Feb 28, 2023

IICLE Family Law Flash Points - February 2023

Trial Court’s Bar of Evidence Pertaining to Wife’s Alleged Medical Condition UpheldThe trial court granted the husband’s motion to bar the wife from presenting evidence pertaining to her alleged medical condition at trial inIn re Marriage of Keegan,2022 IL App (2d) 190495. The wife had failed to participate in a Supreme Court Rule 215 examination ordered by the court and had also failed to sit for her court-ordered deposition on more than one occasion, while also failing to turn over medical records pertaining to her alleged inability to work. In her answers to interrogatories, the wife had put her medical condition at issue by claiming neurological problems that impacted her ability to work. The wife appealed the barring of her testimony and of introduction of evidence pertaining to her medical condition. The appellate court upheld both. S.Ct. Rule 219(c) permits a trial court to impose sanctions on any party who unreasonably refuses to comply with an order, including preventing a party from maintaining a claim or defense and barring testimony. The wife focused her argument on the fact that the trial court stated that she did not willfully fail to attend one of her scheduled depositions. However, Rule 219(c) does not speak to willful refusal to comply with an order, but rather unreasonable compliance. The appellate court noted that the trial court could have made a proper finding of willfulness due to the facts of the case, but that was not required. The wife was the party who put her medical condition at issue by claiming that she did not have the ability to work and was therefore a maintenance candidate. By the time trial commenced, two years had passed, and at no point had she produced any medical records or participated in the court-ordered Rule 215 evaluation. The trial court did not abuse its discretion in barring her testimony and not allowing her to introduce other evidence pertaining to her medical condition.Witnesses Are Prohibited from Discussing Testimony with Counsel Once They Take Witness StandThe wife inKeegan, supra,appealed the trial court’s order prohibiting her from discussing her testimony with counsel once court concluded for the day and while she was still considered “on the stand.” 2022 IL App (2d) 190495 at ¶21. The trial proceedings were extended over several weeks and months, and at one point one recess lasted almost 100 days. The wife argued that such an order deprived her of the benefit of legal representation, which is a protected due-process right. The appellate court affirmed the trial court. “A civil party does not have a right to consult with his [or her] counsel at any time about any matter during the course of his or her testimony.” 2022 IL App (2d) 190459 at ¶61, quotingReynolds v. Alabama Department of Transportation,4 F.Supp.2d 1055, 1066 (M.D.Ala. 1998). The appellate court noted thatReynoldswas not precedential, but agreed with the summation of its decision and applied it. Further, a testifying party is permitted to engage in nontestimonial matters with counsel during the period of testimony, including strategizing, developing tactics, and generally managing the case. The court also noted that even in criminal proceedings, a defendant does not possess the right to discuss testimony with his or her counsel while that testimony is in progress.Trial Court’s Bar of Maintenance UpheldAfter the wife inKeegan, supra, was barred from presenting evidence pertaining to her medical conditions that prevented her from being employed (see above), the trial court denied her request for maintenance. There was conflicting evidence concerning her ability to sit and stand, which she claimed she could not do. Her most recent part-time salary as a physician was $93,000, and the husband’s most recent base salary as a lawyer was $100,000. 2022 IL App (2d) 190495 at ¶32. In its original order, the trial court reserved maintenance for 36 months and allowed the wife to come into court and petition for support upon a substantial change of circumstances in the future. After hearing the wife’s motion to reconsider, the trial court denied her request and forever barred her from the receipt of maintenance. No transcript of the hearing on the motion to bar was made available to the appellate court, and therefore it presumed such ruling was in conformity with the law and supported by the facts. Therefore, the trial court’s bar of maintenance was not an abuse of discretion.Award of Rule 137 Sanctions and §508(b) Attorneys’ Fees UpheldInEisterhold v. Gizewski,2022 IL App (1st) 210490, a parentage action, the mother and father entered into an agreed allocation judgment, which included language that provided that the father would pay $295 per month in child support and that all child support payments would be made directly from the father to the mother. Ten days after the entry of the allocation judgment, the mother brought a motion titled “Motion for Entry of Withholding Order” and asserted that the father’s counsel had agreed, after the allocation judgment was entered, that a uniform order of support would be entered, but that counsel subsequently refused to agree to the entry of such an order. 2022 IL App (1st) 210490 at ¶5. As such, the mother was prevented from having child support withheld from the father’s paycheck. The mother later filed a motion to voluntarily withdraw her motion for entry of a withholding order. The trial court granted the father time to respond to the motion rather than granting it upon presentment, and the father subsequently filed a petition for S.Ct. Rule 137 sanctions and attorneys’ fees pursuant to §508(b) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101,et seq.The father argued that the mother, through counsel, had represented to the court that he had not paid at least two months of child support in order to bolster her claim that a withholding order needed to be put in place, which was false. The father also argued that the mother had unnecessarily increased the cost of litigation by causing him to defend against the motion for entry of a withholding order when the parties had just entered an allocation judgment in which they had agreed for the father to directly make payments to the mother. The trial court granted the petition for sanctions, finding that the mother’s motion for withholding contained a false assertion that the father had not paid child support for June and July 2019 and that the mother’s counsel repeated such assertions even after the court paused the proceedings and had counsel call each of their respective clients. After hearing on the father’s petition for sanctions and attorneys’ fees, the trial court ordered the mother to pay the father $2,500 as a Rule 137 sanction, the mother’s counsel to pay the father $2,500 as a Rule 137 sanction, the mother to pay $9,296.80 for §508(b) fees, and the mother’s counsel to pay $9,296.80 as §508(b) fees. 2022 IL App (1st) 210490 at ¶13. The mother appealed, and the appellate court upheld. Rule 137, which states in pertinent part that “[t]he signature of an attorney or party constitutes a certificate by him that he has read the pleading [and] that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,” is penal in nature and strictly construed. 2022 IL App (1st) 210490 at ¶35, quoting S.Ct. Rule 137. The mother did not challenge the trial court’s findings in its order or the fact that the trial court identified two motions, signed by the mother’s counsel, that did not comply with Rule 137 and warranted sanctions. Therefore, the trial court did not abuse its discretion in awarding attorneys’ fees and imposing sanctions.Trial Court’s Continuance of Motion for Voluntary Dismissal UpheldThe mother inEisterhold, supra, filed a motion to voluntarily dismiss her motion for entry of a withholding order, which the trial continued upon presentment rather than granting outright. The mother appealed, claiming that she had an unfettered right to dismiss her motion because it was filed and served before any hearing or trial on the motion. Her argument related to when the trial court should have dismissed her motion rather than the substance of the motion. The mother conceded that even if the trial court would have granted her motion, the trial court would still have had jurisdiction to consider the petition for sanctions and fees filed by the father (see above). The appellate court held that there was no dispute that the mother had received the relief she requested in her motion and at no point was she facing an adverse judgment on her motion. Practically, even if the trial court would have granted her motion upon presentment, the effect of that ruling would not have changed the outcome because she did not identify any relief to which she was entitled that she had not received — her motion was in fact nonsuited.

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