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07/13/87 In Re Marriage of Lawrence Kutchins

July 13, 1987

IN RE MARRIAGE OF LAWRENCE KUTCHINS, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and ADELINE KUTCHINS, Respondent-Appellee

510 N.E.2d 1300, 157 Ill. App. 3d 384, 110 Ill. Dec. 269 1987.IL.985

Appeal from the Circuit Court of Du Page County; the Hon. Lewis V. Morgan, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Lawrence Kutchins (husband) appeals from an order of the circuit court which granted the motion of Adeline Kutchins (wife) to dismiss his petition for dissolution of marriage pursuant to Supreme Court Rule 219 (103 Ill. 2d R. 219) for failure to comply with the trial court's order requiring him to submit to a mental examination. The husband contends that the trial court erred when it: (1) failed to strike the wife's affirmative defense that the husband is incompetent to sue for dissolution of marriage; (2) ordered the husband to submit to a mental examination pursuant to Supreme Court Rule 215 (87 Ill. 2d R. 215) without factual support that the "condition in controversy" and "good cause" requirements of that rule had been met; (3) failed to fix the scope of the mental examination; and (4) conditioned the husband's right to have an attorney present during a court-ordered mental examination upon the permission of the examining physician. For the reasons set forth below we affirm.

On February 23, 1983, the circuit court of Cook County placed the husband under "guardianship of the estate" in accordance with section 11a-3(a)(2) of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-3(a)(2)). On June 15, 1983, the husband filed a petition for dissolution of marriage which the trial court dismissed pursuant to section 2-619(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(2)), based on the earlier finding that the husband is a disabled person and therefore did not have legal capacity to sue. (In re Marriage of Kutchins (1985), 136 Ill. App. 3d 45, 47, 482 N.E.2d 1005.) In that case, we determined that one who has been adJudged a disabled person and for whom an estate guardian has been appointed has legal capacity to sue for dissolution of marriage. However, the court did not foreclose the wife, on remand, for attempting to show that the husband is, in fact, mentally incompetent for purposes of suing for dissolution of his marriage. 136 Ill. App. 3d 45, 48-49, 482 N.E.2d 1005.

Following remand, the wife filed a response in which she asserted as an affirmative defense that because of the husband's prior adjudication as a disabled person, he was mentally incompetent for purposes of suing for dissolution of marriage. In conjunction with the affirmative defense, the wife also filed a petition for a mental examination of the petitioner pursuant to Supreme Court Rule 215. After hearing argument, the court ordered the mental examination to proceed in accordance with the test as set forth in our earlier opinion to determine the husband's competence to bring a dissolution of marriage action. The trial court also ordered the husband to submit to an impartial medical examination and allowed his attorney's request to attend, if permitted by the doctor. The husband, however, failed to appear at either of the scheduled examinations.

On August 29, 1986, the wife filed a motion to dismiss the petition for dissolution of marriage pursuant to Supreme Court Rule 219. On September 17, 1986, the court directed the parties to reschedule both examinations, but again the husband failed to appear. On October 21, 1986, the court heard argument on the wife's motion to dismiss pursuant to Supreme Court Rule 219 for failure of the husband to submit to the court-ordered mental examinations. At the hearing the husband argued that the order requiring him to submit to a mental examination failed to comply with Supreme Court Rule 215 in that it failed to limit the examination as to scope or time. At the Conclusion of oral argument the court granted the wife's motion to dismiss the dissolution action, and the husband has appealed.

The essential question we must resolve is whether the trial court erred when it dismissed the husband's petition for dissolution of marriage for failure to comply with Supreme Court Rule 215. He argues that the dismissal was not warranted as the trial court abused its discretion in the first instance when it ordered a mental examination pursuant to Supreme Court Rule 215, as the wife failed to satisfy that rule's "condition in controversy" and "good cause" requirements.

Supreme Court Rule 215(a) provides, in pertinent part, "[in] any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician." 87 Ill. 2d R. 215(a).

Rule 215 is a rule of discovery, the purpose of which is to permit the discovery of facts which will assist the trier of fact to reach a correct determination of the issues before it. This rule does not permit unlimited and indiscriminate mental and physical examination of persons, but, by its terms, gives a trial court the discretion to order such examinations only when certain requirements are met. The person sought to be examined must be a party (or a person in his custody or legal control). The physical or mental condition of that person must be in controversy, and good cause must be shown for the examination. Then, and only then, is the discovery of that person's physical or mental condition authorized by this rule. In re Conservatorship of Stevenson (1970), 44 Ill. 2d 525, 529, 256 N.E.2d 766, cert. denied (1970), 400 U.S. 850, 27 L. Ed. 2d 87, 91 S. Ct. 50.

The need for careful application of the "in controversy" and "good cause" limitations of the rule is evident in a case of this type where the person sought to be examined has not raised the issue of his physical or mental condition. (Schlagenhauf v. Holder (1964), 379 U.S. 104, 119, 13 L. Ed. 2d 152, 164, 85 S. Ct. 234, 243.) In Schlagenhauf, the Supreme Court interpreted its Rule 35, which is substantially identical to our Rule 215, and noted that the "in controversy" and "good cause" requirements of Rule 35 ...


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