Opinion
1- 20-1196
06-30-2022
TYSON THRASHER, Plaintiff-Appellee, v. SYMPHONY THRASHER Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County, Illinois No. 18 D 003105 The Honorable Regina Scannicchio Judge Presiding
JUSTICE WALKER delivered the judgment of the court. Justices Pucinski and Coghlan concurred in the judgment.
ORDER
WALKER, JUSTICE
Held: Where a party has failed to appear for trial, and an ex parte trial is held, the trial court must permit the attorney for that party to cross-examine the appearing party's witnesses. The trial court should avoid resorting to the extreme sanction of default when its ruling could adversely affect the interests of minor children.
¶ 1 On April 17, 2018, Tyson Thrasher filed a petition for dissolution of marriage from Symphony Thrasher. When Symphony's attorney appeared in court without his client on the first day set for trial, the court held Symphony in default and entered a final judgment awarding Tyson custody of the parties' children and child support. On appeal, Symphony argues the trial court erred by (1) denying her attorney the opportunity to cross-examine Tyson's witnesses; (2) denying her motion to vacate the judgment; (3) imposing financial sanctions against her for an alleged false statement to the court by her attorney, and (4) entering excessive discovery sanctions. We find the trial court committed reversible error by disallowing cross-examination of Tyson's witnesses. The court abused its discretion by denying the motion to vacate the judgment, and the court erred in its imposition of sanctions against Symphony and her attorneys for "false representations" and for "perpetrating] a fraud upon [the] court." We further find that the trial court did not abuse its discretion when it imposed sanctions for late compliance with its discovery order. We reverse in part, affirm in part, and remand.
¶ 2 I. BACKGROUND
¶ 3 Symphony and Tyson married in 2002 and had two children: Emmanual, born in 2006, and Tynia, born in 2009. Tyson petitioned for divorce in April 2018. In May 2018, Rodrick Wimberly of Lakeshore East Law Group, representing Symphony, filed a motion to vacate defaults and for leave to file an appearance and an answer. When neither Symphony nor Wimberly came to court on the date set for hearing, the trial court struck the motion. Symphony filed a pro se appearance when she came to court for entry of a custody order on June 11, 2018. Wimberly refiled the motion to vacate defaults and for leave to file an appearance and an answer. On June 13, 2018, the Lakeshore East Law Group filed its appearance as Symphony's attorney, and it filed a motion to vacate the order entered on June 11.
¶ 4 On July 6, 2018, Symphony and Lorethea Spencer of Lakeshore East Law Group came to court for a status call. Spencer told the court that Lakeshore East Law Group had filed an appearance as Symphony's attorney and a motion to vacate the custody order. On July 23, 2018, Tyson filed a motion for sanctions under Supreme Court Rules 137 and 375 (Ill. S.Ct. R. 137 (eff. Jan. 1, 2018), Ill. S.Ct. R. 375 (eff. Feb. 1, 1994)), claiming that Wimberly, Spencer, and Symphony made false representations to the court. Tyson specifically alleged, "Neither Roderick Wimberly nor Lorethea B. Spencer filed an appearance on behalf of Symphony and in fact perpetrated a fraud upon this court." He also claimed Spencer lied to the court when she said that Lakeshore East Law Group filed "a motion to vacate the previous order for temporary possession and custody of the child." The court granted Tyson's motion and, in an order dated August 19, 2018, awarded Tyson $1,500 in sanctions against Symphony. Symphony filed a motion to reconsider, pointing out that court files showed neither she nor her attorneys made any false representations to the court. The trial court, without explanation, denied the motion to reconsider.
¶ 5 Symphony filed an answer and a request for maintenance. Tyson filed a petition for a rule to show cause regarding why the court should not hold Symphony in contempt for failure to respond to discovery. The court entered an order dated March 15, 2019, directing Symphony to respond to outstanding discovery by March 29, 2019, or "a $25 per day assessment shall be made for each day there is no compliance." Symphony did not meet the deadline, but she served Tyson with responses to all outstanding discovery on May 13, 2019. Service was made 45 days after the date on which the assessment was to begin. Symphony's financial affidavit showed earnings of $47,000 for 2018, but she lost her job in February 2019. Tyson's financial affidavit showed he earned $93,000 in 2018.
¶ 6 The court scheduled the trial for February 24, 25, and 26, 2020. On February 24, Tyson, Tyson's attorney, and Wimberly came to court, but Symphony did not arrive by the scheduled time for trial. Wimberly called Symphony and reported to the court that Symphony misremembered the date. She left her south suburban home right after Wimberly called, but because she relied on public transportation, she did not know when she would arrive at court.
¶ 7 The court defaulted Symphony and heard a summary of Tyson's evidence on all issues in the divorce. The guardian ad litem testified, and Tyson's attorney questioned the guardian, but the court did not permit Wimberly to cross-examine Tyson or the guardian ad litem, the only witnesses at the trial. The court stated to Wimberly:" [Tyson's] Counsel will have an opportunity to examine [the guardian ad litem]if he chooses. You will not because your client is not here. And by being in default, we will proceed on Mr. Thrasher's petition, [Symphony] will be barred from providing testimony."
¶ 8 Wimberly argued that the default should not preclude him from cross-examining witnesses. The transcript shows the following:
JUDGE SCANNICCHIO: "[Symphony] has been barred in all aspects from participating in these proceedings. If you are cross-examining a witness, you are seeking to elicit testimony from a witness that becomes part of my record of which your client is barred from participating in. ***
*** [N]othing that you cited *** on behalf of the defaulted party, who has *** been barred from presenting evidence or testimony to this court [shows] that you have a right to examine any witnesses in these proceedings. MR. WIMBERLY: Can you allow me to --
JUDGE SCANNICCHIO: Motion is denied."
¶ 9 The court proceedings lasted for 90 minutes, and Symphony had not arrived by the end. In the order entered after the hearing, the court first listed Symphony's history of misconduct:
"a. On May 16, 2018, neither Respondent nor her counsel appeared in court, and Respondent's motion [for leave to file an appearance and to vacate defaults] was struck from the call;
b. *** [S]he remained in default as of August 16, 2018, for her failure to answer *** the petition for dissolution of marriage;
c. On November 20, 2018 the parties were ordered to update and exchange financial information;
d. On January 15, 2019 the matter was set for hearing on Ms. Thrasher's motion to modify the June 11th agreed order regarding temporary possession of the minor children ***. Ms. Thrasher responded, failed to complete a financial affidavit as ordered by the court on November 8, 2018, and failed to attach and file exhibits *** [and] the petition was denied, and the respondent's motion to vacate amend or modify the June 11, 2018 order was denied, for Ms. Thrasher's failure to comply with the court's prior orders;
e. On March 15, 2019, a rule after hearing was issued against Ms. Thrasher with respect for her failure to comply with the court order regarding household expenses, as well as her failure to obtain employment and Respondent did not appear in open court for her hearing on March 15, 2019 and was not present to answer the allegations. At that point, she was held in indirect civil contempt for failure to comply with the November 20, 2018 order;
f. On April 1, 2019, *** Ms. Thrasher had not complied with the outstanding purge.
g. On April 24, 2019, the court made a specific finding that the respondent's behavior of noncompliance is without compelling cause or justification, and that the respondent was fined twenty-five dollars (S25.00) per day for noncompliance with respect to the discovery order that was entered March 15, 2019; and
h. On February 24, 2020, Respondent failed to appear for trial."
¶ 10 The court ordered Symphony to pay Tyson child support of $524.25 per month, barred her from receiving maintenance, and ordered her to pay $6,225 as her $25 per day fine for her late response to discovery. The court limited the children's time with Symphony to "alternating weekends *** commencing from Friday after school, or else 4 p.m., to Sunday at 6 p.m, and *** the parties are to alternate major holidays with the minor children, and Respondent is awarded two (2) weeks during the summer months."
¶ 11 In a timely motion to vacate the default judgment, Symphony alleged she could present evidence of her financial need for maintenance, the children's need for child support while in her custody, evidence of her bond with her children, and their need for time with her. She also alleged that the guardian ad litem had recommended the parties should have equal time with the children. The trial court denied the motion to vacate the default judgment. Symphony now appeals.
¶ 12 II. ANALYSIS
¶ 13 On appeal, Symphony argues that the trial court erred by (1) denying her attorney the opportunity to cross-examine Tyson's witnesses; (2) denying the motion to vacate the judgment; (3) imposing financial sanctions against her for an alleged false statement to the court by her attorney, (4) entering excessive discovery sanctions for her late response to discovery.
¶ 14 Cross-examination
¶ 15 The parties agree that the court entered a judgment after an ex parte trial, although the court designated its order as a default judgment. See Dils v. City of Chicago, 62 Ill.App.3d 474, 479- 81, 378 N.E.2d 1130, 1134-35 (1978). The parties also agree that the mis-designation does not affect the validity of the order. See Teitelbaum v. Reliable Welding Co., 106 Ill.App.3d 651, 658-59, 435 N.E.2d 852, 858 (1982); City of Joliet v. Szayna, 2016 IL App. (3d) 150092, ¶ 47.
¶ 16 Tyson argues that Symphony waived the issue concerning cross-examination by failing to make an offer of proof. A party waives any claim that the testimony was improperly excluded where the party fails to make an offer of proof as to excluded testimony. However, a party does not waive an argument by failing to make an offer of proof where the trial court precludes the party from doing so. Carter v. Azaran, 332 Ill.App.3d 948, 956, 774 N.E.2d 400 (2002).
¶ 17 Here, the trial court repeatedly interrupted Wimberly and reminded him that Symphony was "barred in all aspects from participating in these proceedings." The court prevented Wimberly from making an offer of proof. Therefore, we find the lack of an offer of proof does not waive the issue for this appeal. See Aguinaga v. City of Chicago, 243 Ill.App.3d 552, 572 (1993).
¶ 18 To obtain a judgment at an ex parte trial, the plaintiff must proceed in the same manner as if the defendant were present. See Koenig v. Nardello, 99 Ill.App.2d 480, 482-83, 241 N.E.2d 567, 569 (1968). In accord with that principle, the trial court in Berman v. Dempsey, 257 Ill.App.3d 496, 500, 629 N.E.2d 720, 722-23 (1994), permitted the defendant to cross-examine the plaintiff's witnesses, despite the defendant's default. We have not found any Illinois case where a party's absence led the trial judge to refuse the attorney's request for leave to cross-examine witnesses.
¶ 19 We find that Symphony's unexcused absence should not have prevented her attorney from cross-examining Tyson's witnesses. The trial court committed reversible error by barring Wimberly from cross-examining Tyson and the guardian ad litem. See In re Dolly D., 41 Cal.App.4th 440, 442-47, 48 Cal.Rptr.2d 691, 693-96 (1995).
¶ 20 Motion to Vacate
¶ 21 Symphony argues that the trial court should have vacated the judgment entered after the ex parte trial. We address this argument to clarify the scope of issues the trial court should address on remand. We review the denial of a motion to vacate an ex parte judgment for abuse of discretion. Godfrey Healthcare & Rehabilitation Center, LLC v. Toigo, 2019 IL App (5th) 170473, ¶ 38.
¶ 22 The decision to deny a 735 ILCS 5/2-1301(e) motion to vacate or set aside a final order is within the trial court's sound discretion, and it will not be reversed absent an abuse of discretion or denial of substantial justice. Litvak v. Black, 2019 IL App (1st) 181707, ¶ 23. The trial court abuses its discretion when it acts arbitrarily, without conscientious judgment, exceeds the bounds of reason, and ignores recognized principles of law resulting in substantial injustice. In re Marriage of Marsh, 343 Ill.App.3d 1235, 1240 (2003).
¶ 23 In this case, the trial court explained that it entered the judgment because of Symphony's repeated misconduct. Symphony and her attorney both failed to appear for a hearing on their motion in May 2018. In August 2018, the court entered sanctions against Symphony for failure to file an answer to Tyson's petition for divorce, and in January 2019, the court imposed further sanctions because Symphony failed to file a financial affidavit and other exhibits. Symphony did not appear in court on March 15, 2019, for a hearing concerning responses to discovery. She responded to discovery on May 13, 2019. Then she failed to appear on the first day of a three-day trial.
¶ 24 Whether a court should set aside a default should be resolved in a manner that strives for substantial justice between the parties with a goal of resolving matters on the merits when possible. Default is one of the most drastic actions a court may take to punish for disobedience of its commands, and the court has other powers which are ample in most instances. A default should only be condoned when it is necessary to give plaintiffs their just demand. It should be set aside when it will not cause a hardship upon the plaintiffs to go to trial on the merits. See Freeborn & Peters v. Professional Seminars Associates, Inc., 176 Ill.App.3d 714, 719, 531 N.E.2d 806, 809 (1988). "The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment." People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 196, 226 N.E.2d 6 (1967).
¶ 25 In this case, as in Johnson v. Chicago & Western Indiana R.R. Co., 11 Ill.App.3d 817 (1973), interested parties were minor children. Under these circumstances, the trial court should not have invoked the extreme sanction of default but should have used other methods for obtaining compliance with its orders.
¶ 26 Our primary considerations are substantial justice between the parties and the reasonableness of compelling a judgment on the merits. In re Marriage of Drewitch, 263 Ill.App.3d 1088, 1096 (1994). We find that considerations of substantial justice for the parties and their minor children make it reasonable to compel Tyson to go to trial on the merits. We direct the trial court to vacate the judgment and hear evidence on all issues in the divorce.
¶ 27 Financial Sanctions
¶ 28 Symphony also challenges two of the financial penalties the court imposed. On August 19, 2018, the trial court granted Tyson's motion for sanctions and ordered her to pay him $1,500. In his motion Tyson cited Supreme Court Rules 137 and 375 as authorizing the sanction against Symphony and her attorneys for "false representations" and for "perpetrating] a fraud upon this court." We will not reverse an order for sanctions unless the trial court abused its discretion. Enbridge Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 49.
¶ 29 To support the false representation, Tyson used Spencer's statements to the court on July 6, 2018, that Lakeshore East Law Group filed an appearance as counsel for Symphony and a motion to vacate the custody order. The record on appeal shows the lawyers filed the appearance and the motion on June 13, 2018. Because Tyson has not shown any false representation, we vacate the sanctions imposed by the order dated August 19, 2018. See Law Offices of Brendan R. Appel, LLC v. Georgia's Restaurant & Pancake House, Inc., 2021 IL App (1st) 192523, ¶ 64.
¶ 30 Finally, Symphony contends the trial court miscalculated the fine it imposed for her delayed response to discovery. We review the discovery sanction for an abuse of discretion." Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 120 (1998). Symphony does not contest the order setting a fine of $25 per day for delay in responding to discovery, and she admits she did not meet the court's deadline. The record shows she delivered the discovery responses to Tyson on May 13, 2019, 45 days after the date set for beginning the $25 per day fine. Symphony did not include a Certificate of Completeness, as required by Illinois Supreme Court Rule 214 (c) (eff. July 1, 2018).
¶ 31 Rule 214(c) provides, in relevant part, that "The producing party shall furnish an affidavit stating whether the production is complete in accordance with the request. Copies of *** affidavits of completeness shall be served upon all parties entitled to notice." Ill. S.Ct. R. 214(c) (eff. July 1, 2018). Here, the sanction imposed by the trial court was justified because Symphony did not attach a Certificate of Completeness to her discovery responses until 249 days after the court ordered fine began to accrue.
¶ 32 It is well established that" [t]he decision to impose a particular sanction under Rule 219(c) is within the discretion of the trial court and, thus, only a clear abuse of discretion justifies reversal." Shimanovsky, 181 Ill.2d 112, 120 (citing Boatman's National Bank v. Martin, 155 Ill.2d 305, 314 (1993)). A clear abuse of discretion occurs when "the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view of the trial court." People v. Hall, 195 Ill.2d 1, 20 (2000).
¶ 33 Hence, the trial court did not abuse its discretion by enforcing the requirements of Illinois Supreme Court Rule 214(c). Accordingly, we affirm the $6,225 sanction imposed for late compliance with the trial court's discovery order.
¶ 34 III. CONCLUSION
¶ 35 The trial court committed reversible error by barring Symphony's attorney from cross-examining Tyson's witnesses. On remand, we direct the court to vacate the judgment and hear evidence on all issues in the divorce. Because Tyson did not show that Symphony or her attorneys made any false representations to the court to support the sanctions imposed in the order dated August 19, 2018, we vacate the $1,500 sanction ordered on that date. We affirm the $6,225 sanction imposed for late compliance with the trial court's discovery order. ¶ 36 Reversed in part, affirmed in part, and remanded with directions.