In re Marriage of Potenza, 2020 IL App (1st) 192454

In re Marriage of Potenza, 2020 IL App (1st) 192454

1. Case citation and parties
- In re Marriage of Potenza, 2020 IL App (1st) 192454 (1st Dist., Dec. 31, 2020).
- Petitioner-Appellee: Francesco Potenza. Respondent-Appellant: Vanessa Wereko.

2. Key legal issues
- Whether the trial court properly awarded guardian ad litem (GAL) fees to an attorney who served as GAL in related Lake County proceedings but did not act as GAL in the Cook County case.
- Whether bifurcation of the divorce was proper.
- Whether denial of a motion for substitution of judge was proper.
- Whether an ex parte order of protection that transferred custody complied with statutory procedures for transfer of custody.
- Whether discovery sanctions (precluding testimony about financial matters) and summary dismissal of multiple motions were improper.
- Whether marital assets and financial rulings were allocated fairly.

3. Holding/outcome
- The appellate court: affirmed in part, vacated in part, reversed in part, and remanded in part.
- Vacated the award of fees to the GAL who did not work on the Cook County case (Lake County GAL fees).
- Reversed the transfer of custody to Potenza because statutory procedures for transfer of custody were not followed.
- In all other respects (including bifurcation, denial of substitution of judge, discovery sanctions, many motion rulings, and allocation of marital assets), the trial court’s rulings were affirmed.

4. Significant legal reasoning
- GAL fees: The court concluded it was improper to award fees in the Cook County case to an attorney who had acted only as GAL in separate Lake County proceedings; the petitioner lacked the necessary connection/standing in the Cook County matter to justify that award.
- Custody transfer: The trial court issued an ex parte order of protection and transferred custody to Potenza, later extending it after hearings. The appellate court reversed the custody transfer because Potenza did not follow the statutory procedures required to effect a transfer of custody (procedural safeguards in the controlling statute were not satisfied).
- Bifurcation and substitution: The record showed the parties (and Wereko) consented to bifurcation; the motion to substitute judge failed to show the high threshold of actual prejudice or bias required under governing authorities; the hearing judge’s factual findings were sustained.
- Discovery sanctions and other rulings: The court’s discretionary use of discovery sanctions and its disposition of numerous motions were reviewed for abuse of discretion and largely upheld.

5. Practice implications
- Do not rely on an order of protection as a vehicle to effect a custody transfer without strict compliance with statutory transfer procedures; failure to follow mandated steps risks reversal.
- Petitioning for GAL fees requires a clear nexus to the matter before the court; fee petitions should be filed in the case where the GAL actually performed work.
- Obtain express, on-the-record consent for bifurcation if financial issues will be reserved; preserve appellate issues by objecting contemporaneously if disagreeing.
- Motions to substitute judges require specific, factual proof of prejudice — generalized complaints will likely fail.
- Strictly comply with discovery obligations; refusal to produce relevant information can lead to preclusion of testimony and other serious sanctions.
- Carefully perfect appeals (service/notice requirements) to avoid dismissal.