In re Marriage of Rosemarie A'hearn

• Decision Date: 21 March 2011
• Docket Number: No. 3–10–0831.,3–10–0831.
• Citation: 408 Ill.App.3d 1091,349 Ill.Dec. 696,947 N.E.2d 333
• Parties: In re MARRIAGE OF Rosemarie A'HEARN, Petitioner–Appellee,andMichael A'HEARN, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

408 Ill.App.3d 1091

947 N.E.2d 333

349 Ill.Dec. 696

In re MARRIAGE OF Rosemarie A'HEARN, Petitioner–Appellee,andMichael A'HEARN, Respondent–Appellant.

No. 3–10–0831.

Appellate Court of Illinois, Third District.

March 21, 2011.

Frank P. Andreano, Brumund, Jacobs, Hammel, Davidson & Andreano, LLC, Joliet, for Michael A'Hearn.Gregory Jumbeck, Mikal J. Stole, Reich, Jumbeck & Associates, LLP, Joliet, for Rosemarie A'Hearn.

OPINION

Justice HOLDRIDGE delivered the judgment of the court, with 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 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

[349 Ill.Dec. 699 , 947 N.E.2d 336]

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 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 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, 248 Ill.Dec. 461, 734 N.E.2d 169 (2000). Our review is de novo. In re Marriage of Gutman, 232 Ill.2d 145, 327 Ill.Dec. 510, 902 N.E.2d 631 (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, 327 Ill.Dec. 510, 902 N.E.2d 631 (quoting R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill.2d 153, 159, 229 Ill.Dec. 533, 692 N.E.2d 306 (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, 327 Ill.Dec. 510, 902 N.E.2d 631. A claim is “ ‘any right, liability or matter raised in an action.’ ” Gutman, 232 Ill.2d at 151, 327 Ill.Dec. 510, 902 N.E.2d 631 (quoting Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill.2d 458, 465, 150 Ill.Dec. 572, 563 N.E.2d 459 (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 multiple actions. Compare In re Marriage of Carr, 323 Ill.App.3d 481, 257 Ill.Dec. 1, 752 N.E.2d 1181 (1st Dist.2001), with In re Marriage of Duggan, 376 Ill.App.3d 725, 315 Ill.Dec. 811, 877 N.E.2d 1140 (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

[349 Ill.Dec. 700 , 947 N.E.2d 337]

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, 96 Ill.Dec. 73, 490 N.E.2d 1278 (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, 96 Ill.Dec. 73, 490 N.E.2d 1278. 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, 96 Ill.Dec. 73, 490 N.E.2d 1278. The court 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, 96 Ill.Dec. 73, 490 N.E.2d 1278.

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, 303 Ill.Dec. 339, 851 N.E.2d 237 (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, 257 Ill.Dec. 1, 752 N.E.2d 1181. 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, 257 Ill.Dec. 1, 752 N.E.2d 1181. While the child support matter was pending, the wife filed a petition for attorney fees. Carr, 323 Ill.App.3d 481, 257 Ill.Dec. 1, 752 N.E.2d 1181. 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, 257 Ill.Dec. 1, 752 N.E.2d 1181.

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 support was final and appealable. Carr, 323 Ill.App.3d 481, 257 Ill.Dec. 1, 752 N.E.2d 1181. 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, 257 Ill.Dec. 1, 752 N.E.2d 1181. 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, 257 Ill.Dec. 1, 752 N.E.2d 1181.

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...