In re Keegan

225 N.E.3d 613

2022 IL App (2d) 190495

IN RE MARRIAGE OF Colleen A. KEEGAN, Petitioner-Appellant,

and

Jon C. PAPIN, Respondent-Appellee.

No. 2-19-0495

Appellate Court of Illinois, Second District.

Filed December 29, 2022

Appeal from the Circuit Court of Du Page County. No. 14-D-565, Honorable Robert E. Douglas, Judge, Presiding.

Edwin R. McCullough, of Chicago, for appellant.

Randy K. Johnson, of West Dundee, and Barry G. Bollinger, of The Vrdolyak Law Group, LLC, of Chicago, for appellee.

OPINION

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 On December 19, 2018, after a bench trial, the trial court entered judgment dissolving the marriage between petitioner, Colleen A. Keegan, and respondent, Jon C. Papin. On January 25, 2019, the court issued a written memorandum, resolving outstanding issues and denying petitioner maintenance. Petitioner appeals, arguing that the trial court erred when it (1) granted respondent’s motions to bar evidence pertaining to petitioner’s alleged medical condition, (2) ordered her to not speak with her attorney about her testimony during trial recesses, and (3) denied her maintenance. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The parties were married on February 11, 1989. Three children were born to the marriage, although all are now emancipated. Petitioner filed her petition for dissolution of marriage on March 21, 2014. Petitioner, age 61 at the time of dissolution, is a physician. Respondent, age 62 at the time of dissolution, is an attorney. Both are licensed to practice in Illinois.

¶ 4 A. Respondent’s Motions to Bar Medical Evidence

¶ 5 1. First Motion to Bar Medical Evidence

¶ 6 Two years after petitioner filed her dissolution petition, on August 31, 2016, respondent moved to bar petitioner from raising at trial claims or defenses related to any of her alleged medical conditions. Respondent recounted in the motion his efforts to obtain from petitioner various medical information. Specifically, he noted that, during discovery, in response to interrogatories, petitioner had asserted that she suffered from neurological problems, namely back and neck injuries, that inhibited her ability to work. She alleged that it was unknown when the conditions would resolve. Accordingly, in October 2014, respondent requested that petitioner produce any documents pertaining to "any aspect" of the litigation, but petitioner did not produce any medical records. Respondent’s counsel had scheduled petitioner’s deposition for November 18, 2015; however, petitioner’s counsel cancelled the deposition, asserting that petitioner could not appear on that date. According to the motion to bar, respondent’s counsel tried numerous times via email and telephone to reschedule petitioner’s deposition, to no avail.

¶ 7 Thereafter, the motion to bar recounted, respondent had moved the court to compel petitioner’s deposition, and the court granted the motion. Specifically, the court appointed a physician to conduct an examination of petitioner, pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) (which provides that a court may order a physical examination of a party if his or her physical condition is in controversy). Further, the court ordered both parties to sit for their depositions on December 21, 2015, starting at 10 a.m. Accordingly, respondent served upon petitioner an amended notice of deposition for December 21, 2015. The notice also requested production of documents supporting petitioner’s claim of medical impairment, including any that she intended to use or admit at trial. Petitioner did not sit for the deposition on December 21, 2015, or produce any documents.

¶ 8 According to the motion to bar, petitioner had successfully moved to continue trial by alleging that she had been ill and required medical treatment. Thus, trial had been continued and the close of discovery extended until July 11, 2016. Accordingly, on June 3, 2016, respondent had requested that petitioner execute medical releases for every physician or medical professional she had seen with respect to her alleged neurological issues or any other alleged disability, such that pertinent records could be disclosed to the Rule 215 evaluating physician and respondent’s counsel. The motion to bar noted that, on June 7, 2016, respondent had also moved to compel petitioner’s production of medical documentation and medical releases.

¶ 9 On June 15, 2016, the court heard respondent’s motion to compel. Although no transcript of the hearing appears in the report of proceedings, respondent’s motion to bar recounted that petitioner’s counsel had informed the court that petitioner had not submitted to a Rule 215 evaluation, because she was "kind of hoping that it went away." Because it had not gone away, counsel represented, petitioner would schedule the appointment. Further, according to the. motion to bar, petitioner’s counsel had stated that he was not certain that petitioner needed to sign the requested medical releases or that respondent was entitled to the records because they contained privileged information; whether petitioner had waived the privilege, he opined, was another issue. The court disagreed and noted that petitioner had put her medical condition at issue by alleging that she had a condition that prevented her from working. The motion to bar further recounted that the court informed petitioner’s counsel that, "if you don’t waive the privilege, I guess then when we get to [trial] I’m going to say you don’t get to put on information. If you haven’t released the records about it and they can’t get the records, then you can’t put the issue on." In addition, according to the motion, the court had noted to petitioner’s counsel that, before tendering to respondent an affidavit of completeness, "you run at your own peril on that. If there’s something that you haven’t given them that comes up at the trial, then you know, I may bar testimony on that or do other things***." Further, the court ordered petitioner to schedule her Rule 215 examination within 14 days.

¶ 10 Apparently, in late June 2016, the Rule 215 examining physician requested certain medical records from petitioner. As of August 31, 2016 (two weeks before trial commenced), and despite additional requests from respondent’s attorney, petitioner had not (1) provided any medical releases or medical records, (2) appeared for the Rule 215 examination, or (3) sat for a discovery deposition. According to respondent, petitioner had, however, on July 11, 2016, only two months before trial, disclosed four medical doctors she wished to call as witnesses at trial concerning her state of health, limitations on her ability to work, and their "treatment," "diagnosis,’’ and "prognosis" of petitioner’s conditions, again with no records ever disclosed relative to any of the doctors and in violation of requirements in Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). (concerning written interrogatories and the identity and testimony of Witnesses). Respondent argued that petitioner claimed to suffer from medical issues inhibiting her ability to work and earn income and, thus, required maintenance, but she had evaded producing any documentation or other evidence to support her claims. Accordingly, pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) (consequences for failure to comply with court order or discovery rules), respondent asked the court to bar petitioner and her witnesses from making any claims or defenses at trial relating to any alleged medical condition.

¶ 11 No written response to the motion to bar appears in the record, nor is there a transcript from when the court heard argument on the motion as part of the pretrial conference. On September 6, 2016, the court granted the motion, ordering that petitioner was barred at trial from introducing medical records and from testifying as her own medical expert, although she was permitted to testify as a lay witness.

¶ 12 2. Second Motion to Bar Medical Evidence

¶ 13 The court held a bench trial over 10 days: (1) September 12, 2016, through September 16, 2016, (2) January 3,. 2017, and (3) May 22, 2017, through May 25, 2017.

¶ 14 On December 8, 2016, after petitioner had commenced testifying at trial, respondent filed a second motion to bar petitioner from testifying about her alleged medical condition and to strike the testimony that she had already given on that topic. The motion alleged facts similar to those proffered in the first motion to bar. However, respondent further noted that petitioner had previously, on December 18, 2015 (a Friday), cancelled her court-ordered December 21, 2015 (a Monday), deposition on the basis that she had experienced a medical emergency and testing was scheduled for December 21, 2015. Respondent asserted that he had recently acquired evidence that cast doubts on the validity of petitioner’s purported medical emergency and testing—namely, that petitioner had spent that December weekend in a hotel in downtown Chicago, visiting the theatre, shopping, and going out to eat with her daughters. Respondent alleged that petitioner’s actions refuted her claims of a medical emergency, she was apparently physically able to sit for the court-ordered deposition on December 21, 2015, and her cancellation was in bad faith. Respondent noted that, when he filed his first motion to bar, he did not have in his possession some of the documentary evidence to establish petitioner’s activities on the weekend in question. Moreover, he continued, because she had never produced any medical records, he had neither a reason nor the ability to confirm or disprove that she had the medical emergency on December 18, 2015, or testing on December 21, 2015. Relying on In re Marriage of Daebel, 404 Ill. App. 3d 473, 343 Ill.Dec. 903, 935 N.E.2d 1131 (2010), respondent argued that the appropriate remedy was to strike petitioner’s trial testimony and bar additional testimony....