No. 3--10--0831
Opinion filed March 21, 2011
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
In re MARRIAGE OF ) Appeal from the Circuit Court
ROSEMARIE A'HEARN, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Petitioner-Appellee, )
)
and ) No. 05--D--884
)
MICHAEL A'HEARN, ) Honorable
) Dinah J. Archambeault,
Respondent-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justice Carter concurred in the judgment and opinion.
Justice McDade concurred in part and dissented in part, with
opinion.
_________________________________________________________________
OPINION
The respondent, Michael A'Hearn, appeals from an order below
dismissing his petition for temporary and permanent custody of
the parties' 14-year-old son Michael (Mikey) A'Hearn. Michael
argues that the trial court abused its discretion by barring all
of his witnesses from testifying. We reverse and remand.
FACTS
Michael and Rosemarie (Rose) A'Hearn were married in 1982
and divorced in 2006. At the time of their divorce, the parties
agreed to joint custody of Mikey, with Michael awarded visitation
consistent with the Will County guidelines. On May 1, 2008,
Michael filed two petitions for rule to show cause. One petition
alleged that Rose had interfered with Michael's visitation, and
the other alleged that Rose had engaged in immoral behavior by
frequently inviting men over and by taking Mikey across state
lines to spend a weekend with a man she had met on the Internet.
The parties attended mediation on June 5, 2008, and reached an
agreement as to communication and visitation, but not custody.
Approximately one month later, Michael filed his petition to
modify custody. Michael's petition did not mention the petitions
for rule to show cause or the fact that he had allegedly been
denied visitation. Instead, Michael sought a change of custody
because he was "better able to offer a stable and nurturing
environment, emotionally and physically, for [Mikey]" and because
Rose had exhibited "erratic and irrational emotional behavior."
Michael also filed a motion requesting the court to appoint an
evaluator under section 604(b) of the Illinois Marriage and
Dissolution of Marriage Act, which the court allowed. 750 ILCS
5/604(b) (West 2008). The court appointed Dr. Mary Gardner, who
2
recommended that residential custody of Mikey be transferred to
Michael.
This matter was originally scheduled for trial on
December 14, 2009, but on November 23, 2009, the trial was reset
for May 17, 2010. Michael's attorney was also informed on
November 23, 2009, that he had to answer the outstanding
discovery and provide a list of witnesses by February 1, 2010.
Michael did not comply with the discovery order, and on May 4,
2010, Rose filed a motion to bar witnesses. Michael finally
disclosed his witnesses at 4:50 p.m. on May 12, 2010.
Rose's motion to bar witnesses was heard on May 13, 2010.
When asked to explain his behavior, Michael's attorney stated
that he had completed the Illinois Supreme Court Rule 213(f)
(eff. Jan. 1, 2007) disclosures on March 24, 2010, but that for
some unexplained reason his assistant had failed to send them
out. After finding that Michael's late disclosures would be
prejudicial to Rose and that Michael had violated both a court
order and the supreme court rules, the trial court sanctioned
Michael by barring his witnesses. The court then dismissed
Michael's petition for custody with prejudice after finding that
he could not prevail on his petition without witness testimony.
Shortly thereafter, Rose filed a petition to extend unallocated
3
maintenance and family support. On September 23, 2010, the trial
court denied Michael's motion to reconsider, and he appealed the
dismissal of his custody petition. Rose's petition for extension
of maintenance and family support remained pending before the
trial court at the time of appeal.
ANALYSIS
On appeal, Michael argues that the trial court abused its
discretion by barring his witnesses as a discovery sanction.
Michael also claims that the trial court misapplied Illinois
Supreme Court Rule 213 (eff. Jan. 1, 2007) because section 604(b)
evaluators are not witnesses that have to be disclosed under the
rule. However, before we can reach the merits of Michael's
argument, first we must decide whether we have jurisdiction over
the matter.
I. Jurisdiction
The posture of this case raises a question as to whether the
trial court's September 23, 2010, order constituted a final and
appealable order pursuant to Illinois Supreme Court Rule 301
(eff. Feb. 1, 1994) and, therefore, whether we have jurisdiction
over this case. Specifically, because Michael's petitions for
rule to show cause and Rose's petition to extend maintenance were
pending in the trial court, the trial court's order did not
4
resolve all issues between the litigants in this case. Although
the parties did not address the issue of our jurisdiction, we
have an independent duty to consider it. Vowell v. Pedersen, 315
Ill. App. 3d 665 (2000). Our review is de novo. In re Marriage
of Gutman, 232 Ill. 2d 145 (2008).
An order is final and appealable if it " 'terminates the
litigation between the parties on the merits or disposes of the
rights of the parties, either on the entire controversy or a
separate part thereof.' " Gutman, 232 Ill. 2d at 151 (quoting
R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159
(1998)). A final order that disposes of fewer than all the
parties' claims is not appealable absent an Illinois Supreme
Court Rule 304(a) (eff. Feb. 26, 2010) finding that there is no
just reason to delay the appeal. Gutman, 232 Ill. 2d 145. A
claim is " 'any right, liability or matter raised in an
action.' " Gutman, 232 Ill. 2d at 151 (quoting Marsh v.
Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465
(1990)).
We note at the outset that the case law on this issue is
currently inconsistent and difficult to reconcile. Much of the
inconsistency stems from whether postdissolution petitions are
properly characterized as new claims within a single action or as
5
multiple actions. Compare In re Marriage of Carr, 323 Ill. App.
3d 481 (1st Dist. 2001), with In re Marriage of Duggan, 376 Ill.
App. 3d 725 (2d Dist. 2007). As Rule 304(a) states, a final
order that disposes of fewer than all of the claims in one action
is not appealable unless the trial court makes a written finding
that there is no just reason to delay enforcement or appeal or
both. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Thus,
postdissolution petitions or motions that are separate actions
are independently appealable upon their resolution, whereas
filings that are part of a larger action are only appealable when
the larger action is resolved, absent a Rule 304(a) finding.
In In re Custody of Purdy, 112 Ill. 2d 1 (1986), our supreme
court held that a father's postdissolution motion for custody
constituted a separate cause of action. The court held that the
trial court's ruling on the motion constituted a final and
appealable order despite the fact that the mother's visitation
schedule for summer vacation was still undecided. Purdy, 112
Ill. 2d 1. As opposed to a dissolution action, which presents
multiple issues such as property, maintenance, custody, and child
support, the court noted that the issue of custody raised in a
postdissolution motion was a separate matter and was not
ancillary to any other issue. Purdy, 112 Ill. 2d 1. The court
6
ruled that, "[a]n order for a change of custody in this context
constitutes a final, and therefore appealable, order." Purdy,
112 Ill. 2d at 5.
Since the decision in Purdy, a split has developed among the
appellate courts regarding whether postdissolution petitions are
construed as new actions or as new claims within the original
dissolution proceeding. See, e.g., In re Marriage of Ehgartner-
Shachter, 366 Ill. App. 3d 278 (2006) (describing the split
between the First and Second Districts regarding jurisdiction of
postdissolution proceedings). In 2001, the First District of the
Appellate Court decided In re Marriage of Carr, 323 Ill. App. 3d
481. In Carr, the husband filed a motion to reduce child support
after one of his children from the marriage turned 18. Carr, 323
Ill. App. 3d 481. While the child support matter was pending,
the wife filed a petition for attorney fees. Carr, 323 Ill. App.
3d 481. After the trial court ruled in the husband's favor on
his motion, the wife filed a petition for rule to show cause
against the husband for failure to pay college expenses. Carr,
323 Ill. App. 3d 481.
The First District held that, despite the fact that
petitions were still pending in the trial court, the trial
court's order granting the husband's motion to reduce child
7
support was final and appealable. Carr, 323 Ill. App. 3d 481.
In so reasoning, the court noted that the wife's petition for
fees had nothing to do with the original dissolution proceeding,
which had taken place 10 years prior. Carr, 323 Ill. App. 3d
481. In addition, the trial court's order modifying child
support was separate from and unrelated to either the petition
for fees or the rule to show cause. Carr, 323 Ill. App. 3d 481.
In contrast, the Second and Fourth Districts have held
postdissolution petitions constitute new claims within the same
action and therefore Rule 304(a) certification is required in
order for the appellate court to exercise jurisdiction. In re
Marriage of Alyassir, 335 Ill. App. 3d 998 (2d Dist. 2003); In re
Marriage of Gaudio, 368 Ill. App. 3d 153 (4th Dist. 2006). In
particular, the Second District in Duggan, 376 Ill. App. 3d 725,
explained in dicta why it did not consider postdissolution
petitions to be separate actions. The Duggan court relied
heavily on In re Marriage of Kozloff, 101 Ill. 2d 526 (1984), to
argue that postdissolution proceedings were a continuation of the
original dissolution action. Duggan, 376 Ill. App. 3d 725.
In Kozloff, the parties began filing a series of
motions shortly after the divorce became finalized. Kozloff, 101
Ill. 2d 526. All of these petitions were heard by one particular
8
judge. In an apparent attempt to avoid that judge, the husband
argued that he was entitled to a change of venue as of right on
his petition to terminate maintenance because each
postdissolution petition constituted a new action. Kozloff, 101
Ill. 2d 526. Our supreme court disagreed with the husband's
argument and stated:
"Under the [proposed] rule, however, a change of venue can
be sought on any post-decree petition if the litigant is
dissatisfied with the judge's prior rulings on other,
related petitions despite the fact that all of the petitions
emanate from the same dissolution proceedings. Too, if
after one change of venue on a particular petition the
litigant is still unhappy, he could replace the second judge
simply by voluntarily dismissing his petition and refiling a
substantially similar petition and another motion for change
of venue." Kozloff, 101 Ill. 2d at 531.
Moreover, the Duggan court found it significant that in
Purdy the trial court had made a Rule 304(a) finding that there
was no just reason to delay the appeal. Duggan, 376 Ill. App. 3d
725. Thus, the court reasoned that Purdy merely stands for the
proposition that judgment on a postdissolution petition may be
9
appealed, but only with a Rule 304(a) finding. Duggan, 376 Ill.
App. 3d 725.
The special concurrence in Duggan advocated following the
Carr approach. Duggan, 376 Ill. App. 3d at 746 (O'Malley, J.,
specially concurring). Justice O'Malley read Kozloff narrowly
and argued that its holding was limited to venue. Duggan, 376
Ill. App. 3d at 748 (O'Malley, J., specially concurring). He
suggested that extending Kozloff beyond venue was incorrect
because such a reading conflicted with Purdy. Duggan, 376 Ill.
App. 3d at 749 (O'Malley, J., specially concurring). Justice
O'Malley reasoned that "[i]f, as the majority asserts, a
postdecree petition is actually a continuation of the original
dissolution proceeding, then there never is a postdecree
petition," and Purdy "would become wholly superfluous."
(Emphasis added.) Duggan, 376 Ill. App. 3d at 752 (O'Malley, J.,
specially concurring).
The supreme court's latest decision in Gutman, 232 Ill. 2d
145, did not resolve this conflict. In Gutman, the court held
that the trial court's order terminating maintenance was not a
final and appealable order because the wife had a petition for
rule to show cause pending in the trial court. Gutman, 232 Ill.
2d 145. The parties obtained a divorce in 1996, but the issue of
10
maintenance was reserved for the trial court. Gutman, 232 Ill.
2d 145. In 1999, the court ordered the husband to pay
maintenance for three years. Gutman, 232 Ill. 2d 145.
Approximately three years later, the wife filed a motion seeking
to continue maintenance payments, and the husband filed a motion
seeking to terminate maintenance. Gutman, 232 Ill. 2d 145.
After both motions were filed, the wife filed a petition for
indirect civil contempt, alleging that the husband had stopped
making maintenance payments in violation of the trial court's
order. Gutman, 232 Ill. 2d 145. The trial court issued a rule
to show cause against the husband. Gutman, 232 Ill. 2d 145.
After the wife failed to appear for a hearing, the trial court
granted the husband's motion to terminate maintenance. Gutman,
232 Ill. 2d 145.
The appellate court held that, although the wife's contempt
petition was a "part" of her overall action, jurisdiction was
proper because the petition did not raise "a claim for relief."
(Internal quotation marks omitted.) Gutman, 232 Ill. 2d at 151.
The court reasoned that, because the contempt petition
constituted a special, separate, proceeding, the trial court's
order terminating maintenance was a final and appealable order.
Gutman, 232 Ill. 2d 145. Our supreme court disagreed with the
11
appellate court's reasoning, finding that the wife's contempt
petition was a part of her overall action to continue
maintenance. Gutman, 232 Ill. 2d 145. Without overruling or
distinguishing Purdy or Carr, the court simply held that the
wife's contempt petition was not a separate claim. Gutman, 232
Ill. 2d 145.
Having carefully analyzed the above cases, we agree with
Carr and the special concurrence in Duggan that postdissolution
proceedings are generally new actions. We do not think that the
Second District's approach appropriately acknowledges the
significance of Purdy or is flexible enough to accommodate the
reality of postdissolution litigation. The majority in Duggan
even acknowledged:
"Purdy established the proposition that postdissolution
petitions are neither (1) part of the single claim
encompassing the predissolution proceedings *** nor (2) so
intertwined with all other postdissolution matters that they
necessarily must be viewed as raising a single
postdissolution claim, no part of which could be appealed if
some other part remained to be resolved." Duggan, 376 Ill.
App. 3d at 739.
12
The Purdy court specifically emphasized the fact that the
father's custody motion was not part of the original dissolution
proceeding or any other issue. Purdy, 112 Ill. 2d 1. At the
very least, Purdy left open the option for the reviewing court to
consider whether a postdissolution order constitutes a final and
appealable order if the postdissolution petition was not related
to any other matter.
Moreover, we understand that courts desire to avoid deciding
piecemeal appeals (Marsh, 138 Ill. 2d 458), but we think the Carr
approach, while perhaps allowing more appeals, upholds the trial
court's intent in entering a dispositive order. See Duggan, 376
Ill. App. 3d at 746-47 (O'Malley, J., specially concurring). In
addition, the other competing policy interest is acting in the
best interest of the child. In re A.W.J., 197 Ill. 2d 492
(2001). Postdissolution proceedings may well continue a decade
or more after the divorce decree is entered. See Carr, 323 Ill.
App. 3d 481. Overall, it does not serve the interests of justice
where one party can defeat appellate jurisdiction, especially on
issues of child custody, simply by filing a separate, completely
unrelated petition. The case sub judice is a perfect example.
Rose, having won at the trial level on a custody issue, could
simply defeat appellate jurisdiction by filing her petition to
13
extend maintenance which, on its face, has nothing to do with a
modification of child custody.
We note briefly that, although there are interlocutory
appeals that provide for appellate review in postdissolution
proceedings, these mechanisms would not have given us
jurisdiction in this case. Illinois Supreme Court Rule 304(b)(6)
(eff. Feb. 26, 2010) provides that orders modifying custody are
immediately appealable without a special finding by the trial
court. However, the trial court did not modify custody in this
case; instead, it denied the petition to modify custody. In
addition, Illinois Supreme Court Rule 306(a)(5) (eff. Feb. 26,
2010) allows a party to request an interlocutory appeal if the
trial court's order affects the care and custody of unemancipated
minors. Yet in order to request an interlocutory appeal, the
party requesting such an appeal must file a request within 14
days, and here Michael did not file his original notice of appeal
until that period had passed. Ill. S. Ct. R. 306(b)(1) (eff.
Feb. 26, 2010).
Finally, this holding is not in conflict with Gutman.
Gutman accepted the Second District's finding that the petition
for rule to show cause was a "part" of the underlying proceeding
and consequently represented an unresolved claim that prevented
14
appellate jurisdiction without a Rule 304(a) finding by the trial
court. Gutman, 232 Ill. 2d 145. Indeed, petitions for rule to
show cause may often constitute part of the underlying proceeding
if they are filed during the pendency of a larger petition. See
In re Marriage of Carrillo, 372 Ill. App. 3d 803 (2007) (holding
that jurisdiction would have been defeated by a pending petition
for rule to show cause alleging interference with visitation
while custody of children was still in dispute).
Having established all of the above, we hold that we can
exercise jurisdiction in this case. The petitions for rule to
show cause are not related to the modification for custody
petition. In the instant case, the petitions for rule to show
cause were filed before the petition for modification for
custody. The parties were referred to mediation in the hope that
no further court action would be necessary. The mediator
reported that the parties had reached an agreement on visitation
and communication but not custody. Michael filed his petition to
modify custody only after mediation efforts failed. Thus,
although there was no final order with regard to the petitions
for rule to show cause, those issues were apparently addressed
through mediation, and it was only when mediation failed on
custody that Michael filed his petition. Furthermore, the
15
petition to modify custody did not mention the petitions for rule
to show cause and instead referred to Rose's "erratic and
irrational emotional behavior." Overall, the petitions for rule
to show cause and the custody petition have the character of two
separate actions.
Similarly, Rose's petition to continue maintenance is a
separate action. Rose's petition alleges that she needs
continued maintenance because of her low income and the fact that
she left the work force during the marriage to care for the
parties' children. Although the petition makes passing
references to "family support" and "child support," the factual
allegations contained in Michael's petition to modify custody and
Rose's petition for continued maintenance are completely distinct
and unrelated. We hold that because the petition for
modification of custody was independent and separate from the
petitions for rule to show cause and the petition for continued
maintenance, they constitute separate actions and not related
claims.
II. Abuse of Discretion
Having decided that we have jurisdiction to review this
case, we must now decide whether barring Michael's witnesses
pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1,
16
2002) and then dismissing his petition was an appropriate
discovery sanction. We review for an abuse of discretion.
Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998). An
abuse of discretion occurs where no reasonable person would adopt
the trial court's view. McClaughry v. Village of Antioch, 296
Ill. App. 3d 636 (1998).
A sanction that results in the dismissal of litigation is
considered drastic and should only be employed when all other
enforcement efforts have failed. Sander v. Dow Chemical Co., 166
Ill. 2d 48 (1995). Dismissal is appropriate only when a litigant
has shown a "deliberate and contumacious disregard for the
court's authority." Sander, 166 Ill. 2d at 68.
In this case, barring all of Michael's witnesses and then
dismissing his petition was too harsh of a sanction. As Michael
concedes, the trial court's dissatisfaction was justified.
Despite the fact that Michael was given several more months to
complete discovery, he waited until a couple of days before trial
to disclose his witnesses. However, dismissal in this case was
an abuse of discretion because the trial court imposed the
harshest sanction available after insufficient enforcement
efforts. See Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003)
17
(holding that dismissal should be employed when other, less
drastic sanctions have proven to be unavailing).
Our review of the record establishes that the only effort
the trial court undertook to compel Michael into complying with
discovery was to continue the trial and issue a new due date.
Then, when Michael failed to comply, the court barred his
witnesses despite the fact that other sanctions existed, such as
holding Michael's attorney in contempt or awarding Rose
reasonable attorney fees. Ill. S. Ct. R. 219(c) (eff. July 1,
2002). Even acknowledging the wide discretion given to trial
courts to impose sanctions, we believe it was an abuse of
discretion to bar all of Michael's witnesses after postponing the
discovery due date one time.
In addition, "[i]n determining an appropriate sanction, the
trial judge must weigh the competing interests of the parties'
rights to maintain a lawsuit against the necessity to accomplish
the objectives of discovery and promote the unimpeded flow of
litigation." Sander, 166 Ill. 2d at 68 (citing Amoco Oil Co. v.
Segall, 118 Ill. App. 3d 1002, 1013 (1983)). In the instant
case, while the trial court certainly had an interest in seeking
compliance with its discovery order, our supreme court has stated
that child custody proceedings should focus on the best interest
18
of the child. Ill. S. Ct. R. 900(a) (eff. July 1, 2006). We do
not find that it is in the best interest of the child to have a
custody petition denied pursuant to a discovery sanction instead
of hearing the petition on the merits. Therefore, we hold that
the trial court abused its discretion in imposing a sanction that
had the effect of dismissing Michael's petition.
III. Independent Evaluator as Rule 213(f) Witness
Because we hold that the trial court abused its discretion,
we do not need to address Michael's argument that Dr. Gardner, a
professional therapist appointed pursuant to section 604(b), was
not a witness that needed to be disclosed under Rule 213(f).
Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007).
CONCLUSION
We hold that we have jurisdiction to hear this case because
the postdissolution petition is properly construed as a separate
action, not a new claim within the original dissolution
proceeding. Moreover, we hold that the trial court abused its
discretion by barring all of Michael's witnesses without engaging
in more efforts to encourage compliance, especially in a child
custody case. Therefore, we reverse and remand for proceedings
not inconsistent with this opinion.
Reversed and remanded.
19
JUSTICE McDADE, specially concurring in part, dissenting in
part:
I concur in the judgment of the court with respect to the
issue of jurisdiction. I cannot disagree with the analysis of
the case law undertaken by the majority. Nor can I overlook the
fact that our decision constitutes a reasonable reconciliation of
In re Custody of Purdy, 112 Ill. 2d 1 (1986), and In re Marriage
of Gutman, 232 Ill. 2d 145 (2008), and the relevant appellate
court cases. I, therefore, concur in this portion of the
opinion.
I write separately, however, to address a very practical
concern. I am troubled by the fact that three "separate actions"
in the instant case, all pending in the trial court at the same
time, can eventually result in three separate appeals. In my
opinion, a failure to resolve all of the concurrently-pending
"actions" so they can be reviewed in a single appeal is an
unwarranted creation of piecemeal litigation even if it is
technically compliant with a credible interpretation of existing
law. It is my assumption that, given the split in the circuits
on this issue, the supreme court will ultimately resolve it, and
trust that this potential and unnecessary proliferation of
appeals will form part of its consideration.
20
With respect to the question of the discovery sanction, I do
not find an abuse of discretion and therefore dissent from the
contrary finding of the majority. The trial court sanctioned a
fairly flagrant violation of the rules of discovery. The fact
that one party (Rose) faces the potential of being blind-sided by
undisclosed evidence or witnesses seems to me to be no less
detrimental to a reasoned determination of the ultimate best
interest of the child than the exclusion of evidence tendered by
a party who has willfully violated the fair play that is inherent
in both the discovery rules themselves and the effectiveness of
our adversarial system. The less drastic alternative sanctions
suggested by the majority – holding Michael’s attorney in
contempt or awarding Rose reasonable attorney fees – do not cure
the problems of an unbalanced consideration of the issues and an
unfair exercise in brinkmanship. As between the party who has
followed the rules and the party who violated one court order,
failed to take advantage of an extension of the obligation to
produce discovery for several months, and then violated the
second court order; it does not seem either unreasonable or
unfair to sanction the offending party. Nor does it seem
unreasonable to characterize this as "a deliberate and
21
contumacious disregard for the court’s authority." Sander v. Dow
Chemical Co., 166 Ill. 2d 48, 68 (1995).
I share the majority’s concern that such a sanction may
impact the evaluation of what is in the best interest of the
child. However, the impact is not necessarily unfair inasmuch as
it could be reasonably inferred from Michael’s disregard of the
rule that he either (1) did not care enough about his child to
timely comply with its terms or the attendant court orders or (2)
did not have confidence that he could prevail on the merits
absent an unfair advantage. That assessment is one that rests
with the trial judge who is in the best position to make it. It
is not our right to second guess the court and make the
evaluation on our own.
For all of the foregoing reasons, I agree that we have
jurisdiction to hear this appeal, but dissent from the decision
reversing and remanding this case.
22