2022 IL App (1st) 210201-U FIRST DISTRICT, FIRST DIVISION August 29, 2022
No. 1-21-0201
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
IN RE MARRIAGE OF: ) Appeal from the ) Circuit Court of AMY HANSON STOLL, ) Cook County, Illinois. ) Petitioner-Appellee, ) No. 20 D 230309 v. ) ) Honorable ANDREW STOLL, ) Debra Walker, ) Judge Presiding. Respondent-Appellant. ) _____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: (1) In dissolution of marriage proceeding, respondent’s mental health records were not discoverable because neither the respondent nor any witness on his behalf testified regarding those records. (2) Respondent’s remaining medical health records were discoverable pursuant to an exception to the physician-patient privilege for litigation in which a patient’s physical or mental condition is at issue.
¶2 Petitioner Amy Stoll filed for dissolution of marriage against respondent Andrew Stoll.
Amy moved to restrict Andrew’s parenting time based on allegations of drug use and mental
health issues. The trial court ordered disclosure of Andrew’s mental and medical health records No. 1-21-0201
and, following Andrew’s failure to comply, placed him in “friendly” civil contempt. Andrew
appealed pursuant to Rule 304(b)(5) (Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (allowing
interlocutory appeals from contempt orders imposing a monetary penalty)), arguing that the
confidentiality of his records is protected from disclosure by both the therapist-patient privilege
and the physician-patient privilege. We affirm in part, reverse in part, and vacate the contempt
order.
¶3 BACKGROUND
¶4 Amy and Andrew were married in 2010. They have three children of the marriage: twins
born in 2012 and a son born in 2019.
¶5 On August 13, 2020, Amy filed for dissolution of marriage. On October 26, 2020, she
asked the court to appoint a guardian ad litem (GAL) to represent the best interests of the minor
children in resolving various issues, including the determination of parenting time and allocation
of parental responsibilities. Amy alleged that on January 27, 2020, Andrew told her there were
“ghosts in the house” who were “throwing stuff in [his] eyes,” and he spent most of the day in
the bathroom attempting to “steam them out.” Amy believed he was experiencing drug-induced
hallucinations. Andrew’s mother, Christine Stoll, brought him to Evanston Hospital. Amy
believes he was transferred to the inpatient behavioral unit of St. Joseph’s Hospital the next day,
where he was treated for “what Amy believes to be stabilization of his mental health issues from
taking amphetamines or recreational drugs.”
¶6 Upon being released from the hospital on February 2, Andrew did not move back into the
marital home. From February through April, he had “little communication with Amy or the
children.” On July 26, Andrew told Amy he was moving to “another Airbnb” and would text her
about spending time with the children. On July 29, Andrew called and told Amy “he did not
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know where he had been for the past three days—all he knew was that he woke up in the
Emergency Room due to dehydration.” Amy believes Andrew was hospitalized for a “similar
episode to that in January.”
¶7 On November 13, 2020, Andrew filed an “Emergency Motion to Set Parenting Schedule
Instanter” alleging that Amy was refusing to allow parenting time and willfully withholding the
children from him. The parties had been operating under an informal agreement to allow Andrew
“some” parenting time pending attending mediation. After completing mediation, Amy withdrew
from the informal agreement and told Andrew he “will not see [her] children again until a court
orders her to.” (Internal quotation marks omitted.) Andrew’s motion requested the imposition of
a “reasonable” parenting schedule that “works up to an equal, 50/50 schedule.”
¶8 Amy filed a “Counter-Emergency Motion for Supervised Parenting Time” alleging
“serious concerns regarding Andrew’s fitness to have unsupervised let alone overnight parenting
time with the children.” She alleged that Andrew “refuses any aftercare treatment since his 5 day
mandatory hold mental health hospitalization” and that “Andrew’s behavior has become
increasingly concerning and erratic.” For example, he left her “bizarre voicemails” and would
sometimes “talk very aggressively and rapidly sometimes not making any sense.” On June 12 he
visited the marital residence, called Amy “crazy” and a “psycho” in front of the children, refused
to leave, and “became extremely combative,” thus “forc[ing]” Amy to call the police. Amy
claimed Andrew’s actions endangered the children and asked the court to order supervised
parenting time pending the appointment of a GAL.
¶9 On November 20, 2020, the trial court appointed Jean Conde as the GAL, ordered that
Andrew’s mother supervise his parenting time until further order of court, and set a January 7,
2021 hearing date on Andrew and Amy’s cross-motions.
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¶ 10 On November 23, 2020, Amy requested disclosure of “[a]ll mental health or medical
reports or evaluations known to or obtainable by [Andrew] relating to the parties’ or their
child(ren) prepared by any health care provider, psychiatrist or a mental health professional.”
Andrew objected to disclosure, relying on the “doctor-patient privilege, the Health Insurance
Portability and Accountability Act, and/or the Illinois Mental Health and Developmental
Disabilities Act.” Andrew also refused to disclose his mental and medical health records to the
GAL.
¶ 11 On January 5, 2021, two days before the scheduled hearing, Andrew tendered “what
purported to be a voluntary ten-panel hair follicle drug test” completed on December 31, 2020.
He intended to introduce the results of the test at the hearing to show he had tested negative for
10 different drugs. Amy filed an emergency motion to continue the hearing “to a future date after
Andrew has produced any and all mental and medical health records” requested in discovery and
“complied with the guardian ad litem’s request for medical or mental health records.” She argued
that Andrew “cannot use the information related to his medical and mental health and drug use as
both a sword and a shield. Andrew needs to produce all information and not just the ones he
believes helps his case.” In the alternative, Amy requested that Andrew be barred from offering
evidence and testimony related to drug testing at the hearing.
¶ 12 The trial court denied the continuance. At the January 7 hearing, the GAL advised the
court that Andrew told her that he “crashed or had a nervous breakdown” in January and was
transferred to St. Joseph’s Hospital because Evanston could not accommodate his C-Pap
machine. The GAL also spoke to Andrew’s mother, a retired physician, who “could not put her
finger on exactly what happened” but suggested it “could *** have been sleep deprivation.”
Regarding the July incident, Andrew claimed he was hospitalized because he passed out while
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running due to dehydration. The GAL acknowledged that Amy had a different version of events,
but due to Andrew’s refusal to disclose his medical records, “I can’t evaluate what happened and
I can’t evaluate how to prevent it. Perhaps nothing else will happen.” She stated that Andrew was
a loving and involved parent and, prior to the parties’ separation, would sometimes stay home
with the children while Amy traveled for work.
¶ 13 The GAL also indicated that Andrew’s drug test was “from a lab that [the courts]
frequently use” and which “goes back six months usually.” The court agreed with the GAL that
“[t]his really just comes down to whether or not Dad has some mental health issues that are
impacting his ability to properly parent his kids,” expressing concern that he might have another
“crash” while the children were in his care “that could endanger them if *** there wasn’t another
adult present.”
¶ 14 Amy’s counsel argued that Andrew had waived confidentiality of his health records, and
the trial court asked the parties to address that issue. Amy’s counsel argued that Andrew put his
health at issue at the prior hearing on November 20, 2020:
“[W]e discussed *** those two incidents of hospitalization and [Andrew’s
counsel] gave explanations for what happened. *** [T]hey alleged the first one was, you
know, a mental break. The second one they said was dehydration. So they put it out there.
And in fact, you found[] that [Andrew’s counsel] was arguing very, very much for her
client and very effectively, but at one point she was arguing so hard about his mental
health in the dehydration hospitalization that you asked her, [counsel], do you have the
medical records?
***
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So my frustration is we’re using this as a sword and a shield. We’re saying, oh,
it’s just dehydration, and oh, maybe it was, you know, he was hospitalized from marital
strife. When my client was told by a social worker that he did test positive for drugs in
January.”
¶ 15 Andrew’s counsel responded that from February to November 2020, Andrew had
unsupervised parenting time by agreement and that the hair follicle test showed “he doesn’t have
drug issues.” Counsel argued that Andrew was not required to disclose his health care records
because Amy, not Andrew, put his health at issue. The trial court asked, “[W]hat’s your
hesitation to produce records that your client had heatstroke in July?” Counsel explained that if
he “opened the door” by voluntarily producing any medical records, he would waive privilege
for all records.
¶ 16 The trial court noted that mental and physical health is an element in every case and it
“need[ed] full information about that element in order to make fully informed decisions as to
what’s in the best interest of the children.” Although the court recalled “quite a bit of that hearing
from the 20th,” the parties were still given an opportunity to submit legal memorandums on the
issue of disclosure. Andrew’s oral motion for increased parenting time was denied “[o]ut of an
overabundance of caution.”
¶ 17 After another hearing on January 28, the trial court ordered Andrew to submit his mental
and medical health records to be reviewed in camera by the court to determine “what, if
anything, is to be released to counsel.” The court reasoned that “the best thing to do is to err on
the side of more data than less data in making decisions.” The court also found that Andrew had
placed his mental and physical health at issue in the proceeding:
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“[Andrew] has raised that he, you know, was out running and he sustained dehydration
and he said that was a defense. *** [Y]ou can’t raise something as a mental and physical
health concern or say what you say it was, mental or physical health, and then not let
them be able to explore what it was.”
¶ 18 On February 8, the court convened a hearing to clarify “a few issues in dispute with
respect to [the] respective court orders that were submitted after [the] last hearing.” At that time,
Amy’s counsel reiterated that Andrew’s counsel had put his health at issue at the November 20
hearing by making “representations about what the medical record said specifically.” Andrew’s
counsel had a “different take” on what happened on November 20. The court ultimately
indicated that what “was put into argument by [Andrew’s] counsel *** [was] binding upon him.”
¶ 19 On February 10, the court entered a written order requiring “the disclosure of [Andrew’s]
medical and mental health records and communications as a result of his hospitalizations and
treatments that occurred in January/February 2020 and July 2020 for in camera review.” The
court further ordered:
“3. Over Respondent’s objection, by noon on February 10, 2021, the Respondent
shall disclose the name(s), identity(ies), and address(es) of the treater(s), institution(s),
and hospital(s) that provided care and/or treatment in connection with the
January/February 2020 and July 2020 hospitalizations and treatments.”
¶ 20 Andrew did not comply with paragraph 3 of the order, and on February 22, 2021, the trial
court granted his oral motion to be held in “friendly” indirect civil contempt of court, imposing a
penalty of $1 for each day he failed to comply.
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¶ 21 ANALYSIS
¶ 22 Initially, Amy argues that Andrew’s brief should be stricken for failure to comply with
Rule 341, which provides, in relevant part, that appellate briefs “shall contain the contentions of
the appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Andrew’s brief contains ample citations to
authority and discussion of how those citations pertain to the facts of this case, with adequate
citations to the record. Amy also argues that Andrew’s statement of facts does not “contain the
facts necessary to an understanding of the case” (Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020))
because there is no “specific discussion of the substance of the November 20, 2020
proceedings,” which is not part of the record. “[W]e will not strike a party’s statement of facts
unless it includes such flagrant improprieties that it hinders our review of the issues.” John
Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693, 698 (2009). Since the record contains
facts sufficient to decide this case, our review of the issues is not hindered.
¶ 23 “The review of a contempt finding necessarily requires review of the order upon which it
is based.” In re Marriage of Nettleton, 348 Ill. App. 3d 961, 968 (2004) (explaining that “the
only order that is subject to review is the order finding [respondent] in contempt” (emphasis in
original)) (citing Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001)). Here, the contempt finding is based
upon the court’s February 10, 2021 discovery order. As this issue involves application of law to
undisputed facts, our review is de novo. Norskog, 197 Ill. 2d at 71-72. Andrew argues that the
trial court’s order was in error because (1) the issue of disclosure was not properly before the
trial court; (2) his mental health records are protected by therapist-patient privilege; and (3) his
remaining medical health records are protected by physician-patient privilege.
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¶ 24 Local Rule 13.4
¶ 25 Andrew erroneously argues that Amy never filed a written motion requesting disclosure
of his records in violation of Local Rule 13.4, which provides that “[a]ll motions, petitions and
applications shall be made in writing.” Cook Co. Cir. R. 13.4(a)(i)(a)). The record shows that on
January 6, 2021, Amy filed a written motion to continue the January 7 hearing “to a future date
after Andrew has produced any and all mental and medical health records in response to
Paragraph 39 of Amy’s First Request for Production of Documents and until Andrew has fully
complied with the guardian ad litem’s request for medical or mental health records.” In addition,
at the January 7 hearing, the parties were allowed to file legal memorandums regarding the
disclosure of Andrew’s medical and mental health records. Under these circumstances, Local
Rule 13.4 was not violated.
¶ 26 Therapist-Patient Privilege
¶ 27 Andrew argues his mental health records are statutorily privileged under the Mental
Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2020))
(Mental Health Act). The Act bars nonconsensual disclosure of mental-health-related records,
subject to the following relevant exception:
“Records and communications may be disclosed in a civil, criminal or
administrative proceeding in which the recipient introduces his mental condition or any
aspect of his services received for such condition as an element of his claim or defense.
*** [I]n any action brought or defended under the Illinois Marriage and Dissolution of
Marriage Act, *** mental condition shall not be deemed to be introduced merely by
making such claim and shall be deemed to be introduced only if the recipient or a witness
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on his behalf first testifies concerning the record or communication.” (Emphasis added.)
740 ILCS 110/10(a)(1) (West 2020).
“[R]ecord,” is defined, in relevant part, as “any record kept by a therapist or by an agency in the
course of providing mental health *** service to a recipient concerning the recipient and the
services provided.” 740 ILCS 110/2 (West 2020).
¶ 28 Andrew offered no testimony in this case regarding his mental health records or
communications. “Testimony is [e]vidence that a competent witness under oath or affirmation
gives at trial or in an affidavit or deposition.” (Internal quotation marks and emphasis omitted.)
Dep’t of Central Management Services v. Illinois Labor Relations Board, 2018 IL App (4th)
160827, ¶ 59. Amy argues that the testimony requirement was satisfied by (1) the GAL’s January
7 report to the court in which she represented that Andrew attributed the January and July 2020
incidents to a “nervous breakdown” and “dehydration” respectively, and (2) his counsel’s
arguments before the court. We do not agree that the unsworn statements of the GAL and
counsel regarding Andrew’s mental health are testimony. See In re Marriage of Saheb and
Khazal, 377 Ill. App. 3d 615, 626 (2007) (GAL’s oral report to the court at a pretrial conference
did not constitute testimony).
¶ 29 Amy argues that Andrew may not raise the testimony requirement of section 10(a)(1) for
the first time on appeal, since he did not raise this issue in the trial court. See In re Marriage of
Schneeweis, 2016 IL App (2d) 140147, ¶ 46 (“A party may not raise on appeal arguments never
raised in the trial court”). However, the record reflects that Andrew did raise the issue in his
arguments at the February 8 hearing, as follows:
“ANDREW’S COUNSEL: I would suggest to the Court that trying to bootstrap
something that Ms. Conde, who has not testified in this case, she has not been cross-
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examined, I mean there’s just no facts at all for which this Court to base a finding on that
my client affirmatively put his mental health at issue. ***
THE COURT: *** I know that perhaps Ms. Conde was not sworn at the hearing
*** but she’s an officer of the court and she made representations on the record upon
which I am relying, so.”
Accordingly, Andrew has not forfeited the testimony requirement argument.
¶ 30 In arguing that Andrew is bound by his counsel’s representations regarding his medical
records, Amy relies on In re Marriage of Marr, 264 Ill. App. 3d 932, 935 (1994). In Marr, we
observed that “[w]here a party is present in court and permits his attorney to act on his behalf,
the party may not subsequently deny his attorney’s apparent authority.” Id. However, since Marr
did not involve the issue of waiver under section 10(a)(1) of the Mental Health Act, Amy’s
reliance on that case is misplaced.
¶ 31 The record establishes that no testimony was offered on Andrew’s behalf concerning
“records or communications” regarding Andrew’s mental health in this case. Therefore, the trial
court erred in ordering the disclosure of those records.
¶ 32 Physician-Patient Privilege
¶ 33 Andrew argues his medical health records are protected by physician-patient privilege as
set forth in section 8-802 of the Code of Civil Procedure, which provides that “[n]o physician or
surgeon shall be permitted to disclose any information he or she may have acquired in attending
any patient in a professional character, necessary to enable him or her professionally to serve the
patient.” 735 ILCS 5/8-802 (West 2020). When this section conflicts with the Mental Health Act,
the latter controls. Id. Thus, while Andrew’s mental health records are privileged under the
Mental Health Act, the remainder of his medical records are governed by section 8-802.
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¶ 34 The statute contains several exceptions in which the privilege does not apply, including
“all actions brought by or against the patient *** wherein the patient’s physical or mental
condition is an issue.” 735 ILCS 5/8-802 (West 2020). For the privilege to be inapplicable, the
patient, not the opposing party, must affirmatively put his health at issue. Palm v. Holocker, 2018
IL 123152, ¶ 33 (legislature’s intent in enacting section 8-802(4) was to “codify the near-
universally recognized principle of waiver by implied consent,” not to vitiate the privilege any
time a party’s health is relevant to an action). Amy argues that Andrew affirmatively raised his
physical condition as a defense through (1) his counsel’s arguments at the November 20, 2020
hearing in which she made representations about his medical records; (2) his statements to the
GAL regarding the January and July 2020 incidents; and (3) the 10-panel drug test which he
intended to introduce at the January 7, 2021 hearing.
¶ 35 It is well established that the appellant has the burden of presenting a sufficiently
complete record to support his claims of error on appeal. Webster v. Hartman, 195 Ill. 2d 426,
432 (2001) (citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984)). “Absent a sufficient
record, a reviewing court presumes that the trial court’s order conformed to the law and had a
sufficient factual basis.” Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 9.
Absent a transcript or bystander’s report of the November 20, 2020 proceeding, we presume the
trial court correctly concluded that counsel affirmatively raised Andrew’s medical condition as a
defense at the November 20 hearing, thus waiving his physician-patient privilege.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, we find that Andrew’s mental health care records are not
discoverable under the Mental Health Act. We reverse that part of the trial court’s February 10,
2021 order directing Andrew to produce his mental health care records, and affirm that part of
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the order directing Andrew to produce his remaining medical health care records. Because
Andrew acted in good faith to test the validity of a contempt order on appeal, we vacate the trial
court’s contempt order and the fine imposed. See Kunz v. South Suburban Hospital, 326 Ill. App.
3d 951, 958 (2001).
¶ 38 Affirmed in part and reversed in part, and remanded with instructions.
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