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In re Webb

September 06, 2002

IN RE MARRIAGE OF AMY L. WEBB, PETITIONER-APPELLANT, AND PATRICK M. WEBB, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Du Page County. No. 00--D--1424 Honorable John W. Demling, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

Released for publication September 12, 2002.

IN RE MARRIAGE OF AMY L. WEBB, PETITIONER-APPELLANT, AND PATRICK M. WEBB, RESPONDENT-APPELLEE.

Appeal from the Circuit Court of Du Page County. No. 00--D--1424 Honorable John W. Demling, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

PUBLISH

Petitioner, Amy L. Webb (Amy), appeals from a trial court order that assessed expenses against her, pursuant to Supreme Court Rule 219(e) (166 Ill. 2d R. 219(e)), as a condition for granting the voluntary dismissal of her action for dissolution of marriage against respondent, Patrick M. Webb (Patrick). Amy contends that the trial court erred by assessing the expenses under the rule without first determining whether she had engaged in discovery misconduct. For the reasons that follow, we agree with Amy, reverse the order, and remand the cause for further proceedings.

On June 6, 2000, Amy filed a petition for dissolution of marriage against Patrick. On April 23, 2001, prior to trial, Amy filed a petition for the voluntary dismissal of the dissolution action. Along with the dismissal petition, Amy tendered to Patrick a check in the amount of $117 as payment of Patrick's appearance fee. On the same date, Patrick filed a motion seeking leave to file a counterpetition for dissolution of the marriage. Patrick later also filed a motion to strike and dismiss Amy's petition for voluntary dismissal on the ground that, in filing the petition, Amy had not complied with local court rules.

On May 2, 2001, following a hearing on these matters, the trial court entered an order that denied Patrick's motion to strike and dismiss Amy's petition for voluntary dismissal; granted Amy's petition for the voluntary dismissal of the dissolution action without prejudice; pursuant to Rule 219(e), conditioned the dismissal on the payment of reasonable expenses by Amy to Patrick; and set a date for a hearing to determine the amount of the expenses to be assessed against Amy.

On May 8, 2001, the trial court entered an order requiring Amy to pay Patrick $10,625 in expenses on or before May 21, 2001. The order also provided that, if Amy did not pay the expenses as ordered, without further notice, the May 2, 2001, order would be vacated and Patrick's motion for leave to file a counterpetition for dissolution of the marriage would be granted. If Amy paid the expenses as ordered, then the dissolution action was dismissed voluntarily. Amy's timely notice of appeal followed.

On appeal, Amy contends that she is entitled to the reversal of the May 8 order. Amy argues that the trial court erred in entering the order without first determining whether she engaged in discovery misconduct (the discovery misconduct issue).

Patrick initially responds by arguing that we should not consider the merits of the discovery misconduct issue because Amy failed to raise the issue in the trial court and it is therefore waived (the waiver argument). In addition, Patrick has filed a motion in this court to strike the first three paragraphs of Amy's appellate reply brief. Those three paragraphs constitute Amy's response to the waiver argument. In those paragraphs, Amy cites various places in the record and asserts that the record at those places shows that she raised the discovery misconduct issue in the trial court. Patrick's motion seeking to strike the paragraphs was ordered taken with the case. Because the motion is directly related to the waiver argument, we will consider the motion and the waiver argument together.

In the waiver argument, Patrick asserts that Amy failed to raise the discovery misconduct issue in the trial court. As a general rule, questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal. In re Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989).

In the first three paragraphs of her reply brief, Amy asserts that the discovery misconduct issue is not waived because her counsel raised the issue on several occasions in the trial court. In support of this assertion, Amy cites several places in the record where, she argues, her counsel raised the discovery misconduct issue. Patrick asserts in the motion to ...


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