By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
1. Trial court’s bar of evidence pertaining to wife’s alleged medical condition upheld. The trial court granted husband’s motion to bar wife from presenting evidence pertaining to her alleged medical condition at trial. Wife had failed to participate in a 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. Wife had put her medical condition at issue by claiming she had neurological problems which impacted her ability to work in her answers to interrogatories. Wife appealed the bar of her testimony and introduction of evidence pertaining to her medical condition. The Appellate Court upheld. Rule 219(c) permits a trial court to impose sanctions upon any party who unreasonably refuses to comply with an order, including preventing a party from maintaining a claim or defense and barring testimony. Wife focused her argument on the fact that the trial court stated that shedid 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 willfullness due to the facts of the case, but that was not required. Wife was the party who put her medical condition at issue by claiming 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 or allowing her to introduce other evidence pertaining to her medical condition. In re Marriage of Keegan and Papin, 2022 IL app (2d) 190495.
In re Marriage of Keegan 2022 IL App (2d) 190495
2. Witnesses are prohibited from discussing testimony with counsel once they take the witness stand. Wife 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.” The trial proceedings were extended out over several weeks and months and at one point one recess lasted almost 100 days. She argued that such as order deprived her of the benefit of legal representation, which is a protected due process right. The Appellate Court affirmed. A civil party does not have a right to consult with his counsel at any time about any matter during the course of his testimony. Reynolds v. Alabama Depart. of Transportation, 4 F. Supp. 2d 1055 (M.D. Ala. 1998). The Appellate Court noted that Reynolds was not precedential but agreed with the summation of its decision and applied it. Further, a testifying party is permitted to engage in non-testimonial 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. In re Marriage of Keegan and Papin, 2022 IL app (2d) 190495.
In re Marriage of Keegan 2022 IL App (2d) 190495
3. Trial court’s bar of maintenance upheld.After wife was barred from presenting evidence pertaining to her medical conditions which prevented her from being employed (see Flash Point #1), 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 husband’s most recent base salary as a lawyer was $100,000. In its original order, the trial court reserved maintenance for 36 months and allowed wife to come into court and petition for support upon a substantial change of circumstances in the future. After hearing on wife’s motion to reconsider, the trial court denied wife’s request and forever barred wife 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. In re Marriage of Keegan and Papin, 2022 IL app (2d) 190495.
In re Marriage of Keegan 2022 IL App (2d) 190495
4. Award of Rule 137 sanctions and 508(b) attorneys’ fees upheld. In a parentage action, mother and father entered into an agreed allocation judgment which included language that provided that father would pay $295 per month in child support and that all child support payments would be made directly from father to mother. Ten days after the entry of the allocation judgment, mother brought a motion entitled “Motion for Entry of Withholding Order” and asserted that father’s counsel had agreed that after the allocation judgment was entered a Uniform Order of Support would be entered and that counsel subsequently refused to agree for the entry of such an order. As such, mother was prevented from having child support withheld from father’s paycheck. Mother later filed a motion to voluntarily withdraw her Motion for Entry of a Withholding Order. The trial court granted father time to respond to the Motion rather than granting it upon presentment and father subsequently filed a Petition for Rule 137 Sanctions and 508(b) Attorneys’ Fees. Father argued that mother had represented, through counsel, 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. Father also argued that 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 whereby they had agreed for father to directly make payments to mother. The trial court granted the petition for sanctions finding that mother’s motion for withholding contained a false assertion that father had not paid child support for June and July 2019, and that 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 father’s petition for sanctions and attorneys’ fees, the trial court ordered mother to pay father $2,500 as a Rule 137 sanction; mother’s counsel to pay father $2,500 as a Rule 137 sanction; mother to pay $9,296 for 508(b) fees; and mother’s counsel to pay $9,296 as 508(b) fees. Mother appealed and the Appellate Court upheld. Rule 137, which states in pertinent part that the 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 good faith argument, is penal in nature and strictly construed. Mother did not challenge the trial court’s findings in its order or the fact that the trial court identified two motions, signed by mother’s counsel, which 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. Eisterhold v. Gizewski, 2022 Il App (1st) 210490.
Eisterhold v. Gizewski 2022 IL App (1st) 210490
5. Trial court’s continuance of motion for voluntary dismissal upheld. Mother filed a motion to voluntarily dismiss her motion for entry of a withholding order which the trial continued upon presentment rather than granting outright. 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 should have dismissed her motion rather than the substance of the motion. 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 Flash Point #3). The Appellate Court held that there was no dispute that 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 is entitled which she has not received – her motion was in fact been nonsuited. Eisterhold v. Gizewski, 2022 Il App (1st) 210490.
Eisterhold v. Gizewski 2022 IL App (1st) 210490