Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App.3d 184, 187, 643 N.E.2d 276, 279 (1994), we find we can consider Maria's claim of error insubstitution of judge by way of her appeal seeking injunctive relief. Accordingly, we address thesubstance of Maria's contention.

According to section 2-1001(a)(2)(ii) of the Code, a request for substitution of judge asof right "shall be granted if it is presented before trial or hearing begins and before the judge towhom it is presented has ruled on any substantial issue in the case." 735 ILCS 5/2-1001(a)(2)(ii)(West 2000). A trial judge has no discretion to deny a proper motion for substitution of judge asof right. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1039, 762 N.E.2d 25, 28 (2001). Becausethe issue of whether a trial judge made a ruling on a substantial issue in a case is a question oflaw, our review is de novo. Nasrallah, 326 Ill. App. 3d at 1039, 762 N.E.2d at 28.

A judge's ruling is considered "substantial" if it is directly related to the merits of thecase. In re Marriage of Abma, 308 Ill. App. 3d 605, 610, 720 N.E.2d 645, 650 (1999). Examples of rulings on substantial issues include situations in which the trial court has ruled on amotion to dismiss, made pretrial rulings of law or where the party moving for a substitution ofjudge has discussed issues with the trial judge, who then indicated a position on a particularpoint. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 351, 722 N.E.2d 326, 330 (1999)(and cases cited therein). Even when the court has not ruled on a substantial issue, a motion forsubstitution of judge should be denied if the moving party had an opportunity to test the watersand form an opinion as to the court's reaction to his or her claim. In re Marriage of Petersen,319 Ill. App. 3d 325, 338, 744 N.E.2d 877, 887 (2001). "A party is not free to 'judge shop' untilhe finds a jurist who is favorably disposed to his cause of action." Petersen, 319 Ill. App. 3d at338, 744 N.E.2d at 887.

Based upon our review of the proceedings, we conclude that Judge Lawrence ruled on asubstantial issue in No. 01 CH 10785 before he addressed Maria's motion for substitution ofjudge as of right and that her motion for substitution was properly denied. In denying the motionfor substitution, the judge expressly based his ruling on his prior denial of Maria's June 2001motion to stay the divorce case until the conclusion of No. 01 CH 6280 and No. 01 M1 402155,stating that decision was a "ruling of substance affecting the chancery case." We agree with thejudge's assessment, in that Maria's request that the chancery court allow No. 01 CH 6280 to bedecided prior to the divorce proceedings represented the substantive relief that she sought in No.01 CH 10785. Although No. 01 CH 10785 was not filed until approximately a week after themotion for substitution of judge was denied, the relief sought in No. 01 CH 10785 was arepackaging of Maria's previous request to continue the divorce case. The judge's denial of theprevious request revealed to Maria that the court was not amenable to delaying the divorceproceedings until the conclusion of other lawsuits. For those reasons, the trial court properlydenied Maria's motion for substitution of judge as of right.

Maria's next contentions involve the denial of her numerous and varied requests to haveher claim against Frank in No. 01 CH 6280 and her cross-claim against Frank in No. 01 M1402155 adjudicated before the divorce case. She claims Judge Lawrence erred in denying hermotions for a preliminary injunction, a permanent injunction and for summary judgment in No.01 CH 10785.

In order to be entitled to an injunction, a plaintiff must demonstrate a certain and clearlyascertainable right and that he or she will suffer "irreparable harm" if relief is not granted. Lucasv. Peters, 318 Ill. App. 3d 1, 16, 741 N.E.2d 313, 325 (2000). Maria argues ad infinitum that hercauses of action against Frank constitute her "non-marital property" and "protected propertyrights" and that she "must be granted the opportunity to formalize her causes of action intojudgments for her and against Frank." It is clear that Maria has the right to sue her husband (750ILCS 65/1 (West 2000)); at issue is whether she must be allowed to resolve her suits againstFrank prior to the divorce case.

Section 503(a)(5) of the Act provides:

" '[M]arital property' means all property acquired by either spousesubsequent to the marriage, except the following, which is known as 'non-maritalproperty':

* * *

(5) any judgment or property obtained by judgment awarded to a spousefrom the other spouse[.]" 750 ILCS 5/503(a)(5) (West 2000).

Contrary to Maria's assertions, section 503(a)(5) does not provide that a cause of actioncan constitute nonmarital property; it states that a judgment can constitute nonmarital property. The essence of Maria's appeal is that she should have the opportunity to be awarded judgments inNo. 01 CH 6280 and No. 01 M1 402155 and have them classified as her "nonmarital property"prior to the division of property in the divorce proceedings. However, property is not deemed"marital" or "nonmarital" until the dissolution of marriage occurs. See In re Marriage of Henke,313 Ill. App. 3d 159, 166, 728 N.E.2d 1137, 1143 (2000); In re Marriage of Schwartz, 131 Ill.App. 3d 351, 355, 475 N.E.2d 1077, 1080 (1985) ("operation of the term 'marital property' doesnot trigger until the time of dissolution").

Maria cites no direct precedent to support her argument that her causes of action meritpriority over the divorce proceedings that Frank had previously initiated. Indeed, the oppositeapproach is favored by Illinois courts. A trial judge sitting in the domestic relations division ofthe circuit court has jurisdiction to hear all justiciable matters. In re Marriage of Devick, 315 Ill.App. 3d 908, 913, 735 N.E.2d 153, 157 (2000); In re Marriage of Isaacs, 260 Ill. App. 3d 423,428, 632 N.E.2d 228, 232 (1994). In Isaacs, the wife filed a petition for dissolution of marriage,and eight days later, the husband filed an action in the chancery division of the circuit courtseeking the imposition of a constructive trust over shares of stock held by the wife and also forbreach of fiduciary duty. Isaacs, 260 Ill. App. 3d at 425, 632 N.E.2d at 230. The wife petitionedthe chancery court to consolidate the chancery case into the divorce case, and her petition wasdenied. Isaacs, 260 Ill. App. 3d at 425, 632 N.E.2d at 230.

In his appeal, the husband argued that the trial court erred in barring him from collaterallyasserting his claims to the wife's interest in the stock. Isaacs, 260 Ill. App. 3d at 427, 632 N.E.2dat 231-32. This court stated:

"[A]s a general rule, where two actions are brought in different Illinoiscourts on the same subject to test the same rights, the court which first acquiresjurisdiction, assuming its power is adequate to administer complete justice, retainsits jurisdiction and may dispose of the entire controversy to the exclusion of allcoordinate courts." Isaacs, 260 Ill. App. 3d at 428, 632 N.E.2d at 232.

The court noted that the divorce and the husband's chancery action were both "seeking toobtain title" to the stock at issue but stated:

"While we must reserve comment on the chancery court's denial of [thewife's] motion for consolidation as it is not properly before us, we neverthelessfeel obliged to point out that both common sense and sound public policy dictatethat matrimonial litigants should not be permitted to make a circuitous run aroundthe divorce court in coordinate courts." Isaacs, 260 Ill. App. 3d at 429, 632N.E.2d at 233.

The policy considerations discussed in Isaacs are applicable here. If Maria was permittedto halt the divorce case until the conclusion of her chancery suit against Frank and her cross-claim in No. 01 M1 402155, then any husband or wife whose spouse filed a petition fordissolution of marriage could delay the divorce by filing a separate lawsuit against or involvingthe spouse and arguing that action must be resolved before the divorce case could proceed. Incomplex cases such as the Partipilos', the parties are best served by bifurcation, in which the trialcourt dissolves the marriage and leaves the division of property to be determined at a later date. We affirm the denial of Maria's requests for injunctions and summary judgment in No. 01 CH10785.

Lastly, Maria asserts that Judge Lawrence abused his discretion in denying her emergencymotion in the divorce proceeding for substitution of judge for cause. In order to make asuccessful motion for substitution of judge for cause, the party must show prejudice. 735 ILCS5/2-1001(a)(3) (West 2000); Schaller v. Weier, 319 Ill. App. 3d 172, 177, 744 N.E.2d 376, 379(2001). Proving such prejudice is a heavy burden and the conclusion of prejudice will not bemade lightly. Petersen, 319 Ill. App. 3d at 339, 744 N.E.2d at 888.

Maria argues that Judge Lawrence was Frank's "advocate" and that he "predeterminedbefore trial commenced in [the divorce case] that he would not assign to Maria as her non-maritalproperty any judgment for her and against Frank." Maria does not list specific comments by thejudge to support those assertions. In any event, based upon our review of the proceedings, wefind no evidence of bias against Maria. Maria also contends prejudice was evident becauseJudge Lawrence refused to grant her the use of an interpreter and forced her to answer questionsabout Frank's medical condition. We likewise find those claims to be meritless. Maria's motionfor substitution of judge for cause was properly denied.

Accordingly, for all of the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

O'BRIEN and O'MARA FROSSARD, JJ. concur.

1. Several pages of Maria's complaint in No. 01 CH 6280 are absent from the record. Asthe appellant, it is Maria's responsibility to furnish this court with a complete record of theproceedings at trial. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). Due to the incomplete nature of Maria's complaint, as well as its considerable length, we attemptto describe the general gist of her allegations.

2. We note that Maria's complaint in No. 01 CH 10785 states that she seeks to have No.01 CH 6280 decided prior to the divorce case but does not mention No. 01 M1 402155. BecauseMaria filed notices of her claims to nonmarital property in both cases, and for the sake ofcompleteness, our analysis will include both causes of action.