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In Re Marriage of Rosemarie A'hearn v. Michael A'hearn

March 21, 2011

IN RE MARRIAGE OF ROSEMARIE A'HEARN, PETITIONER-APPELLEE,
v.
MICHAEL A'HEARN,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Honorable Dinah J. Archambeault, Judge, Presiding. No. 05--D--884

The opinion of the court was delivered by: Justice Holdridge

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 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 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 (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 ...


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