In a contested Illinois divorce, sooner or later, there will be an evidentiary hearing to allow the judge to weigh the evidence and resolve the issues that prevent the parties from coming to an agreement.
What Is A Notice To Appear In An Illinois Divorce?
As a contested hearing or trial comes close, you or your spouse may receive a notice which will read “Pursuant to Illinois Supreme Court Rule 237(b), you are hereby notified that the Petitioner, [your name] is required to appear in open court on [date] at [time]., before the Honorable Judge [name] or any other judge sitting in his/her place.”
You have just received a 237 notice which requires you to appear in court ostensibly to testify…whether you want to or not.
“The appearance at the trial or other evidentiary hearing of a party…may be required by serving the party with a notice designating the person who is required to appear and whether the person shall appear in person or remotely, including by telephone or video conference.” Ill. Sup. Ct. R. 237(b)
Being called into the principal’s office is bad enough…but this notice can make you bring homework, too.
Documents Requested Along With a Rule 237 Notice To Appear And Produce
“The notice also may require the production at the trial or other evidentiary hearing of the originals of those documents or tangible things previously produced during discovery. If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his or her appearance at the trial or other evidentiary hearing that are just, including payment of his or her reasonable expenses.” Ill. Sup. Ct. R. 237(b)
The Rule 237 Notice To Appear And Produce will also often say “You are hereby further notified to bring the following documents or tangible things which constitute evidence relating to the said cause and which are listed below, and therefore to testify concerning the same: SEE ATTACHED RIDER.”
The Rider is a document attached to the Notice To Appear And Produce which details what exactly is being requested.
A Rule 237 Rider will contain instructions followed by a list of what’s requested. An example of the instructions are below:
In complying with this Notice pursuant to the Illinois Code of Civil Procedure and the Rules of the Illinois Supreme Court, you must comply with the following instructions and use the following definitions in responding to this Document Rider:
General Provision. This request for production of documents cover all documents, objects or tangible things that are in the possession and/or control of the deponent and/or the otherwise available to the deponent.
Non-Limiting Language. All document requests which are stated in the conjunctive are to be read and answered as requested.
Copies. Complete and accurate copies will be acceptable compliance with a request for a document.
Manner of production. All documents must be produced in order in which they are kept in the usual course of business or organized and labeled to correspond with categories in this request.”
Then the actual documents requested will be listed. An example is listed below.
“DOCUMENTS TO PRODUCE
With respect to the attached Notice to Appear, you are to produce the following:
- Petitioner’s Updated Financial Affidavit;
- Petitioner’s checks, W-2’s, 1099’s and other documents or records reflecting income received from Petitioner’s business from February 12, 2016 through the present;
- Bank Account Statements for each bank account held in Petitioner’s name from February 12, 2016 through the present;
- Petitioner’s answers to all discovery requests sent to Petitioner on January 18, 2017;
- Petitioner’s answers to the 201(k) letter sent to Petitioner on February 15, 2017;
- Petitioner’s answers to the Supplemental Notice to Produce Documents sent to Petitioner on June 19, 2018.
- Petitioner’s answers to the Second Supplemental Notice to Produce Documents sent to Petitioner on May 30, 2019;
- Petitioner’s answers to the Second 201(k) letter sent to Petitioner on August 13, 2019; and
- Petitioner’s answers to the Motion to Compel sent to Petitioner on August 23, 2019.”
The Limits Of A Rule 237 Notice To Appear And Produce
The power of a Rule 237 Notice To Appear And Produce is not absolute. The divorce judge has the ultimate authority to enforce the notice to appear or not.
“The law is well settled in Illinois that in matters of discovery, including notices to produce under Supreme Court Rule 237(b), the power vested in the trial court requires a careful exercise of its discretion in order to balance the needs of seeking the truth against the needless harassment of a party litigant.” CEDRIC SPRING & ASSOC., INC. v. NEI CORP., 402 NE 2d 352 – Ill: Appellate Court, 2nd Dist. 1980
Specifically, Rule 237 Notices to Appear And Produce cannot be used to get discovery at the literal last minute, moments before hearing or trial.
“Rule 237 notices are not discovery tools and should not be used as a substitute for the discovery rules.” Cohn v. Northern Trust Co., 250 Ill. App. 3d 222, 227-28 (1993)
The prohibition on using Rule 237 as an initial discovery device is further underscored by the committee comments of the writes of rule 237.
“Paragraph (b) has been revised to clarify the fact that Rule 237(b) is not a discovery option to be used on the eve of trial in lieu of a timely request for the production of documents, objects and tangible things pursuant to Rule 214. Discovery of relevant documents, objects and tangible things should be diligently pursued before trial pursuant to Rule 214. Under the new paragraph, a Rule 237(b) request to produce at trial will be expressly limited to those documents, objects and tangible things produced during discovery. This revision will effect a change in current practice, under which a Rule 237(b) request to produce at trial is often utilized as a major discovery tool by nondiligent litigants, a practice that often causes trial delay. It is the intent of this revision to establish that due diligence for the purposes of a motion to delay the trial cannot be shown by a party who first attempts to discover documents, objects or tangible things by serving a request under Rule 237(b). [Citation].” Ill. S. Ct. R. 237, Committee Comments (rev. June 1, 1995)
The documents requested in the rider to a Rule 237 Notice To Appear and Produce must have been requested before the Rule 237 request to produce was filed and served. So, why would someone ask them to produce documents that should have already been produced?
The reason a 237 Notice To Appear And Produce requests documents already requested is to 1) get updated copies of those documents or 2) emphasize that the witness never produced the documents as required.
Notices To Appear And Produce In An Illinois Divorce
There is an exception for first time discovery requests via Rule 237: expedited or summary hearings in domestic relations cases.
“In a domestic relations case, the appearance at an expedited hearing of a party who has been served with process or appeared may be required by serving the party with a notice designating the party who is required to appear and stating whether the party shall appear in person or remotely, including by telephone or video conference. The notice may also require the production at the hearing of the original documents or tangible things relevant to the issues to be addressed at the hearing.” Ill. Sup. Ct. R. 237(c) (emphasis mine)
Again, the Rule’s Committee comments shed light onto how the rule was written and how it should be applied.
“Because of the important issues decided in expedited hearings in domestic relations cases, including temporary family support, temporary child custody, and temporary retraining orders, a trial court should have the benefit of the attendance of individuals and production of documents and tangible things on an expedited basis.” Ill. S. Ct. R. 237, Committee Comments (rev. Feb. 1, 2005)
Notices To Appear And Produce For Non-Parties To An Illinois Divorce
Anyone can be required to testify at an Illinois divorce hearing or trial. Non-parties must be ordered to attend court via subpoena. All that’s required is a certified mailing and fee to pay for the expense of attendance at the hearing or trial.
“Any witness shall respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered. Service of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the witness or his or her authorized agent by certified or registered mail at least seven days before the date on which appearance is required and an affidavit showing that the mailing was prepaid and was addressed to the witness, restricted delivery, with a check or money order for the fee and mileage enclosed.” Ill. S. Ct. R. 237(a)
In the age of Zoom, the cost of attending a Zoom hearing is probably zero.
Non-parties often won’t show up at an Illinois divorce hearing because they “don’t want to get involved.”
The failure of a non-party to appear in court results in delay of the final ruling and a possible body attachment in order to enforce their appearance (if deemed necessary by the court).
If the non-party is an employee of a party, then the employer can force the non-party to appear without the other party chasing the non-party down.
“The appearance at the trial or other evidentiary hearing of a party or a person who at the time of trial or other evidentiary hearing is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear and whether the person shall appear in person or remotely, including by telephone or video conference.” Ill. Sup. Ct. R. 237(b) (emphasis mine)
The non-party employee can make no objection to appearing in an Illinois divorce court hearing they have nothing to do with because “[the party] had submitted to the jurisdiction of the Circuit Court…and was subject to discovery orders entered by that court. This jurisdiction includes the power to order a corporate party to produce its officers and directors at trial.” Oakview New Lenox Sch. Dist. v. Ford Motor Co., 378 NE 2d 544 – Ill: Appellate Court, 3rd Dist. 1978
Failure To Appear Or Produce Pursuant To A Rule 237 Notice To Appear And Produce
“Upon a failure to comply with the notice, the court may enter any order that is just, including any sanction or remedy provided for in Rule 219(c) that may be appropriate.” Ill. Sup. Ct. R. 237
If you’re getting ready for an Illinois divorce hearing or trial, you need to be sure that all of your witnesses will be there. Contact my Chicago, Illinois family law firm to learn more about how to force your witnesses to testify to the evidence you need in order to win your Illinois divorce case.