In re Marriage of Barnett

802 N.E.2d 279, 344 Ill. App. 3d 1150, 280 Ill. Dec. 354, 2003 Ill. App. LEXIS 1525
CourtAppellate Court of Illinois
DecidedDecember 5, 2003
Docket4-02-1073 Rel
StatusPublished
Cited by8 cases

This text of 802 N.E.2d 279 (In re Marriage of Barnett) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Barnett, 802 N.E.2d 279, 344 Ill. App. 3d 1150, 280 Ill. Dec. 354, 2003 Ill. App. LEXIS 1525 (Ill. Ct. App. 2003).

Opinions

JUSTICE COOK

delivered the opinion of the court:

Respondent, Sol Barnett, appeals a judgment of dissolution of marriage entered by the circuit court of Champaign County on September 5, 2002. Respondent argues the trial court erred (1) in barring him from presenting certain evidence as a sanction for refusing to afford discovery and (2) in finding that his transfer of a joint tenancy Fidelity account to petitioner, Phyllis Jane Barnett, constituted a gift, rendering the account petitioner’s nonmarital property. We affirm.

Petitioner and respondent were married April 23, 1988. On February 29, 2000, petitioner filed a petition for dissolution of marriage. Shortly after the petition was filed, petitioner moved to California and respondent moved to North Dakota.

Petitioner filed a request to produce and matrimonial interrogatories on April 5, 2000. Respondent filed a motion for an extension of time, and on June 27, 2000, the trial court entered an agreed order requiring respondent to furnish discovery within 60 days. When that was not done, the court, on January 25, 2001, ordered discovery be furnished within 10 days, warning that failure to do so would result in a default finding being entered, and assessed attorney fees. Respondent delivered a response of sorts on February 5, 2001. Many of respondent’s answers, however, included the phrases “records for 2000 and 2001 are to be provided,” “details are unavailable to respondent at this writing,” “respondent has not been able to access all documents needed to complete this answer,” “respondent’s efforts to complete a list, without access to records, continues,” and “records are not available to me. Records are with accountant, Barb Lichti, petitioner, or in Champaign home.” Lichti, however, stated that she informed respondent numerous times that she did not have the records he sought.

At a hearing on March 19, 2001, respondent’s attorney advised the court that he had supplied petitioner with 15 pounds of discovery response and “I kind of foresee the court having to look through a thousand pages of documents to reconcile this.” The trial court denied respondent’s motion for an extension of time to supplement discovery. At a later pretrial conference, the trial court advised the parties it would make a final ruling on discovery and “I expect both of you to have everything that you want the court to see that day so I can make a call so that we can get on with this case.” On October 2, 2001, the court made its final ruling on discovery. The court stated “I believe ‘details are unavailable at this time’ is in fact an improper answer. It’s a euphemism for saying I am not going to get around to answering your question yet.” Accordingly, the court imposed a sanction, barring respondent from presenting any further evidence relating to financial information, and awarding attorney fees.

Respondent argues the trial court erred in sanctioning him on October 2, 2001, because by that time he was in compliance with petitioner’s discovery requests. An appellate court will not overturn a trial court’s sanction absent an abuse of discretion. See Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 108, 634 N.E.2d 448, 458 (1994). Respondent’s “15 pounds of discovery” response was inadequate. In re Blank, 145 Ill. 2d 534, 549, 585 N.E.2d 105, 112 (1991) (practice of answering interrogatories with vague, general responses and attaching to them 23 pages of unverified, unidentified documents not specifically referred to or described in answer is not an acceptable substitute for answers required by court rule). Failure to comply is unreasonable if it is a “deliberate, contumacious, or unwarranted disregard of the court’s authority.” Blott v. Hanson, 283 Ill. App. 3d 656, 662, 670 N.E.2d 345, 349 (1996). A just sanction is one which, “to the degree possible, insures both discovery and a trial on the merits.” Skimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123, 692 N.E.2d 286, 291 (1998). The purpose of the sanction is to coerce compliance with discovery orders, not to punish the remiss party. In re Marriage of Booher, 313 Ill. App. 3d 356, 359, 728 N.E.2d 1230, 1232 (2000). When it becomes apparent that a party will not afford discovery, however, the trial court must devise some fair method to complete the case.

Applying these factors and principles to the present case, we find the trial court did not abuse its discretion by barring respondent from presenting additional evidence of financial matters. An enormous potential for prejudice lies if financial information is missing due to respondent’s failure to comply with discovery. The court here was forced to make a number of rulings without sufficient financial information. For example, although the court awarded the value of respondent’s medical practice to him, the court was unaware of the value of that asset. Petitioner claimed more than once that she did not know the extent of respondent’s wealth and she believed he was hiding money and transferring money often. From the record it is clear respondent was a wealthy man with various assets and money placed in numerous accounts. The trial court considered the potential for prejudice to respondent and found the potential prejudice to petitioner due to respondent’s concealment of information more compelling. The court imposed a sanction proportionate to the gravity of respondent’s discovery violations.

Respondent was allowed to testify and present additional evidence regarding a disputed $1,551,616.48 Fidelity account No. X53094005. At one time, this account contained respondent’s premarital funds and was a joint account between the parties. In 1995, however, respondent transferred the account solely to petitioner. Respondent testified he transferred the account to petitioner to protect the account from two malpractice actions then pending against him. He anticipated the account would be returned to joint ownership upon his retirement in November 1999. Respondent admitted he understood when he transferred the account into petitioner’s name that it was no longer a joint account and that he did not have any ownership interest in it. Petitioner testified respondent gave her the account as a gift because “he’s substantially older than me; and he wanted me to feel secure” and “at that time he cared about me.” Respondent argued, however, that petitioner did not claim the account as her nonmarital property in her response to his interrogatories and first did so in her supplemental pretrial memorandum.

The trial court found that respondent made a gift of the account to petitioner and that the account was petitioner’s nonmarital property. In doing so, the court stated “on my assessment of the credibility of the witnesses, I believed more likely her version of the events and determined that amount, that fund to be nonmarital property, so I awarded it to her.”

The Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) specifically provides that “non[ ]marital property transferred into some form of co-ownership between the spouses” is presumed to be marital property.

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Cite This Page — Counsel Stack

Bluebook (online)
802 N.E.2d 279, 344 Ill. App. 3d 1150, 280 Ill. Dec. 354, 2003 Ill. App. LEXIS 1525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-barnett-illappct-2003.