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Copeland v. McLean

February 06, 2002


Appeal from Circuit Court of Sangamon County No. 01D329 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht


On July 5, 2001, the trial court entered a judgment of dissolution of the marriage of petitioner Margaret Betty McLean (petitioner) and respondent Charles Robert McLean (respondent). Petitioner, age 71 at the filing of the petition for dissolution, was in the end stages of cancer and sought a divorce from respondent, age 66, prior to her death, claiming mental cruelty as grounds for the dissolution. Finding such grounds after a hearing, the trial court entered the judgment of dissolution but reserved all other issues.

Respondent appeals the finding as to grounds, but also the entry of the dissolution without a disposition of property. Further, respondent appeals the trial court's denial of his motion for an independent medical or mental examination of the petitioner. As to all three issues, we find no error and affirm the trial court's judgment.


Petitioner and respondent were married on May 20, 1977, in Springfield, where they have continuously resided ever since. Both petitioner and respondent had children from previous marriages, and no children were born to the 24-year marriage. In 1982, both petitioner and respondent executed similar wills, each naming the surviving spouse as executor and beneficiary of the majority of each party's estate.

In June 1993, petitioner was diagnosed with endometrial carcinoma and was treated, but she relapsed in October 1996. The carcinoma advanced further, and in August 2000, at the suggestion of her doctors, petitioner entered a hospice program. At all times relevant to this appeal petitioner was under continuous medical care. By the time of the filing of the initial petition for dissolution in April 2001, petitioner had exhausted all chemotherapy options and was terminally ill.

On April 11, 2001, petitioner filed a petition for dissolution of marriage, alleging extreme and repeated mental cruelty by respondent as grounds for dissolution. The same day, petitioner filed a motion for preliminary injunction to restrain respondent from transferring any of the marital assets, the majority of which were held in joint tenancy. Respondent was served with the petition and the motion for preliminary injunction that same day, April 11, 2001.

The following day, April 12, 2001, petitioner filed a motion for final judgment of dissolution, in essence suggesting petitioner's deteriorating health mandated the entry of immediate dissolution. In support of this motion, petitioner alleged she had already exceeded her life expectancy of October 2000 and her life expectancy was unknown. Further, petitioner alleged the majority of the marital assets were held in joint tenancy with respondent, but she wished to "dispose of her just portion of the assets" prior to her death.

On April 12, 2001 the trial court issued a temporary restraining order prohibiting respondent from transferring, withdrawing, or otherwise encumbering the parties' marital assets. The order further authorized petitioner to liquidate $10,000 worth of the parties' illiquid assets and granted petitioner possession of one of the parties' vehicles. The following day the court entered a similar order, directing liquidation of $10,000 worth of the parties' treasury notes.

Respondent countered on April 17, 2001, with a motion to strike the temporary restraining order as being entered without sufficient notice and despite the availability of what respondent alleged were adequate legal remedies. The same day, respondent moved to dismiss the temporary restraining order, the petition for preliminary injunction, the petition for dissolution, and the motion for judgment. The crux of respondent's arguments was as follows: due to the treatments petitioner was receiving, which included morphine, petitioner could not make legal decisions on her own and was being unduly influenced by her children for their financial gain. In short, respondent alleged, petitioner did not "have legal capacity to sue." Petitioner countered these motions on April 19, 2001, by filing a response including affidavits of petitioner's physician and a nurse responsible for petitioner's care. Both stated, despite the medications petitioner was taking, petitioner was alert, oriented, and capable of making decisions.

In the meantime, on April 26, 2001, petitioner executed a new will, making a series of detailed dispositions of her personal property to her two daughters and several of her grandchildren. While the will recited the fact of petitioner's marriage to respondent, a clause in the will stated, "I have intentionally made no provisions in this will for my husband, [respondent], as at the time of this will I am in the process of obtaining a dissolution of marriage from him."

On May 15, 2001, petitioner scheduled an emergency grounds hearing for May 17, 2001. Respondent filed a motion to continue, noting the parties were scheduled to meet with a conciliation counselor on May 24, 2001. The court allowed this motion and set the grounds hearing for June 21, 2001.

But on June 14, 2001, petitioner again filed an emergency motion for a hearing on grounds, stating petitioner's health was declining precipitously, so her life expectancy was not more than several days. Petitioner reiterated her desire to be divorced from respondent prior to her death so she might dispose of her portion of the jointly held marital assets. Petitioner also served notice of an evidence deposition of petitioner to be conducted the same day, June 14, 2001, at 6 p.m. Respondent's counsel received these notices at approximately 4:30 p.m. on June 14, 2001. Respondent's counsel attempted to file a motion to quash, but counsel's attempts to contact the trial court for a hearing on the motion were unsuccessful. The evidence deposition was conducted the same day without respondent or respondent's counsel present.

At the deposition, petitioner was questioned about her desire to be divorced from respondent. Initially, petitioner incorrectly stated the date of her marriage to respondent as September 20, 1979, then stated the date of her marriage was May 20, 1979. Petitioner affirmatively stated her desire to be divorced from respondent, stating he "downgraded her constantly" and shouted expletives at her. According to petitioner, respondent did not want petitioner to have any friends and became angry when she interacted with friends. When asked if respondent had ever told her he hoped she dies, petitioner replied in the affirmative. Further, petitioner stated her belief respondent had not been giving her the proper amount of medicine, which had exacerbated her condition.

The trial court, on June 15, 2001, entered an order commencing a grounds hearing and received the evidence deposition of petitioner taken the previous day. The court then granted respondent's motion to continue the hearing until June 21, 2001. The same day, respondent filed an answer to the petition for dissolution as well as the motion to quash the evidence deposition. On June 20, 2001, respondent issued a subpoena compelling the petitioner's appearance at the grounds hearing on June 21, 2001, the following day.

On June 21, 2001, the day of trial, respondent filed a motion to disclose witnesses, as well as a motion for extension of time to retain an expert witness who would "ascertain [petitioner's] competency to testify." This latter motion, as well as petitioner's motion to quash the subpoena compelling the appearance of petitioner, was taken with the case by the trial court.

The trial then proceeded without petitioner being present. Petitioner's counsel called respondent and questioned him about his behavior toward petitioner. Respondent denied the allegation he had intentionally given petitioner less medicine than prescribed. Respondent further denied had made any disparaging remarks about petitioner or had shouted any expletives at her. Additionally, respondent denied discouraging petitioner from having friends.

Petitioner called several witness to testify as to respondent's mistreatment of petitioner, including petitioner's brother and sister-in-law. All of these witnesses testified respondent cursed at petitioner and acted impatiently around petitioner, expecting her to leave a restaurant when he was ready, without regard to petitioner's readiness. Respondent denied all such testimony, claiming not to have seen several of the witnesses in as much as five years. Respondent called a witness of his own, who ...

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