NOTICE 2016 IL App (5th) 150242 NOTICE Decision filed 03/23/16. The This order was filed under text of this decision may be NO. 5-15-0242 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re MARRIAGE OF ) Appeal from the ) Circuit Court of JENGER DENOSKY, ) Franklin County. ) Petitioner-Appellant, ) ) and ) No. 14-D-80 ) JOHN DENOSKY, ) Honorable ) Thomas J. Dinn III, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.
OPINION
¶1 The petitioner, Jenger Denosky (Jenger), appeals the May 18, 2015, final order of
the circuit court of Franklin County granting a judgment dissolving her marriage to the
respondent, John Denosky (John). Jenger argues that the trial court abused its discretion
when: (1) it failed to award her primary residential custody of the parties' three minor
children, thereby failing to allow the minor children to attend school in the district where
Jenger resides; (2) it awarded an equal time, week-to-week parenting schedule between
the parties; (3) it denied Jenger's request to remove the minor children to her home state
1 of Louisiana; (4) it failed to award Jenger child support from John; and (5) it allowed the
paternal grandmother to testify as an expert witness and give undisclosed opinions
regarding the minor children. As we agree that the trial court abused its discretion by
allowing the paternal grandmother to testify as an expert witness, we reverse and remand
for a new trial allowing Jenger the opportunity to respond to John's expert witness
testimony.
¶2 We set forth only the facts pertinent to our decision in this appeal. Jenger filed a
petition for dissolution of marriage on May 5, 2014, and a petition for temporary relief on
May 27, 2014. A settlement conference was set for August 7, 2014, at which time Jenger
and her attorney were present but John and his attorney failed to appear. The court
conducted a telephone conference and thereafter waived any further settlement
conference. An all-day second-stage hearing was set for October 8, 2014. However,
when the parties and attorneys appeared on October 8, John's attorney moved to continue
the trial date, having thought the case was set for settlement conference and was therefore
not prepared for trial. The court denied Jenger's request to have a hearing on her motion
for temporary relief at that time. Trial was rescheduled for November 5, 2014. On
October 30, 2014, the trial date was vacated, and trial was again rescheduled and held on
January 22, 26, and 28, 2015.
¶3 In regards to the parties' requests for discovery, Jenger's attorney filed a certificate
of service on July 17, 2014, confirming that interrogatories and requests to produce were
provided to John. John's attorney filed his certificate confirming service of the same to
Jenger on July 24, 2014. Jenger and John filed answers to each other's interrogatories 2 and requests to produce on September 8, 2014, and October 22, 2014, respectively. After
a notice filed on October 17, 2014, on October 22, Jenger's deposition was taken at John's
attorney's office. Jenger did not depose John or any of his witnesses.
¶4 The following relevant testimony was adduced at the trial. Jenger and John were
married in August 2005 in Louisiana and have three children: S.D., age six; N.D., age
four; and E.D., age three at the time of trial. Both S.D. and N.D. were born in Nashville,
Tennessee, where the parties lived for five years. During the marriage, Jenger was
primarily a homemaker, though she sporadically held jobs; John worked as an audio
engineer and producer in the music business. Neither party had full-time or consistent
employment, and they struggled to support themselves financially. To save money, the
parties moved to John's parents' home in Royalton, Illinois, in 2010; they separated in
May of 2014.
¶5 The parties' oldest son, S.D., attends kindergarten at Zeigler-Royalton, and N.D.
attends prekindergarten (pre-k) through Headstart. S.D. and N.D. receive speech services
at school through an individualized education program (IEP), a document in which the
school system and the special education district outline goals and services for an
individual child. Jenger testified that she is aware that both S.D. and N.D. have had
developmental delays and communication difficulties. She agreed that the children
should be receiving services for areas in which they are exhibiting deficiencies, that they
are benefiting from those services, and that the therapists have told her S.D. and N.D. are
meeting all their goals. She stated that neither S.D. nor N.D. has been medically
diagnosed with a learning disability or autism, and that no medical professional has 3 suggested that S.D. or N.D. undergo an autism evaluation. She testified that S.D. has
experienced night terrors since he was approximately one year old, but that he had not
experienced any in her home since the separation. She agreed that the boys have some
bedtime behavioral issues, but did not consider those behaviors to be out of the norm for
having a house of three young boys.
¶6 Marcy Glover, the owner of Busy Bee Daycare where the children attended
daycare from May 2012 to March 2014, testified that the children received therapy
services from the State of Illinois Early Intervention program at her facility. She testified
that S.D. had a difficult time adjusting, and that transitions were very difficult for him.
She also noted that there was a time where he would scratch or hurt himself. Glover
testified that the staff at Busy Bee worked with the parents on ways to assist S.D. by
letting him know what is expected of him in a step-by-step format. Glover noted that
S.D. adjusted over time, but that some of his behaviors were outside Busy Bee's realm of
expertise. She agreed that N.D. exhibited similar behavior in that transitions were
difficult for him.
¶7 Bethany Dwyer testified that she works for the Franklin-Jefferson Special
Education District and sees S.D. and N.D. for speech therapy. She testified that N.D. was
referred for services at the end of his 2012-2013 pre-k year, as he was struggling with
"naming items and identifying body parts, things like that." She testified that N.D.'s
parents had reported that he had a lot of meltdowns at home because he struggled to tell
them what he needed. N.D. received speech and language services beginning with the
2013-2014 school year, and Dwyer felt he made great progress; while he still had some 4 meltdowns at school when things did not go his way, he has not had these behavior issues
at school during the 2014-2015 school year. She also testified regarding his improvement
in his "preservative behaviors," which she described as "things that interfere with the day-
to-day routine [of a child]." She gave as an example the typically recurring noises in a
school environment, noting, "The bell rings so many times during a day, and every time
the bell would ring he would say, What's that, Ms. Beth? What is that? And he couldn't
move on from that until we had a discussion about it." Dwyer testified N.D. is showing
great progress with these behaviors as well. She testified that she works with N.D. twice
a week for 25 minutes, and would remain working with him if he needed to continue
services in the school district.
¶8 Dwyer testified that S.D. was evaluated for an IEP in the summer of 2013. She
explained to the court that an IEP is a legally binding document formed under federal law
and is in the same format in every state. It is developed after testing a child for particular
needs and follows that child to any school in the United States; it covers anything outside
of the day-to-day routine of school classroom. Dwyer stated that she began working with
S.D. during the 2013 school year, visiting three times per week for 20 minutes at a time.
They worked on sorting vocabulary and how to "use words to describe [facial
expressions] and understanding what they mean in context and non-verbal
communication." She testified that she has worked with S.D. for two years, that S.D. is
comfortable with her, and that he is demonstrating progress with his communication
skills, particularly at being able to relay personal stories. Dwyer did not do any of the
testing for S.D.'s initial IEP, but noted that it included "some rating scales [that] were 5 done by the teachers at his pre-k that suggested things consistent with maybe autism."
She agreed that to her knowledge, no medical professional has recommended an autism
evaluation, and that both S.D. and N.D. are in regular education classrooms and doing
well in them.
¶9 Mary Ekstrand, a school psychologist with Franklin Special Education, testified
that a child receives an IEP after a team evaluation regarding the child's eligibility.
Ekstrand, along with a social worker and speech therapist, assessed S.D. for his IEP. She
stated that she believed that S.D.'s parents requested the testing. Ekstrand testified that a
"grid meeting" is traditionally held that includes the parents and teachers; this is where
the decision is made whether or not to test a child for special services needs. The grid
reveals areas of suspected delays, and Ekstrand's responsibilities include reading through
the grid and conducting the child's evaluation. A grid meeting for S.D. was held on April
23, 2013, and S.D.'s grid included suspected developmental delay and suspected autism
spectrum disorder.
¶ 10 Ekstrand described her process for evaluating S.D. She testified that she normally
begins by asking primary caregivers, such as parents and teachers, to complete
questionnaires, and by observing the child in a natural setting. She stated that she
observed S.D. at Busy Bee in his classroom and on the playground. She noted that his
interactions with others were minimal and he seemed "prompt dependent," that is, he
needed to be told each step to take during a common daily routine. She also tested S.D.'s
cognitive function, noting that "rote skills," such as naming colors, shapes, or sizes, were
well developed, but that his time/sequence concepts, such as directions and positions, 6 were significantly delayed. She also had S.D.'s teachers complete a Gilliam Autism
Rating Scale, a behavior rating scale that measures the extent to which a child is
exhibiting the characteristics of autism. Ekstrand testified that the teachers' responses
indicated a high probability of S.D. having autism, as he was exhibiting atypical
behaviors such as self-injury, communication delays, and difficulties with social
interactions. Ekstrand concluded that S.D. met the criteria for developmental delay and
recommended that S.D. receive special education services through an IEP. She also
testified that not long after S.D. began his IEP, she spoke to S.D.'s parents about S.D.
participating in the PEAK program, which is an assessment and treatment program for
autism and related disorders that addresses a child's motor skills, academics, and social
and communication skills. She noted that S.D.'s parents seemed receptive to the idea.
¶ 11 Ekstrand agreed that she worked only on S.D.'s initial IEP, but after reviewing his
current IEP, it appears that he has made significant improvements; under his current IEP,
S.D. is receiving only speech therapy and five minutes of behavior monitoring. Ekstrand
also agreed that a child may express some symptoms that fall on the autism spectrum
scale and not have autism, and that though autism is one of the categories of eligibility
for an IEP, it is not the category of eligibility for which S.D. is receiving his services.
¶ 12 Cheryl Denoksy, John's mother, testified that she is retired from a position as a
reading specialist with the Benton school district. She noted that she began to notice
developmental issues with S.D. when he was beginning to babble and talk, around one
year old; it was a "red flag" that he did not appear to respond to his name like most
children do. She also noted her concern regarding S.D.'s tantrums and night disturbances, 7 and around the two-year mark, S.D. liked to have order and would be distraught if his
arrangement of his toys was disturbed. Cheryl testified that she shared her concerns with
Jenger and John when S.D. was around one year old. She noticed similar issues with
N.D. also around one year old, such as lack of language development and responsiveness
to his name. She raised her concerns with Jenger and John when N.D. was somewhere
between one and two years old. She recommended that N.D. be screened for delays, and
suggested activities that would be useful to "pull out the language." She suggested to
John and Jenger that having routines and consistency would head off tantrums and
frustration, and noted that after being implemented, the routines appeared to help. She
testified that she helped John and Jenger make the decision to send the children to Busy
Bee because of her connections in the community.
¶ 13 Cheryl testified that she was at the IEP meeting where the concern was raised that
S.D. may be autistic. When asked if she was familiar with autism in children, Jenger's
attorney objected to the use of the witness as an expert. The court stated that the witness
could testify to her experience, but foundation would need to be laid for her to disclose
opinion testimony. John's attorney noted that the witness was disclosed as an expert, and
the following exchange occurred:
"[Jenger's attorney]: Your Honor, less than 24 hours before the hearing
[John's attorney] supplemented and said she was going to use [Cheryl Denosky] as
an expert. It was not disclosed any time prior in the original answers to
interrogatories that she would be attempting to use the grandmother of the children
as an expert witness in this matter. 8 THE COURT: I think the fact that she's the grandmother really, you know,
goes towards to the weight that I would give it, but if she is an expert and she's
tendered as an expert and you qualify her as one–but you haven't done that yet. So
you can't just jump to the end and ask her opinions.
[John's attorney]: At this point, Judge, I know I disclosed her as an opinion
[sic]. I'm just trying to get the facts of what she witnessed, and that's really all I'm
using her for. ***
THE COURT: Okay. Well, the form of your questions lend themselves to
giving an opinion answer ***."
¶ 14 Several more exchanges like this took place. Cheryl testified that she believed that
the children have progressed but that they still have language deficits. She noted that
S.D. has made significant progress but continues to have difficulties with social
interactions and with following directions. She indicated that changes bother S.D., but he
does much better if he is prepped well ahead of time. When asked about "complex
language patterns that are typical for [S.D.'s] age level," Jenger's attorney objected to
Cheryl's testimony regarding professional observations without any foundation laid, and
again objected when Cheryl testified about age-appropriate behavior. Upon the court
noting that "every time [Jenger's attorney objects] I'm going to sustain it because she's
right [that Cheryl has not been qualified as an expert]," John's attorney agreed to qualify
her as an expert. Jenger's attorney then objected for the record that because Cheryl was
only disclosed as a potential expert or opinion witness upon the eve of trial and her
curriculum vitae (CV) was only provided on the eve of trial, such insufficient notice 9 should preclude Cheryl's expert testimony when Jenger did not have time to depose
Cheryl or procure an expert witness of her own. John's attorney responded that while
Cheryl was not initially categorized as a witness who would be giving expert opinions
back in October, John did provide Cheryl's CV and that she would be a fact witness in
their initial responses to discovery. The court overruled the objection and, after a
foundation was laid, recognized Cheryl as an expert in education and in the formation
and implementation of IEPs. Jenger's attorney renewed her objection that the failure to
disclose the witness as a potential expert should bar her opinions from being admissible
¶ 15 Jenger's attorney again objected when Cheryl was allowed to testify regarding the
autism spectrum disorder, as it is a medical diagnosis that S.D. has not been given as
noted by numerous witnesses. Cheryl explained that it is a specific diagnosis where a
child is determined to have one of five or possibly six different specific disorders, with
variations within those categories. She testified that while S.D. has not been conclusively
found to have autism spectrum disorder, he has received services related to the
assessment and treatment for autism and related disorders through the PEAK program.
She testified that S.D. attended PEAK during pre-k, and that he advanced more rapidly
than they expected for his age level so that "[n]ot to say it wouldn't be needed in the
future for those advanced skills" but that it was no longer needed at that time; however,
S.D. continued with language therapy for his communication skills. Cheryl testified that
S.D. continues to have behavioral issues, such as frustration to the point of violently
acting out when he fails to get his message across or understand directions and 10 conversations. She testified that based on her experience and education, she believed that
S.D.'s communication issues are not just that of a child with a language delay but more
fundamental. Cheryl opined, again over objection, that regression of academic or
behavior skills is a possible future issue with S.D. and that regression can occur with
children who receive similar services to S.D. who change school districts. When asked
if, in her opinion, any other issues exist with S.D., she noted her concerns about S.D.'s
social interactions and sensory issues. She testified that based on her experience, it is
possible for children with IEPs such as S.D.'s to have underlying problems that would not
be reflected by his written grade in a classroom.
¶ 16 Cheryl testified that she noticed language and communication issues with N.D.
when he started pre-k, as well as some coordination, fine motor, and gross motor issues,
although she agreed that N.D.'s last evaluation terminated his occupational therapy. She
stated that she has also noticed that N.D. struggles with perseverance in his tasks, in that
he dislikes being pulled away from an activity until he is satisfied with the fascination of
that activity. She opined that he exhibited atypical negative behaviors when unexpected
changes occur in his daily routine. She testified that N.D. gets frustrated when he cannot
do something and throws 30-minute tantrums; during the last three months, she has seen
the children exhibit an average of three tantrums per day, of varying degrees, when they
are in John's care, though she acknowledged that she sees them perhaps four or five days
out of the week. She also observed that N.D. is afraid of loud noises and is immediately
alarmed if he is exposed to them. She agreed that N.D. has an IEP, and in her experience,
she has seen regression when children with similar IEPs transition from one school 11 district to another, though she agreed that teachers are trained to combat that regression.
She noted that there is a difference in the regression seen in a typical child returning from
summer break and the regression seen in a child with significant behavioral deficits
because the lack of continual therapy means that "even if *** progress is being made, the
time, it has to be accelerated so much more to catch[ ]up to where he would have been
without the tantruming and the disruptions." Cheryl testified that she believed that both
S.D. and N.D. have improved over the two-year period but still have significant issues,
and neither child handles change and transitions well.
¶ 17 In its judgment of dissolution of marriage, the trial court found that "[t]he over-
riding concern of the Court across the issues of custody, designation of primary
residence, and removal is the effect such changes will have on [S.D.] and [N.D.] given
their developmental issues and the progress that they have made in their current setting."
The court noted that both children have exhibited behaviors suggestive of autism, yet at
trial, Jenger "took every opportunity to point out that neither child has been diagnosed
with autism. Be that as it may, the distinction of being diagnosed with autism and
exhibiting 'behaviors very suggestive of the presence of autism' is distinction with little to
no difference." The court noted that Jenger's "persistent efforts to minimize the
significant behavioral and developmental issues plaguing [S.D.] and [N.D.] *** are not
well taken by this Court."
¶ 18 The court found relevant that S.D. and N.D. are in a special education system
designed to address their needs, that the program allows for the same caseworker to
follow and work with them all the way through high school if necessary, and that the 12 witnesses at trial consistently testified that neither child reacts well to changes in routine.
The court noted that though IEPs transfer over districts, the teachers implementing them
do not, and "[m]oving the children from the only environment they have known, one in
which they have progressed, would be too disruptive and not in the best interests of the
children." Jenger appeals.
¶ 19 Though Cheryl was disclosed as a lay witness and her CV was provided to Jenger
well in advance of trial, Jenger argues on appeal that the trial court abused its discretion
when it allowed Cheryl to testify as an expert and give opinion testimony regarding S.D.
and N.D. Specifically, Jenger argues that John violated Illinois discovery rules where he
did not disclose Cheryl as an expert witness until the eve of trial, even though the trial
date had been moved twice in this matter; Jenger therefore had no knowledge of the
opinions that Cheryl would offer and no opportunity to prepare or present her own expert
testimony regarding the same subjects. She maintains that the court's decision to allow
the testimony was against the manifest weight of the evidence.
¶ 20 The Illinois Supreme Court rules on discovery are mandatory rules of procedure
that courts and counsel must follow. Department of Transportation v. Crull, 294 Ill.
App. 3d 531, 537 (1998). Illinois Supreme Court Rule 213 provides that upon a written
interrogatory, a party must furnish the identity of witnesses who will testify at trial, and
whether those witnesses are lay witnesses, independent expert witnesses, or controlled
expert witnesses. Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007). For each independent expert
witness, the party must identify the subjects on which the witness will testify and the
opinions the party expects to elicit; an answer is sufficient if it gives reasonable notice of 13 the testimony, taking into account the limitations on the party's knowledge of the facts
known by and opinions held by the witness. Id. Additionally, Rule 213(i) imposes the
continuing duty to supplement or amend prior responses when new or additional
information becomes known to that party. Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007).
¶ 21 The discovery rules permit litigants to ascertain and rely upon the opinions of
experts relied upon by their adversaries. Crull, 294 Ill. App. 3d at 537. The committee
comments to Rule 213 plainly state that one of the purposes of Rule 213 is to avoid
surprise. Ill. S. Ct. R. 213(g), Committee Comments (June 1, 1995). The committee
comments also state that " 'the subject matter of all opinions must be disclosed *** and
that no new or additional opinions will be allowed unless the interests of justice require
otherwise.' " (Emphasis omitted.) Crull, 294 Ill. App. 3d at 536-37 (quoting Ill. S. Ct. R.
213(g), Committee Comments (June 1, 1995)). It appears from the record and parties'
briefs that Cheryl's status as an expert witness, her professional opinions, and the bases
for those opinions were not disclosed to the opposing party until, at the earliest, "a few
days" before trial. However, as the respondent has admitted his failure to comply with
Rule 213(f) at oral argument, our only consideration on appeal is whether the trial court
abused its discretion by failing to sanction this conduct and admitting the testimony.
¶ 22 It is within the trial court's discretion to determine an appropriate sanction if a
party failed to comply with the discovery rules, and trial judges have the authority to
enter a wide range of orders when a party unreasonably fails to comply. Ill. S. Ct. R.
219(c) (eff. July 1, 2002). Where a party fails to comply with the provisions of Rule 213,
a court should not hesitate sanctioning that party, as Rule 213 demands strict compliance. 14 Warrender v. Millsop, 304 Ill. App. 3d 260, 268 (1999). A trial court's error in regards to
reception of evidence does not require automatic reversal; however, if the appellant can
establish prejudice arising from the error, our court may disturb this judgment on appeal.
Cerveny v. American Family Insurance Co., 255 Ill. App. 3d 399, 416 (1993); Hatch v.
Golden Rule Insurance Co., 204 Ill. App. 3d 790, 795-96 (1990). 1
¶ 23 John maintains that Jenger cannot show surprise or prejudice, as Cheryl testified
as to the advice she gave Jenger and John during the marriage regarding the children's
issues, and John had disclosed Cheryl as a witness and provided her CV to Jenger "well
in advance of trial." He noted that his supplemented answers immediately before the trial
added words to state that Cheryl would testify regarding "that due to children's history of
developmental issues, removing children from IL would be detrimental to children."
John also cites the fact that Jenger did not depose anyone or call any witness to testify on
her behalf regarding the children's delays. We find these arguments without merit.
1 Both of these cases were decided under Illinois Supreme Court Rule 220 (eff.
Oct. 1, 1984), which was replaced by Rule 213. Iser v. Copley Memorial Hospital, 288
Ill. App. 3d 408, 410 (1997). Notably, Rule 213 establishes even more exacting
standards regarding disclosure than did Rule 220, and "[t]rial courts should be more
reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties
to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions
when such deviations occur." Crull, 294 Ill. App. 3d at 538-39.
15 ¶ 24 In regards to surprise, we note that Rule 213 not only has a stated purpose of
preventing an unfair surprise on the opposing party, but also requires strict compliance.
At trial, the opposing party is entitled to rely on these tenets. John's argument that Jenger
should have somehow expected Cheryl to testify as an expert, despite every indication
from him and his counsel that Cheryl would testify as a lay witness up until immediately
preceding the trial, is disingenuous and contrary to our discovery rules. For this same
reason, we do not find relevant that Jenger did not depose any witnesses or call her own
expert witnesses to testify about the children's developmental delays, as up until the
unexpected testimony was revealed, Jenger did not have any reason to do so, and
certainly thereafter did not have time to depose Cheryl before trial began. It is apparent
from the record that Jenger did not fail to be diligent in pretrial procedure, but that any
failure to be prepared to rebut or respond to Cheryl's expert testimony was because John's
late disclosure clearly constituted a surprise to the opposing party.
¶ 25 In regards to the prejudice resulting from the testimony, we again disagree with
John's assertion that Jenger was not prejudiced by the contribution of Cheryl's expert
testimony to the case. As evidenced by the transcript, Cheryl's testimony was longer and
more detailed than that of the speech pathologist (Dwyer) or child psychologist
(Ekstrand). The trial court appeared to place weight on the fact that the boys, who do not
well tolerate changes in routine, would remain with their present caseworkers if they
16 stayed in their current school. 2 The concern about the boys' ability to progress outside
their current environment appears to be largely based on Cheryl's testimony, as she was
the only witness to testify regarding the possibilities of regression if the children were to
be moved to a different school district. In fact, the other witnesses with expertise in the
field, Dwyer and Ekstrand, both testified that the boys are showing progress; S.D. had
moved out of the PEAK program and was only receiving speech therapy at the time of
trial, while N.D. was no longer receiving occupational therapy.
¶ 26 Further, while the court noted that it would take the fact that Cheryl was the
paternal grandmother into consideration when weighing the evidence, it is clear that it
gave her opinions great weight, particularly in regards to her testimony regarding S.D.'s
potential for autism and her opinions on his future developmental issues and diagnoses.
Noting that it found "little to no difference" between behavior suggestive of autism and a
medical diagnosis for autism, the trial court made it clear that it believed that Jenger was
deliberately minimizing the significance of her children's delays in order to win her case.
However, we reiterate that Jenger was not afforded an opportunity to depose Cheryl or to
find an expert to respond to Cheryl's opinions, and as this court has no medical expertise,
2 While this is true, it does not account for the numerous witnesses who explained
that an IEP follows a child regardless of state or school district, that teachers are trained
to combat student regression, or the fact that even if a student remains in a certain district,
it does not ensure that his or her caseworker will forever retain employment in that school
district.
17 we do not presume to know that a child showing the "red flags" of autism will most
certainly receive the diagnosis and thus require its specialized management in the future.
It appears that the trial court heavily relied on Cheryl's expert testimony when
formulating this opinion, and in turn, this opinion was the basis of its finding that
remaining in their current school system was in the best interest of the children. Upon
consideration, we find that allowing Cheryl to testify as an expert witness proved highly
prejudicial to Jenger's case.
¶ 27 Ultimately, Cheryl's testimony regarding the boys' developmental delays entwined
her expertise in identifying these issues and her opinion on how they would continue to
affect the Denosky children, and, despite John's stated intentions for his mother's
testimony, was clearly not simply the observations of a grandmother who happens to
have knowledge in the field of developmental delays and treatments. The court
recognized this and required that she be established as an expert before allowing her
opinion testimony. However, by allowing Cheryl to testify as to her professional
opinions about her grandsons, Jenger was unfairly surprised and unprepared to respond
with her own expert testimony regarding the impact that changing schools would have on
S.D. and N.D.'s development, which was a strong consideration in the trial court's final
decision. This is a violation of Illinois Supreme Court Rule 213(f) that demands an
appropriate sanction under Rule 219(c). We therefore reverse and remand for a new trial
that would provide Jenger the opportunity, if she so desires, to depose Cheryl as an expert
witness and/or respond with her own expert witnesses.
18 ¶ 28 Reversed and remanded.
19 2016 IL App (5th) 150242
NO. 5-15-0242
IN THE
FIFTH DISTRICT
In re MARRIAGE OF ) Appeal from the ) Circuit Court of JENGER DENOSKY, ) Franklin County. ) Petitioner-Appellant, ) ) and ) No. 14-D-80 ) JOHN DENOSKY, ) Honorable ) Thomas J. Dinn III, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: March 23, 2016 ________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Richard P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur ________________________________________________________________________
Attorney Amanda Byassee Gott, Attorney at Law, 611 North Court Street, for Marion, IL 62959 Appellant ________________________________________________________________________
Attorney Shanna K. Surratt, Layton & Southard, LLC, 1650 North for Kingshighway, Suite 302, Cape Girardeau, MO 63701 Appellee ________________________________________________________________________