NO. 4-01-0567

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On July 5, 2001, the trial court entered a judgment ofdissolution of the marriage of petitioner Margaret Betty McLean(petitioner) and respondent Charles Robert McLean (respondent). Petitioner, age 71 at the filing of the petition for dissolution, was in the end stages of cancer and sought a divorce from respondent, age 66, prior to her death, claiming mental cruelty asgrounds for the dissolution. Finding such grounds after ahearing, the trial court entered the judgment of dissolution butreserved all other issues.

Respondent appeals the finding as to grounds, but alsothe entry of the dissolution without a disposition of property. Further, respondent appeals the trial court's denial of hismotion for an independent medical or mental examination of thepetitioner. As to all three issues, we find no error and affirmthe trial court's judgment.

I. BACKGROUND

Petitioner and respondent were married on May 20, 1977,in Springfield, where they have continuously resided ever since. Both petitioner and respondent had children from previous marriages, and no children were born to the 24-year marriage. In1982, both petitioner and respondent executed similar wills, eachnaming the surviving spouse as executor and beneficiary of themajority of each party's estate.

In June 1993, petitioner was diagnosed with endometrialcarcinoma and was treated, but she relapsed in October 1996. Thecarcinoma advanced further, and in August 2000, at the suggestionof her doctors, petitioner entered a hospice program. At alltimes relevant to this appeal petitioner was under continuousmedical care. By the time of the filing of the initial petitionfor dissolution in April 2001, petitioner had exhausted allchemotherapy options and was terminally ill.

On April 11, 2001, petitioner filed a petition fordissolution of marriage, alleging extreme and repeated mentalcruelty by respondent as grounds for dissolution. The same day,petitioner filed a motion for preliminary injunction to restrainrespondent from transferring any of the marital assets, themajority of which were held in joint tenancy. Respondent wasserved with the petition and the motion for preliminary injunction that same day, April 11, 2001.

The following day, April 12, 2001, petitioner filed amotion for final judgment of dissolution, in essence suggesting petitioner's deteriorating health mandated the entry of immediatedissolution. In support of this motion, petitioner alleged shehad already exceeded her life expectancy of October 2000 and herlife expectancy was unknown. Further, petitioner alleged themajority of the marital assets were held in joint tenancy withrespondent, but she wished to "dispose of her just portion of theassets" prior to her death.

On April 12, 2001 the trial court issued a temporaryrestraining order prohibiting respondent from transferring,withdrawing, or otherwise encumbering the parties' maritalassets. The order further authorized petitioner to liquidate$10,000 worth of the parties' illiquid assets and granted petitioner possession of one of the parties' vehicles. The followingday the court entered a similar order, directing liquidation of$10,000 worth of the parties' treasury notes.

Respondent countered on April 17, 2001, with a motionto strike the temporary restraining order as being enteredwithout sufficient notice and despite the availability of whatrespondent alleged were adequate legal remedies. The same day,respondent moved to dismiss the temporary restraining order, thepetition for preliminary injunction, the petition for dissolution, and the motion for judgment. The crux of respondent'sarguments was as follows: due to the treatments petitioner wasreceiving, which included morphine, petitioner could not makelegal decisions on her own and was being unduly influenced by herchildren for their financial gain. In short, respondent alleged,petitioner did not "have legal capacity to sue." Petitionercountered these motions on April 19, 2001, by filing a responseincluding affidavits of petitioner's physician and a nurseresponsible for petitioner's care. Both stated, despite themedications petitioner was taking, petitioner was alert, oriented, and capable of making decisions.

In the meantime, on April 26, 2001, petitioner executeda new will, making a series of detailed dispositions of herpersonal property to her two daughters and several of her grandchildren. While the will recited the fact of petitioner'smarriage to respondent, a clause in the will stated, "I haveintentionally made no provisions in this will for my husband,[respondent], as at the time of this will I am in the process ofobtaining a dissolution of marriage from him."

On May 15, 2001, petitioner scheduled an emergencygrounds hearing for May 17, 2001. Respondent filed a motion tocontinue, noting the parties were scheduled to meet with aconciliation counselor on May 24, 2001. The court allowed thismotion and set the grounds hearing for June 21, 2001.

But on June 14, 2001, petitioner again filed an emergency motion for a hearing on grounds, stating petitioner'shealth was declining precipitously, so her life expectancy wasnot more than several days. Petitioner reiterated her desire tobe divorced from respondent prior to her death so she mightdispose of her portion of the jointly held marital assets. Petitioner also served notice of an evidence deposition ofpetitioner to be conducted the same day, June 14, 2001, at 6 p.m. Respondent's counsel received these notices at approximately 4:30p.m. on June 14, 2001. Respondent's counsel attempted to file amotion to quash, but counsel's attempts to contact the trialcourt for a hearing on the motion were unsuccessful. The evidence deposition was conducted the same day without respondent orrespondent's counsel present.

At the deposition, petitioner was questioned about herdesire to be divorced from respondent. Initially, petitionerincorrectly stated the date of her marriage to respondent asSeptember 20, 1979, then stated the date of her marriage was May20, 1979. Petitioner affirmatively stated her desire to bedivorced from respondent, stating he "downgraded her constantly"and shouted expletives at her. According to petitioner, respondent did not want petitioner to have any friends and became angrywhen she interacted with friends. When asked if respondent hadever told her he hoped she dies, petitioner replied in theaffirmative. Further, petitioner stated her belief respondenthad not been giving her the proper amount of medicine, which hadexacerbated her condition.

The trial court, on June 15, 2001, entered an ordercommencing a grounds hearing and received the evidence depositionof petitioner taken the previous day. The court then grantedrespondent's motion to continue the hearing until June 21, 2001. The same day, respondent filed an answer to the petition fordissolution as well as the motion to quash the evidence deposition. On June 20, 2001, respondent issued a subpoena compellingthe petitioner's appearance at the grounds hearing on June 21,2001, the following day.

On June 21, 2001, the day of trial, respondent filed amotion to disclose witnesses, as well as a motion for extensionof time to retain an expert witness who would "ascertain [petitioner's] competency to testify." This latter motion, as well aspetitioner's motion to quash the subpoena compelling the appearance of petitioner, was taken with the case by the trial court.

The trial then proceeded without petitioner beingpresent. Petitioner's counsel called respondent and questionedhim about his behavior toward petitioner. Respondent denied theallegation he had intentionally given petitioner less medicinethan prescribed. Respondent further denied had made any disparaging remarks about petitioner or had shouted any expletives ather. Additionally, respondent denied discouraging petitionerfrom having friends.

Petitioner called several witness to testify as torespondent's mistreatment of petitioner, including petitioner'sbrother and sister-in-law. All of these witnesses testifiedrespondent cursed at petitioner and acted impatiently aroundpetitioner, expecting her to leave a restaurant when he wasready, without regard to petitioner's readiness. Respondentdenied all such testimony, claiming not to have seen several ofthe witnesses in as much as five years. Respondent called awitness of his own, who substantiated respondent's denials ofmistreatment of petitioner. Respondent further testified hewished to remain married to petitioner.

After hearing the evidence presented and continuing thetrial, on June 26, 2001, in a docket entry, the trial courtentered a judgment of dissolution, finding petitioner:

"has established by competent evidence that[respondent] on occasion treated her badly.[Petitioner] has established that said conduct had an adverse effect on her which isnecessary for a finding of mental cruelty."

The court directed counsel to prepare a bifurcated judgment orderand submit it to the court for approval.

The next day, June 27, 2001, respondent filed a motionto vacate the findings, for reconsideration, for an opportunityto be heard and for denial of entry of judgment, alleging therehad been no finding, pursuant to section 401(b) of the IllinoisMarriage and Dissolution of Marriage Act (Dissolution Act) (750ILCS 5/401(b) (West 2000)), that "appropriate circumstances"existed for the entry of a bifurcated judgment of dissolution. Critical to this assertion was the fact respondent had not had anopportunity to cross-examine petitioner. Upon this motion, thecourt delayed execution of the judgment to permit respondent tocross-examine petitioner and took both motions under advisement.

Pursuant to this order, an additional evidence deposition of petitioner was conducted on June 29, 2001. At thisdeposition, counsel for respondent was given a full and completeopportunity to question petitioner. Over the course of theexamination, petitioner again asserted her desire to be divorcedfrom respondent, stating he had been deliberately cruel throughconstant verbal abuse. Petitioner again asserted her allegationrespondent had purposefully neglected to give her the correctdosage of medicine.

After this additional deposition, respondent filed amotion for an independent mental and physical evaluation ofpetitioner, again claiming petitioner lacked the necessary"cognitive ability to make decisions regarding a dissolution ofher marriage to respondent." Respondent also named a board-certified geriatric psychiatrist to perform the evaluation. Petitioner opposed this motion by written response submitted onJuly 5, 2001.

The same day, July 5, 2001, the court entered a finalwritten order of dissolution, reserving all issues other thangrounds. Addressing the respondent's pending motions in aseparate order, the court took notice petitioner was out of thehospital and in a nursing home and was being kept alive at herrequest pending a dissolution of her marriage. The court thenreceived the June 29, 2001, evidence deposition of petitioner andstated the original finding as to grounds remained unchanged. Further, the court denied the respondent's motion for an independent medical evaluation, as well as the motions to vacate andreconsider.

Respondent then appealed to this court on July 6, 2001,making a motion for an accelerated docket on July 13, 2001. Thiscourt denied his motion, and on July 20, 2001, petitioner died. While the executrixes of petitioner's estate have been substituted for petitioner for purposes of this appeal, we referhereinafter to petitioner and the executrixes as "petitioner."

This appeal followed.

II. ANALYSIS

On appeal, respondent has raised three issues: (1) thedenial of the independent physical or mental examination constituted error, (2) the trial court erred in finding mental crueltyas grounds for the entry of dissolution, and (3) the entry of abifurcated judgment of dissolution was error. We disagree as toall three issues and affirm.

A. The Denial of an Independent Physical

or Mental Examination Was Proper

We first address respondent's contention the trialcourt's denial of the motion for an independent physical ormental examination was improper. Motions for an independentphysical or mental examination are generally brought underSupreme Court Rule 215(a), which provides:

"In any action in which the physical ormental condition of a party *** is in controversy, the court, upon notice and *** onmotion made within a reasonable time beforethe trial, may order the party to submit to aphysical or mental examination ***." 134Ill. 2d R. 215(a).

The provisions of this rule are not mandatory but, rather, vestbroad discretion in the trial court to determine whether aphysical examination should be ordered. Roberts v. Norfolk &Western Ry. Co., 229 Ill. App. 3d 706, 720-21, 593 N.E.2d 1144,1154 (1992). Thus, we review the trial court's decision to grantsuch an examination only for an abuse of discretion. Ford v.Herman, 316 Ill. App. 3d 726, 736, 737 N.E.2d 332, 341 (2000).

Under the facts of the instant case, we conclude thetrial court did not abuse its discretion in denying the motionfor an independent physical or mental examination. Respondent'smotion with respect to the independent examination was truly twomotions. The first, filed the day of trial, June 21, 2001, wasactually a motion for extension of time to retain an expertwitness and contained no allegations regarding petitioner'smental state. The actual motion pursuant to Rule 215(a) wasfiled nearly two weeks after the grounds hearing, on July 2,2001. This motion contained the barest of allegations: "uponinformation and belief, [p]etitioner lacks the cognitive abilityto make decisions regarding a dissolution *** and is unable totestify with any reliability."

A party moving for a physical or mental examination ofan adverse party bears the initial burden of establishing goodcause for the examination. Thompson v. Palos Community Hospital,254 Ill. App. 3d 836, 840, 627 N.E.2d 239, 242-43 (1993). Here,the only allegations that might have amounted to good cause underRule 215(a) were presented to the trial court after the court hadreceived two depositions of the petitioner, one of which had beenvideotaped. The function of the trier of fact is to determinecredibility of the witnesses, the weight to be given theirtestimony, and the inferences to be drawn from the evidence. People v. Bull, 185 Ill. 2d 179, 204, 705 N.E.2d 824, 837 (1998). Since the trial court had already judged the petitioner's credibility through the two depositions, we cannot say its refusal toorder the independent physical or mental examination was an abuseof discretion. The trial court could well have found no goodcause for the examination had been shown.

On appeal, respondent has persisted, arguing during theevidence depositions that petitioner "exhibited substantialconfusion and frailty," and the "host of drugs" petitioner wastaking limited her cognitive ability. Yet these allegations byrespondent stand unsupported by any other evidence in the record. No evidence was presented that any of the drugs administered topetitioner had an adverse effect on her clarity of thought. Infact, petitioner submitted the affidavit of the doctor whoprescribed the medications, wherein he indicated petitioner wasalert, oriented, and capable of making decisions. This affidavitwas further supported by the affidavit of a nurse responsible forpetitioner's primary care. Given these facts, we are not inclined to reverse the trial court's decision on respondent's bareallegation that petitioner appeared confused. See Thompson, 254Ill. App. 3d at 841, 627 N.E.2d at 244.

Similarly, a court may refuse a motion made underSupreme Court Rule 215(a) if it is not made "within a reasonabletime before the trial." 134 Ill. 2d R. 215(a). Here, respondent's motions for the independent physical or mental examination were made on June 21 and July 2, 2001. Yet respondent hadraised the issue of petitioner's competence from the outset ofthe case, arguing in a motion to dismiss filed on April 17, 2001,petitioner was not capable of making decisions on her legalstatus. If respondent desired the independent examination, themotion should have been pursued from the outset. The trial courtcould properly have disallowed the motions, especially in lightof the accelerated nature of the proceedings. In sum, the denialof the motions pursuant to Supreme Court Rule 215(a) was not anabuse of discretion.

B. The Trial Court Did Not Err in Finding Mental

Cruelty as Grounds for the Dissolution

Respondent next contends the trial court erred infinding respondent's mental cruelty as grounds for the dissolution. The trial court's decision on whether extreme mentalcruelty has been proved will not be overturned unless it isagainst the manifest weight of the evidence. In re Marriage ofReeder, 212 Ill. App. 3d 56, 58, 570 N.E.2d 876, 878 (1991). Indetermining whether the acts complained of amount to mentalcruelty, the facts of the particular case must be considered inlight of the parties' patterns of conduct, their respectiveemotional makeup, and the circumstances around which the complaint of conduct occurred. In re Marriage of Wade, 158 Ill.App. 3d 255, 265, 511 N.E.2d 156, 163 (1987). However, the trialcourt is to primarily consider the effect on the complainingparty. West v. West, 77 Ill. App. 3d 828, 830-31, 396 N.E.2d1382, 1384-85 (1979). In short, the court's function is not todetermine whether the respondent's conduct would have been cruelto a reasonable person or a person of average sensibilities butto determine whether the respondent's conduct was, in fact, cruelto the petitioner. See Reeder, 212 Ill. App. 3d at 59, 570N.E.2d at 878; Akin v. Akin, 125 Ill. App. 2d 159, 166, 260N.E.2d 481, 484 (1970).

The crux of petitioner's allegations was respondenttreated her badly. At both depositions, petitioner maintainedher allegation respondent had treated her poorly, mocking petitioner in front of others, shouting obscenities at her, andtelling her he wished she was dead. These allegations werecorroborated by several additional witnesses who were able toprovide additional examples of respondent's mistreatment ofpetitioner. Finally, petitioner alleged respondent had purposefully given her the wrong amount of medication. According topetitioner, all such behavior by respondent had a detrimentalimpact on her emotional and mental well-being. Respondentcountered all allegations by denying petitioner's version ofevents and tendering the testimony of a single witness who didlittle more than reiterate those denials.

While petitioner's allegations might not qualify asmental cruelty in other situations, the trial court viewed them,as it should have, in light of petitioner's terminally illstatus. The trial court was entitled to conclude subjecting anelderly, terminally ill woman to any form of hardship, as here,qualified as mental cruelty. Our courts have long held a widevariety of nonphysical acts and verbal abuse may constitutemental cruelty. See, e.g., Morris v. Morris, 70 Ill. App. 3d125, 127-28, 388 N.E.2d 129, 131 (1979) (husband's verbal abuseof ill wife just after surgery constituted mental cruelty); In remarriage of Borg, 96 Ill. App. 3d 282, 286, 421 N.E.2d 214, 1217(1981) (wife's verbal abuse of husband while recuperating fromheart attack constituted mental cruelty). Here, even the slightest verbal abuse of petitioner by respondent was exacerbated bypetitioner's failing health.

Here, the trial court concluded the preponderance ofthe evidence favored a finding of mental cruelty. We do notdisagree or find its decision to be against the manifest weightof the evidence. Clearly, by finding respondent guilty of mentalcruelty, the court found petitioner's testimony more credible. The court was in a much better position to make such a determination than this court. See Wade, 158 Ill. App. 3d at 265-66, 511N.E.2d at 163-64. Absent any clear evidence to the contrary, wewill not overturn such a finding.

Respondent has suggested petitioner's statements areinherently unreliable, owing to petitioner's declining health andmedications. We are not persuaded. While petitioner may havemisstated names or dates in the course of her two depositions,she never wavered in her allegations of respondent's cruelty. This struck the trial court as reliable and credible evidence,and we do not disagree. For these reasons, we affirm the trialcourt's decision with respect to grounds.

C. The Trial Court Did Not Err By

Entering a Bifurcated Judgment

Finally, respondent contends the trial court erred byentering the judgment of dissolution while reserving the otherissues. Such bifurcated judgments are controlled by section410(b) of the Dissolution Act, which provides:

"Judgment shall not be entered unless, to theextent it has jurisdiction to do so, the court hasconsidered, approved, reserved[,] or made provision for *** the maintenance of either spouse andthe disposition of property. The court may entera judgment for dissolution that reserves any ofthese issues either upon (i) agreement of theparties, or (ii) motion of either party and afinding by the court that appropriatecircumstances exist." 750 ILCS 5/401(b) (West2000).

The decision to enter a bifurcated judgment is entitled toconsiderable deference and will not be disturbed on appeal absentan abuse of discretion. See, e.g., In re Marriage of Kenik, 181Ill. App. 3d 266, 278, 536 N.E.2d 982, 989 (1989).

Respondent's main contention, then, is no "appropriatecircumstances" here warranted the entry of a bifurcated judgmentof dissolution. As with any standard as nebulous as "appropriatecircumstances," no exhaustive list of facts justifying a bifurcated judgment exists. Nonetheless, our supreme court hasidentified the following "appropriate circumstances": (1) lack ofin personam jurisdiction, (2) if a party would be unable to paycourt-ordered child support or maintenance, (3) if the court hasset aside a fund for child support, or (4) if children do notreside with either parent. In re Marriage of Cohn, 93 Ill. 2d190, 199, 443 N.E.2d 541, 545 (1982). Other reasons "for bifurcation must be of the same caliber as those enumerated in Cohn." In re Marriage of Bogan, 116 Ill. 2d 72, 80, 506 N.E.2d 1243,1246 (1986).

In 1990, this court added to this nonexhaustive list inIn re Marriage of Blount, 197 Ill. App. 3d 816, 555 N.E.2d 114(1990). In Blount, the petitioner was an elderly, very ill wife,whose depressed mental condition was aggravated by her fear thatrespondent husband would obtain some of her assets on her death. Both parties had maintained largely separate assets, no childrenexisted, and a premarital agreement governed the distribution ofthe parties' assets. On appeal of the entry of a bifurcatedjudgment of dissolution, we held a benefit to the emotionalstatus of an elderly, very ill wife qualified as an "appropriatecircumstance" for the entry of bifurcated judgment of divorce. Blount, 197 Ill. App. 3d at 820, 555 N.E.2d at 116-17.

We do not see this case as presenting a differentsituation. Petitioner wished to be divorced from respondentprior to her death, so she might dispose of her half of themarital assets according to her wishes. This desire was furtherreflected by petitioner's changed will, in which she intentionally made no provision for respondent but made numerous specificbequests of her personal property.

Respondent suggests the entry of the bifurcated judgment will promote the entanglement of the rights of third parties, in contravention of clear dicta in Cohn. Therein, oursupreme court held the entry of a bifurcated judgment presentspotential complications insofar as "the court could likely berequired to adjudicate marital-property rights have becomeentangled with the supervening rights of third parties, includingsubsequent spouses." Cohn, 93 Ill. 2d at 198-99, 443 N.E.2d at545. Further, the court in Cohn recognized the entry of ajudgment of dissolution prior to property disposition "wouldcomplicate, rather than simplify, matters with respect to therights of a surviving spouse in the event of an interveningdeath." Cohn, 93 Ill. 2d at 199, 443 N.E.2d at 545. Accordingto respondent, this constitutes a clear policy of our supremecourt disfavoring bifurcated judgments of dissolution in anysituation.

Respondent's argument ignores several key facts of thiscase. First, and not insignificantly, the supreme court in Cohnwas faced with the issues of child support and maintenance, whichthe trial court there had ignored by entering a bifurcatedjudgment. Cohn, 93 Ill. 2d at 193-95, 443 N.E.2d at 542-43. Inthe instant case, such issues were irrelevant, as petitioner wasin the terminal stage of her life and young children were notinvolved. The impetus to avoid entering a judgment of dissolution before making a final settlement of all ancillary matterswas simply not as strong in this case as it was in Cohn.

Second, respondent's rights at this stage of thedissolution proceedings remain relatively unaffected. Our onlytask at this stage is to assess the propriety of the entry of thebifurcated judgment. Kenik, 181 Ill. App. 3d at 270, 536 N.E.2dat 984. All other issues ancillary to the dissolution claim mustbe disposed of by the trial court before any are susceptible toappeal. Kenik, 181 Ill. App. 3d at 270, 536 N.E.2d at 984,citing In re Marriage of Leopando, 96 Ill. 2d 114, 119, 449N.E.2d 137, 140 (1983). As the finder of fact, the trial courtwas in the best position to determine the effect of the bifurcation on the entanglement of the rights of third parties, and wewill not upset the trial court's considerable discretion tobifurcate.

Moreover, we are persuaded, on policy grounds, ourprevious decision in Blount is still correct. In the intervening11 years since we decided Blount, numerous other jurisdictionshave addressed the issue of whether the impending death of aparty is an "appropriate circumstance" for the entry of a bifurcated judgment of dissolution. All have held much as we have. Barnett v. Barnett, 743 So. 2d 105, 108 (Fla. App. 1999), aff'd,768 So. 2d 441 (Fla. 2000) ("[t]he impending death or terminalillness of a party is the type of exceptional circumstance ***which can justify bifurcation of a dissolution proceeding");Estate of Burford v. Burford, 935 P.2d 943, 945 (Colo. 1997)(exceptional circumstances warranting bifurcation existed whenthe husband was in poor health and would probably die before apermanent orders hearing was conducted); Estate of Pinkerton v.Pinkerton, 646 A.2d 1184, 1185 (Pa. Super. 1994) (trial court didnot err in entering bifurcated judgment where all parties and thecourt were aware wife was dying).

We are particularly persuaded of the appropriateness ofthe bifurcated judgment of dissolution by the Dissolution Actitself. Under the statute providing for a bifurcation of divorceproceedings, the death of a party does not abate the action. 750ILCS 5/401(b) (West 2000). While this statute does not give aspouse's estate the right to pursue a divorce action, it doesprovide where a judgment of dissolution has been entered prior todeath, the action will not instantly become a probate matter. See In re Marriage of Davies, 95 Ill. 2d 474, 479-80, 448 N.E.2d882, 884-85 (1983). Clearly, our legislature contemplated justthe situation presented in the instant case, and it intended thedesire of a party seeking a divorce not be frustrated by thesimple fact of the party's death after the entry of the judgmentof dissolution.

Yet, we are aware of the implications of our decision. To hold as we do today encourages spouses in the end stages oflife to seek a dissolution of marriage in the hopes of increasingthe amount of their estate for their heirs. But to hold otherwise encourages the surviving spouse to delay the divorce proceedings as long as possible to avoid the termination of theirrights as surviving spouse.

Thus, we limit our decision today to the facts of thecase at bar, and we offer no opinion as to the propriety of abifurcated judgment of dissolution in anticipation of the deathof a party in all circumstances. As we have noted, the decisionto bifurcate a judgment of dissolution of marriage rests withinthe sound discretion of the trial court, and we do not intend toprovide any guidelines for a trial court in making its decision. Similarly, we acknowledge the continued validity of our supremecourt's decision in Cohn and its suggested limits on the entry ofa bifurcated judgment.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

TURNER and STEIGMANN, JJ., concur.