Divorce judges make dozens to hundreds of decisions every day. Sometimes, those decisions are in error. A judge’s wrong decision can be appealed to a higher court.
Typically, this appeals process happens at the end of a trial because, generally only final orders can be appealed.
“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located” Ill. Const. Art. VI. Sec. 6
“Every final judgment of a circuit court in a civil case is appealable as of right.” Ill. Sup. Ct. R. 301
Divorces, typically, only have one final order: the Judgment For Dissolution of Marriage.
“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim…where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” In re Marriage of Leopando, 449 NE 2d 137 – Ill: Supreme Court 1983
Sometimes, a judge makes a decision at the beginning of a divorce case that, effectively, ruins the rest of the case even though the case is not yet over. This is especially prevalent with decisions made regarding discovery.
Discovery is “compulsory disclosure, at a party’s request, of information that relates to the ligitation.” Black’s Law Dictionary (11th ed. 2019)
If you cannot get discovery from the opposing side or third parties, you are going to have a very hard time proving income, assets, and behavior that could affect parenting time.
A court’s denial of a motion to compel discovery could mean, substantively, the end of your divorce case…and there’s not much you can do about it.
“Preliminary orders in a pending case are not appealable because they are reviewable on appeal from the final order.” People ex rel. Scott v. Silverstein, 429 NE 2d 483 – Ill: Supreme Court 1981
Appealing Denied Discovery Requests
Do not fret! There is still hope when your discovery request is denied despite the general bar against appealing non-final orders.
Conceptually, discovery should be liberally allowed.
“The purpose of discovery is to enable counsel to better prepare and evaluate their case.” Senese v. Climatemp, Inc., 582 NE 2d 1180 – Ill: Appellate Court, 1st Dist., 6th Div. 1991
“The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practical. The objectives of pretrial discovery are to enhance the truth-seeking process, to enable attorneys to better prepare and evaluate causes, to eliminate surprises, and to insure that judgments rest on the merits and not upon the skillful maneuvering of counsel.” Cole Taylor Bank v. Corrigan, 595 NE 2d 177 – Ill: Appellate Court, 2nd Dist. 1992
Discovery is governed by the Illinois Supreme Court rules. “Information is obtainable as provided in these rules”. Ill. S. Ct. R. 201(a)
Generally, the rules require “full disclosure regarding any matter relevant to the subject matter involved in the pending action.” Ill. S. Ct. R. 201(b)(1)(emphasis mine)
The “concept of relevance is broader for discovery purposes than for purposes of the admission of evidence at trial, since it includes not only what is admissible at trial, but also that which leads to what is admissible.” Crnkovich v. Almeida, 261 Ill. App. 3d 997, 999, 199 Ill. Dec. 776, 634 N.E.2d 1130 (1994).
“A trial court does not abuse its discretion in denying discovery of a subject not relevant to the action…A trial court’s orders concerning discovery will not be disturbed on appeal absent a manifest abuse of discretion. An affirmative showing of abuse must be clearly demonstrated by an appellant.” Schneiderman v. Kahalnik, 200 Ill. App. 3d 629, 636-37, 146 Ill.Dec. 371, 558 N.E.2d 334 (1990).
If there’s an abuse of discretion, an order regarding discovery is appealable. The question is, “what is an abuse of discretion”.
A very narrow definition of an abuse of discretion is that it’s a decision that is impossibly unreasonable. “A trial court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable, no reasonable person would take the view adopted by the trial court, or its ruling rests on an error of law.” In re Marriage of Benink, 2018 IL App (2d) 170175, ¶ 32.
This definition does not help the argument that a denial of discovery is appealable. Judges usually have reasons (reasons are usually reasonable) why they denied the discovery request.
A better definition of abuse of discretion is that the judge didn’t follow the rules. ““[A] trial court abuses its discretion if it fails to apply the proper criteria when it weighs the facts” Paul v. Gerald Adelman & Associates, Ltd., 858 NE 2d 1 – Ill: Supreme Court 2006
So, what are rules regarding denying discovery requests?
“[A] trial court should not refuse a discovery request and grant a motion to dismiss where it reasonably appears discovery might assist the party opposing the motion.” Allen v. Peoria Park District, 968 NE 2d 1199 – Ill: Appellate Court, 3rd Dist. 2012 (emphasis mine)
Most discovery requests in an Illinois divorce are to the adverse party. Illinois courts must be especially mindful not to deny these requests. “Especially where the facts are exclusively within the knowledge of the opponent, it may be error to deny discovery” Yuretich v. Sole, 631 NE 2d 767 – Ill: Appellate Court, 4th Dist. 1994
The Petition for Dissolution of Marriage and the outstanding motions cannot constrain discovery if the discovery is to the adverse party. “Plaintiff is not required to allege facts with precision where the necessary information is within the defendant’s knowledge and plaintiff has not had the benefit of discovery. Plaintiff must be given the opportunity to have the benefit of discovery and further develop the facts in this case.” JOHN BURNS CONST. CO. v. City of Chicago, 601 NE 2d 1024 – Ill: Appellate Court, 1st Dist., 5th Div. 1992
If the documents requested are necessary to prove the relief your seeking, the court must allow the discovery of those documents. “[T]he requested documents related to some of the ultimate facts necessary for judgment. The documents would have helped defendant prepare his case, and thus the trial court erred in denying discovery.” Cole Taylor Bank v. Corrigan, 595 NE 2d 177 – Ill: Appellate Court, 2nd Dist. 1992
The counterargument to any appeal of a denial of discovery is that the discovery request was a “fishing expedition.”
“A plaintiff must possess a minimum level of information indicating defendant is liable to him before he commences litigation and forces defendant to undergo discovery. Otherwise plaintiff is engaged in a “fishing expedition,” a recognized form of litigation abuse. It is no justification that a fishing expedition might result in worthwhile information; the possibility of success must be sufficient to justify the inconvenience or expense to the opponent.” Yuretich v. Sole, 631 NE 2d 767 – Ill: Appellate Court, 4th Dist. 1994 (citations omitted)
In a divorce, if the discovery request is even remotely related to money…an opposing party will have some kind of liability to the other side and thereby obviate the “fishing expedition” counterargument.
While discovery orders are definitely appealable, they are still non-final orders. A discovery order which was denied cannot be appealed until a later final order is entered.
While non-final orders cannot be appealed, appeals can consider non-final orders that let to the final order.
“The appeal from a subsequent final judgment draws in question all prior non-final orders and rulings which produced the judgment.” Burtell v. First Charter Service Corp., 394 NE 2d 380 – Ill: Supreme Court 1979 (citations omitted)
There may be some ways to get in front of an appellate judge before doing a whole trial without your denied discovery.
You can ask the judge for permission to appeal early. “[A]n appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both” Ill. Sup. Ct. R. 304(a)
Similarly, you can ask the judge to “certify the question” so you can have an answer as to whether the discovery was properly denied.
“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” Ill. Sup. Ct. R. 308(a)
Why would a judge grant you special permission to appeal them early? Because a court does not want to do a whole trial without the discoverable evidence followed by an appeal, followed by a second trial with the discoverable evidence.
Appealing Motions To Compel Discovery In An Illinois Divorce
If a court does order discovery and the party so ordered to tender that discovery chooses to appeal, that party will not be limited by the bar against appealing non-final orders. Failure to comply with an order causes the non-complying party to be in contempt. Contempt is always appealable.
“It is well settled that exposing one’s self to a finding of contempt is an appropriate method of testing the validity of a court order.” Buckholtz v. Timons, 313 Ill. App. 3d 521, 527 (Ill. App. Ct. 2000)
“Because discovery orders are not final orders, they are not ordinarily appealable. However, it is well settled that the correctness of a discovery order may be tested through contempt proceedings. When an individual appeals contempt sanctions imposed for violating, or threatening to violate, a pretrial discovery order, the discovery order is subject to review. Review of the contempt finding necessarily requires review of the order upon which it is based.” Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001)
Don’t worry. Courts won’t take offense if you put yourself in contempt for the purposes of getting clarity from the appellate court.
“[W]here a refusal to comply with the court’s order constitutes a good-faith effort to secure an interpretation of an issue without direct precedent, it is appropriate to vacate a contempt citation on appeal. ” In re Marriage of Rosenbaum-Golden, 381 Ill. App. 3d 65, 82 (Ill. App. Ct. 2008)
If things aren’t going your way in your divorce as early as the discovery stage, you need serious help. Contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
