Opinion
1-19-2344
11-04-2021
In re MARRIAGE OF DEMETRIOS KOTTARAS, Petitioner-Appellee, and DEMETRIA KOTTARAS, n/k/a DEMETRIA PAPADOPOULOS, Respondent-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. No. 11 D 4468 Honorable David C. Haracz, Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Justices Gordon and Martin concurred in the judgment.
ORDER
LAMPKIN JUSTICE
¶ 1 Held: In a matter involving a post-dissolution of marriage order, the trial court did not abuse its discretion when it struck the ex-wife's petition to review, extend and increase her maintenance based on her failure to comply with court-ordered discovery.
¶ 2 In a post-dissolution of marriage proceeding, respondent-appellant Demetria Kottaras, n/k/a Demetria Papadopoulos (Papadopoulos), filed a petition to review, extend and increase her maintenance and child support. After her petition was scheduled for a hearing, petitioner-appellee Demetrios Kottaras (Kottaras) moved for discovery sanctions based on Papadopoulos's failure to comply with discovery orders. The circuit court granted Kottaras's motion and struck Papadopoulos's petition to review her maintenance, terminated Kottaras's obligation to pay her maintenance, and reserved ruling on the issues of child support and reimbursement of temporary maintenance. Papadopoulos appealed.
¶ 3 On appeal, Papadopoulos argues that the trial court erred when it struck her petition because (1) the imposed discovery sanction either denied her due process or was an abuse of discretion, (2) the court ruled on a dispositive motion without giving her time to retain new counsel, and (3) her erroneous belief that an automatic bankruptcy stay was in effect mitigated her failure to comply with the court's discovery order.
¶ 4 For the reasons that follow, we affirm the judgment of the trial court.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
¶ 5 I. BACKGROUND
¶ 6 In May 2011, Kottaras filed a petition for dissolution of marriage. He and Papadopoulos had married in 2000 and had two children, who were born in 2008 and 2010. In July 2014, the trial court entered a judgment of dissolution of marriage that incorporated the parties' marital settlement agreement and their joint parenting agreement and custody judgment. The marital settlement agreement provided that, in lieu of separate maintenance and child support, Kottaras would pay unallocated maintenance/support of $5000 per month for 48 months. This provision allowed Papadopoulos to request an extension of maintenance if she filed a petition for review within four years.
As of January 1, 2019, the option of unallocated maintenance was eliminated from the Illinois Marriage and Dissolution of Marriage Act, except in regard to enforcing prior agreements. See Pub. Act 100-923, § 10 (eff. Jan. 1, 2019) (amending 750 ILCS 5/504(b-4)).
¶ 7 In February 2016, the court granted Kottaras's motion for court-ordered mediation. In May 2016, the court ordered the parties to schedule four sessions with the mediator and provided that neither party could cancel or reschedule the sessions without either leave of court or the parties' written agreement. After mediation failed to resolve the parties' disputes regarding parenting issues, the court in March 2017 appointed, over Papadopoulos's objection, a parenting coordinator, with the costs to be split evenly between the parties. The court also ordered the children's representative to draft an order setting forth the issues of the parties' use of the parenting coordinator. Thereafter, Kottaras moved the court to enter the draft parenting coordinator order, arguing that Papadopoulos was delaying the process.
¶ 8 On June 5, 2017, the court entered the parenting coordinator order as drafted and revised by the children's representative.
¶ 9 In late July 2017, Kottaras filed an emergency petition for rule to show cause, for a finding of indirect civil contempt, and for sanctions, arguing that Papadopoulos willfully violated the court's June 2017 parenting coordinator order by failing to adequately communicate about and cooperate with issues involving the parties' children. The next day, the court, inter alia, issued a rule, returnable on a future date, for Papadopoulos to show cause why she should not be held in contempt, granted Kottaras leave to schedule a medical assessment for their child, set a hearing on the matter of the child's assessment for July 31, 2017, set a briefing schedule for the remaining issues, and granted Papadopoulos's counsel, Berger Schatz, leave to present their motion to withdraw
¶ 10 On July 31, 2017, the court entered an agreed order that, inter alia, (1) noted Papadopoulos's representations that she had partially paid her portion of the parenting coordinator's fees and scheduled her initial individual appointment with the coordinator, (2) granted Kottaras leave to bring the parties' child for a medical assessment, (3) granted Papadopoulos's counsel leave to withdraw and granted Papadopoulos 21 days to obtain new counsel, and (4) granted Papadopoulos 28 days to respond to Kottaras's emergency petition for rule to show cause. Thereafter, the court granted Papadopoulos, represented by Katz & Stefani, LLC, an additional 28 days to respond to Kottaras's petition for rule to show cause.
¶ 11 In her November 2017 response, Papadopoulos denied the allegations of wrongdoing and argued, inter alia, that (1) the parenting coordinator did not consult her and made the determination that the issue was an emergency based on improper facts, (2) Kottaras failed to act in good faith during mediation, and (3) Kottaras caused delays and communication problems by sending responses to an erroneous e-mail address for Papadopoulos.
¶ 12 The trial court ordered Kottaras's petition for rule to show cause "off call" and denied his request for attorney fees and costs in connection with his petition, finding that Papadopoulos's noncompliance with the court's June 2017 parenting coordinator order was not willful or contumacious.
¶ 13 In April 2018, Kottaras moved the court to modify the June 2017 parenting coordinator order and appoint a therapist for the parties' children. In July 2018, the court denied Kottaras's request to expand the coordinator's authority and continued the matter of the court's selection of a therapist.
¶ 14 Also in July 2018, Papadopoulos timely filed her petition to review, extend and increase the unallocated maintenance/support paid by Kottaras, which is the matter on appeal before this court. She alleged that Kottaras had an annual salary of $186,000 and additional income from teaching at a law school and from a pension. She also alleged that her income as a parttime office assistant, pension income from Kottaras, and current $5000 monthly maintenance/support failed to cover her and the children's expenses. She asked the court to continue her unallocated maintenance/support and increase it to at least $7000 per month.
¶ 15 In his response, Kottaras alleged that (1) Papadopoulos failed to show that she made reasonable efforts toward her obligation to become self-supporting, (2) application of the statutory guidelines for calculating the duration of her maintenance award would have entitled her to receive a maintenance award for a maximum of four years and eight months, (3) he commenced paying unallocated maintenance/support on March 1, 2013, pursuant to the court's agreed order of February 27, 2013, and (4) her maintenance award could have been terminated as far back as October 2017. He stated that Papadopoulos failed to tender the requisite financial affidavit to support her petition and asked the court to deny her petition.
¶ 16 After Papadopoulos filed an emergency motion for temporary support and her financial affidavit, the trial court on October 23, 2018, ordered Kottaras to pay $5000 monthly in temporary unallocated maintenance/support until a hearing was held on Papadopoulos's petition, which the court scheduled for January 31, 2019.
¶ 17 On October 29, 2018, Papadopoulos petitioned for contribution to her interim attorney fees and costs in the amount owed through the date of the hearing on her petition plus an additional $15,000 for prospective attorney fees and costs. She alleged that she had incurred over $122,000 in debt and was unable to pay that indebtedness based on her limited income and lack of assets; she owed over $28,000 in attorney fees to Katz & Stefani, LLC, a portion of which were incurred for post-decree matters unrelated to her petition to review; and Kottaras had substantial income, assets and earning ability to pay her incurred and prospective attorney fees and costs and thereby enable her to participate in the litigation on an equal footing with him.
¶ 18 In his response, Kottaras argued that the law did not support Papadopoulos's claim for contribution because her financial limitations were self-imposed since she had made inadequate efforts to become economically self-supporting and incurred substantial indebtedness by acting irresponsibly.
¶ 19 On November 13, 2018, Kottaras petitioned the court for a rule to show cause, a finding of indirect civil contempt, and for sanctions based on Papadopoulos's failure to adequately cooperate and communicate about issues involving the parties' children in violation of the court's June 2017 parenting coordinator order. Specifically, Kottaras alleged that Papadopoulos refused to pay her modest portion of the coordinator's fees and thereby precluded Kottaras from having access to the coordinator to resolve the parties' parenting disputes. Kottaras also alleged that Papadopoulos continued her pattern of obstructing the coordinator's involvement by insisting that her counsel be present during any meetings with the coordinator even though the coordinator had offered to address Papadopoulos's concerns regarding the joint and in-person meetings with Kottaras by meeting with the parties in separate rooms. Further, Papadopoulos had paid the coordinator only $100 to date and owed a $1,844.25 balance.
¶ 20 In this petition, Kottaras asked the court to (1) issue a rule returnable instanter for Papadopoulos to show cause why she should not be held in contempt, (2) require her to pay a monetary penalty for her willful and contumacious violation of the June 2017 parenting coordinator order, (3) require her to pay the coordinator the outstanding balance of $1,844.25 or grant Kottaras leave to advance that amount to the coordinator and deduct it from his obligation to pay Papadopoulos temporary unallocated support, and (4) require Papadopoulos to pay the attorney fees and costs Kottaras incurred in preparing, presenting and prosecuting this petition.
¶ 21 On December 5, 2018, the court ordered that a rule would issue against Papadopoulos to show cause why she should not be held in contempt of court for her willful failure to obey the court's June 2017 parenting coordinator order, which had required her to pay her portion of the coordinator's fees. The trial court scheduled a January 31, 2019 hearing on Kottaras's petition for rule to show cause, and service of this order was made personally in open court.
¶ 22 On December 13, 2018, the court set a December 18, 2018 hearing on Berger Schatz's motion to withdraw as Papadopoulos's counsel.
¶ 23 On December 18, 2018, the court granted Berger Schatz leave to withdraw as counsel, ordered Papadopoulos to file her supplemental appearance with the clerk in 21 days, and extended her deadline to respond to Kottaras's petition for rule to show cause to January 22, 2019.
¶ 24 On December 31, 2018, Papadopoulos filed a chapter 7 bankruptcy case, No. 18-35899, in the United States Bankruptcy Court for the Northern District of Illinois.
¶ 25 On January 16, 2019, counsel Dheanna Fikaris filed an appearance on behalf of Papadopoulos.
¶ 26 On January 18, 2019, Kottaras served a notice of Papadopoulos's discovery deposition, which would be held on January 25, 2019. This notice included a rider requesting, inter alia, all documents concerning her tax returns, income, compensation, personal finances, bank accounts, credit cards, securities, and real estate. On March 14, 2019, Kottaras served on Papadopoulos interrogatories and a request to produce documents. On April 5, 2019, Kottaras sent Papadopoulos a letter pursuant to Illinois Supreme Court Rule 201 (k) (eff. May 29, 2014), asking that she comply with his discovery requests within seven days, but he received no response.
¶ 27 On May 14, 2019, Kottaras filed an emergency motion for appointment of a children's therapist, which stated that the parties' child was exhibiting potentially serious self-harming behavior and expressing potential suicidal ideation. Kottaras alleged that Papadopoulos refused to permit the selection of a therapist and prevented the parties' children from engaging in therapy.
¶ 28 On May 16, 2019, Kottaras moved to compel production of documents and for sanctions under Illinois Supreme Court Rule 219(c) (eff. July 1, 2002), arguing that Papadopoulos's failure to provide complete discovery responses prevented him from preparing for trial on her petition to review and extend her maintenance. On May 20, 2019, Kottaras presented that motion to compel, but the court, in an abundance of caution on account of Papadopoulos's pending bankruptcy petition, issued an order that entered and continued the motion to compel.
¶ 29 On May 29, 2019, the court ordered the parties to promptly enroll their children in regular individual therapy with a designated therapist. On June 28, 2019, the court entered and continued Kottaras's emergency motion and ordered the parties to propose to the children's representative candidates for their children's individual therapy.
¶ 30 On July 31, 2019, the trial court issued an order, which stated that (1) Papadopoulos represented that she had filed a petition for bankruptcy, (2) matters concerning the division or allocation of the parties' property and debts were stayed pending resolution of the bankruptcy matter, (3) and matters concerning custody, visitation, and the modification of child support and maintenance were not subject to the automatic stay of the bankruptcy court.
¶ 31 On September 24, 2019, the court ordered Papadopoulos to fully comply with Kottaras's discovery requests by October 15, 2019, set a status hearing on discovery for October 24, 2019, and set Papadopoulos's petition to review, extend and increase her maintenance for hearing on November 19, 2019. On October 24, 2019, the court extended Papadopoulos's discovery compliance deadline to October 31, 2019, and set a status hearing for November 1, 2019.
¶ 32 On October 29, 2019, Fikaris filed a notice of motion to appear on November 1, 2019, to present her motion to withdraw as Papadopoulos's counsel.
¶ 33 On October 30, 2019, Kottaras petitioned for a rule to show cause, a finding of indirect civil contempt, and discovery sanctions under Rule 219(c), stating that Papadopoulos failed to appear for her scheduled January 25, 2019 deposition and failed to communicate her intention not to appear. Kottaras also argued that Papadopoulos failed to comply with the court's September 24, 2019 order to fully comply with his discovery requests and had "provided no response of any kind." Kottaras asked the court to (1) bar Papadopoulos from maintaining any claims or testifying about any issue related to the issues for which Kottaras had sought discovery, and (2) strike her petition to review and extend maintenance and hold her in default regarding that petition.
¶ 34 On November 1, 2019, the court held a hearing on the status of the court-ordered discovery, Kottaras's motion for discovery sanctions, and Papadopoulos's counsel's motion to withdraw. Papadopoulos was present and still represented by Fikaris during the hearing. Papadopoulos argued that Fikaris was responsible for the discovery noncompliance, and Fikaris strongly contested that accusation. Papadopoulos produced in open court some discovery responses and documents. Kottaras's counsel reviewed the produced documents and told the court that it was very deficient and did not even include Papadopoulos's job diaries, income tax returns, W-2 forms, pay stubs, bank records or credit card statements. The court asked Papadopoulos, "You don't even have any bank statements?" Papadopoulos replied that of course she did but she "didn't have time to make all of those copies before this morning."
¶ 35 After hearing argument on the motions, the trial entered a written order that (1) granted Kottaras's petition for discovery sanctions, struck Papadopoulos's petition to review and extend her maintenance, struck the November 19, 2019 hearing date, and terminated finally and forever Kottaras's obligation to pay maintenance of any kind to Papadopoulos, (2) granted Fikaris's motion to withdraw as Papadopoulos's counsel, and (3) set a status hearing on entry of an order setting Kottaras's child support obligation based on the parties' financial affidavits and reimbursing Kottaras for his temporary maintenance payments to Papadopoulos without prejudice, which issue was reserved.
¶ 36 On November 15, 2019, Papadopoulos appealed the November 1, 2019 order. Kottaras moved to dismiss the appeal based on lack of jurisdiction, arguing that several matters remained pending in the trial court after the November 1, 2019 order and the trial court did not make the requisite finding under Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that would have enabled this court to review Papadopoulos's interlocutory appeal.
¶ 37 In her response, Papadopoulos argued that this court had jurisdiction over her appeal because (1) the November 1, 2019 order constituted an involuntary dismissal of an action and operated as an adjudication on the merits, (2) the issues of child support and maintenance reimbursement were not ripe for decision by the trial court because those issues were dependent on the outcome of her appeal, and (3) her bankruptcy filing divested the trial court of jurisdiction to adjudicate the remaining issues involving fee petitions.
¶ 38 This court ruled that Kottaras's motion to dismiss for lack of jurisdiction would be taken with the case. On March 31, 2021, this court dismissed Papadopoulos's appeal due to lack of jurisdiction, finding that other claims remained pending before the trial court, which did not make a finding under Rule 304(a) that there was no just reason to delay an appeal. On April 19, 2021, Papadopoulos petitioned this court for a rehearing, stating that she had obtained the necessary finding under Rule 304(a) and requesting leave to supplement the record. On May 21, 2021, this court granted her motion to supplement the record. On October 14, 2021, this court allowed her petition for rehearing. We now address the merits of her appeal.
¶ 39 II. ANALYSIS
¶ 40 On appeal, Papadopoulos argues that the trial court erred when it struck her petition to review, extend and increase her maintenance because (1) the court either violated her due process rights or abused its discretion by imposing the discovery sanction, (2) the court failed to give her 21 days to obtain new counsel and erroneously imposed dispositive sanctions on her on the same day her attorney withdrew as counsel, and (3) her failure to comply with the court's discovery order was mitigated by her erroneous belief that an automatic bankruptcy stay remained in effect.
¶ 41 A. Discovery Sanction
¶ 42 Papadopoulos argues first that the trial court violated her right to procedural due process and imposed improper sanctions because Kottaras's petition for rule to show cause sought two separate forms of relief-a finding of indirect civil contempt and Rule 219(c) discovery sanctions-in one pleading without separating those theories of relief into separate counts. According to Papadopoulos, conflating the two forms of relief violated her right to due process and resulted in the imposition of improper dispositive sanctions because those two theories of relief require entirely different adjudicative processes and legal analyses. She asserts that the trial court improperly adjudicated Kottaras's petition for rule instanter and thereby infringed on her right to procedural due process because she was denied notice of the charges, and the time and place of the contempt hearing.
¶ 43 This argument lacks merit. The record clearly establishes that the trial court did not hold Papadopoulos in contempt but rather addressed her discovery noncompliance under the rubric of a Rule 219(c) motion for sanctions.
¶ 44 Papadopoulos argues, in the alternative, that if the court-imposed sanctions pursuant to only Rule 219(c), it abused its discretion because striking her petition to review and extend her maintenance with prejudice was inconsistent with underlying principles of justice. She argues that the circuit court's sanction was too harsh under the circumstances, especially where the noncompliance with the production order was due to the deterioration of her attorney-client relationship. She claims that she had no history of discovery noncompliance before Fikaris's representation and argues that Fikaris was substantially responsible for the noncompliance.
¶ 45 Papadopoulos asserts that despite the breakdown in her attorney-client relationship she acted quickly to prepare her responses with only seven days' notice and was not warned about the possibility of entry of an order of default or dismissal. She argues that the trial court failed to consider certain mitigating factors before striking her petition. Specifically, she produced in open court that day her updated financial affidavit, interrogatory answers, an itemized response to the notice to produce, a copy of her bankruptcy notice, and a copy of the lease of her current residence. She also agreed to provide additional documents. She contends that, although tardy, her production in court that day was in good faith and substantially compliant with the outstanding requests. She argues that the trial court should have recognized the mitigating factors for her noncompliance, allowed her additional time to comply, and given her notice of the potential for her claim to be stricken before "lowering the boom."
¶ 46 Rule 219(c) authorizes a trial court to enter any order that is "just" to remedy a party's unreasonable failure to comply with the supreme court's discovery rules or with an order issued under those rules. Ill. S.Ct. R. 219(c). A "just" order of sanctions under Rule 219(c) is one which, "to the degree possible, insures both discovery and a trial on the merits." Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 123 (1998). "When imposing sanctions, the court's purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party." Id.
¶ 47 However, a just order includes, among others, "that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or that any portion of his pleadings relating to that issue be stricken." Ill. S.Ct. R. 219(c). While it is clear that the purpose of sanctions is to accomplish the goal of discovery, at the same time, courts have an interest in promoting the unimpeded flow of litigation. This naturally requires that careful attention be paid to the prompt and orderly handling of discovery. Fine Arts Distributors v. Hilton Hotel Corporation, 89 Ill.App.3d 881, 884 (1980). "Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances." Buehler v. Whalen, 70 Ill.2d 51, 67 (1977). "Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation." Harris v. Harris, 196 Ill.App.3d 815, 820 (1990) (citing Lavaja v. Carter, 153 Ill.App.3d 317 (1987) (the court struck the defendant's pleadings and entered a default judgment after the court ordered him to produce documents on two separate occasions and he agreed to comply but then produced no documents); Amoco Oil Co. v. Segall, 118 Ill.App.3d 1002 (1983) (failure to comply with orders to appear for discovery deposition resulted in striking of defendant's counterclaim and judgment on issue of liability); Campen v. Executive House Hotel, 105 Ill.App.3d 576 (1982) (failure to disclose the name of a witness in interrogatories resulted in exclusion of four defense witnesses and jury instructed on unfavorable inference to be drawn from withheld evidence)).
¶ 48 The imposition of sanctions for failure to comply with discovery rules and orders, and decisions regarding what type of sanction to impose, are matters within the broad discretion of the trial court. Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 193-94 (1993). We may reverse a trial court's imposition of a particular sanction only when the record establishes a clear abuse of discretion. Shimanovsky, 181 Ill.2d at 123; Delvecchio, 255 Ill.App.3d at 193-94. As the Illinois Supreme Court has noted, this is "the most deferential standard of review available with the exception of no review at all." (Internal quotation marks omitted.) People v. Coleman, 183 Ill.2d 366, 387 (1998). A trial court abuses its discretion only when its decision is "arbitrary, fanciful or unreasonable [citation] or where no reasonable person would agree with the position adopted by the trial court." People v. Becker, 239 Ill.2d 215, 234 (2010).
¶ 49 When the circuit court imposes a sanction pursuant to Rule 219(c), it "shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order." Id. The purpose of the specificity requirement "is to allow the reviewing court to make an informed and reasoned review of the decision to impose sanctions." Kellett v. Roberts, 276 Ill.App.3d 164, 172 (1995). However, despite the language of Rule 219(c), Illinois courts "have upheld sanctions under Rule 219(c) even where a circuit court has failed to specifically set out any of its findings" in a written order. Peal v. Lee, 403 Ill.App.3d 197, 206 (2010); see also Glover v. Barbosa, 344 Ill.App.3d 58, 63 (2003) (finding "a court's failure to set out the grounds for sanctions is not per se reversible error").
¶ 50 In this case, while the circuit court did not explicitly specify in its written order its reasons or basis for striking Papadopoulos's petition to review, extend and increase her maintenance, we have a bystander's report of the discovery sanction hearing and thus can sufficiently deduce the court's reasons and basis for imposing a sanction that struck Papadopoulos's petition. Moreover, even without the bystander's report, we could sufficiently deduce the court's rationale based on Kottaras's motion requesting sanctions. See Jackson v. Mount Pisgah Missionary Baptist Church Deacon Board, 2016 IL App (1st) 143045, ¶ 61 (where the circuit court imposed a sanction "pursuant to defendants' written motion" and the sanction was supported by the record, the court's failure to specify its reasons for the sanction in a written order was not reversible error); Glover, 344 Ill.App.3d at 63 (finding that, because a sanction was imposed pursuant to a plaintiff's written motion, the reviewing court could "assume that the reasons for the [sanction] are those set out in [the] plaintiff's motion, absent contrary evidence of record"). Because we can review the reasons and basis for the court's sanction based on the bystander's report and Kottaras's motion requesting sanctions, the circuit court did not commit reversible error by failing to explicitly specify its reasons for striking Papadopoulos's petition in its written order.
¶ 51 Under Rule 219(c), when a party fails to comply with discovery or a court production order, the circuit court may dismiss the offending party's lawsuit with prejudice. Ill. S.Ct. R. 219(c) (v). Generally, before imposing a sanction, the court should consider various factors, such as: (1) the nature of the evidence being sought; (2) the diligence of the adverse party in seeking discovery; (3) the timeliness of the adverse party's objection to the evidence; (4) the surprise to the adverse party; (5) the prejudicial effect of the evidence in question; and (6) the good faith of the party offering the evidence. Locasto v. City of Chicago, 2014 IL App (1st) 113576, ¶ 26. No single factor is determinative, as each scenario presents its own set of unique facts. Id.
¶ 52 Additionally, because dismissing an offending party's claim with prejudice is arguably the most severe sanction the circuit court can impose, reviewing courts have suggested that the circuit court consider four additional factors before imposing such a drastic sanction. Id. ¶¶ 28, 35. Those are: (1) the degree of personal responsibility of the party for the noncompliance; (2) the previous level of compliance with discovery and sanctions orders; (3) whether less severe measures are available or, based on the record, would be futile; and (4) whether the offending party has been previously warned about the possibility of a dismissal with prejudice. Id. ¶ 35. When considering these factors, the court must also keep in mind that a" [dismissal of a cause of action for failure to abide by court orders is justified only when the party dismissed has shown a deliberate and contumacious disregard for the court's authority." Sander v. Dow Chemical Co., 166 Ill.2d 48, 68 (1995).
¶ 53 Although the circuit court never explicitly referred to these factors, the court clearly considered the important nature of the evidence being sought. The November 19, 2019 hearing date on Papadopoulos's petition to increase her maintenance/support from $5000 to $7000 a month was fast approaching, and Kottaras could not prepare for that hearing and respond to Papadopoulos's amended financial affidavit without reviewing documents regarding her job search and finances. Kottaras had been diligent in seeking that discovery. He served on Papadopoulos notice of her deposition scheduled for January 25, 2019, filed his initial discovery requests on January 18 and March 4, 2019, sent her an April 5, 2019 letter requesting her voluntary compliance, and then filed his motion to compel in May 2019. Papadopoulos, however, never offered any explanation for her failure to appear for her deposition and did not raise specific objections to the requested discovery until the November 1, 2019 discovery sanction hearing.
¶ 54 The partial production Papadopoulos presented in open court on November 1, 2019, which consisted of her resume, the lease of her current residence, the notice of her bankruptcy filing, and her amended financial affidavit, was clearly deficient. The crucial missing documents included her income tax returns, W-2 forms, bank records, credit card statements and job diaries. Furthermore, her answers to the interrogatories and document requests included responses that objected on grounds of relevance, or stated that documents either were not in her possession or were forthcoming, her investigation was continuing, or the information was forthcoming or to be determined. She told the judge at the sanction hearing that she had the requested bank statements but did not have time to make the copies on the morning of the hearing. The record does not indicate that she ever tried to comply with the court-ordered discovery by producing the missing items and moving within 30 days to vacate the order striking her petition.
¶ 55 Furthermore, we do not agree with Papadopoulos that her noncompliance with the court-ordered discovery was due to her attorney's alleged inaction and lack of communication. Counsel could not have been in possession of the requested financial documents unless Papadopoulos had gathered the documents and supplied them to counsel. Thus, Papadopoulos bears full responsibility for the noncompliance, and her failure to copy the items in her possession shows her disregard of the trial court's orders for discovery compliance.
¶ 56 Papadopoulos's noncompliance on November 1, 2019, with the court-ordered discovery was not her first act of defiance, as she had already defied the September 24 and October 24 court orders to fully comply with Kottaras's discovery requests. She also failed, without offering any explanation, to appear for her deposition. In addition, her failure to cooperate with the drafting of the June 2017 parenting coordinator order and comply with her obligations under that order to cooperate with issues involving the parties' children, pay her portion of the coordinator's fees and schedule her initial interview with the coordinator resulted in the court twice issuing a rule against her to show cause as to why she should not be held in contempt.
¶ 57 Papadopoulos lost credibility with the trial court as a result of her violations of those prior court orders and her submission at the November 1, 2019 sanction hearing of her amended financial affidavit without producing the necessary supporting financial records which were in her possession. Her repeated defiance of the court's orders showed a deliberate and contumacious disregard of the court's authority and indicated that her behavior would likely continue. See Sander, 166 Ill.2d at 69 (finding that, "[w]here it becomes apparent that a party has willfully disregarded the authority of the court, and such disregard is likely to continue," the circuit court is justified in dismissing a lawsuit with prejudice as a sanction). Against the backdrop of this conduct, the circuit court simply had enough of the games being played by Papadopoulos when she once again failed to comply with the production order, this time only 18 days before the scheduled hearing on her petition. At the November 1, 2019 sanction hearing, the trial judge asked Papadopoulos, "You don't even have any bank statements?" This remark by the trial judge, which showed his incredulity at Papadopoulos's blatant noncompliance, indicated that the court believed that giving Papadopoulos another discovery deadline would have been futile. A monetary fine also would have been futile since Papadopoulos had already failed to comply with the court order to pay her portion of the coordinator's fees, and claimed she was without funds.
¶ 58 Papadopoulos compares her circumstances to those in Locasto, 2014 IL App (1st) 113576, ¶¶ 41-42, where the appellate court reversed the circuit court's entry of a default judgment against the defendants as a sanction because the "court never warned [them] that their failure to comply could result in the sanction of 'last resort.'" Papadopoulos, however, cannot establish that the trial court did not warn her of the consequences of further discovery noncompliance at the proceedings on September 24 and October 24, 2019. The only transcript or bystander's report in the record pertains to the November 1, 2019 sanction hearing. Specifically, there is no transcript or bystander's report of the September 24 and October 24, 2019 proceedings, where the court ordered Papadopoulos to fully comply with Kottaras's discovery requests. As the appellant, Papadopoulos has the burden to present a sufficiently complete record of the proceedings at trial to support her claim of error on appeal, and in the absence of such a record on appeal, this court presumes that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984). Any doubts arising from an incomplete record are resolved against the appellant. Id. at 392. Furthermore, this case is distinguishable from Locasto, where the plaintiff's request for a default judgment was the first time the court was aware of the defendants' dilatory discovery practices. See Locasto, 2014 IL App (1st) ¶¶ 38-40, 45. Here, in contrast, the court knew in May 2019 that Papadopoulos had failed to respond to Kottaras's discovery requests, ordered her on September 24, 2019, to fully comply with the discovery requests by October 15, 2019, and then extended that deadline to October 31, 2019. Clearly, the court had given Papadopoulos multiple opportunities to comply with its discovery order. The record before us does not show that Papadopoulos has ever complied with the discovery request.
¶ 59 The court gave Papadopoulos multiple opportunities to conduct herself appropriately, and she did not offer a cogent explanation for her noncompliance. Whereas the circumstances in Locasto did not warrant a default judgment without prior warning, the same cannot be said for this case, where the striking of Papadopoulos's petition was justified. Her partial production of the court-ordered documents was substantially deficient, and it is apparent that she presented some documents at the last possible moment and only in hopes of escaping the default sanction. The record here belies any argument that her conduct was anything but deliberate and in direct defiance of the court's orders. Given the history of this case, in particular Papadopoulos's lack of cooperation on multiple occasions and her repeated violations of court orders, we cannot say that the circuit court acted unreasonably when it struck with prejudice her petition to review, extend and increase her maintenance as a discovery sanction. Accordingly, the circuit court did not abuse its discretion in sanctioning Papadopoulos by striking her petition to review, extend and increase her maintenance.
¶ 60 B. Withdrawal of Counsel
¶ 61 Papadopoulos argues the trial court committed reversible error on November 1, 2019, by striking her petition to review, extend and increase her maintenance as a discovery sanction without giving her time to retain new counsel, in violation of Supreme Court Rule 13(c) (eff. July 1, 2017).
¶ 62 Rule 13(c) provides in relevant part:
" (2) Notice of Withdrawal. An attorney may not withdraw his or her appearance for a party without leave of court and notice to all parties of record. Unless another attorney is substituted, the attorney must give reasonable notice of the time and place of the presentation of the motion for leave to withdraw, by personal service, certified mail, or a third-party carrier, directed to the party represented at the party's last known business or residence address. Alternatively, the attorney may give such notice electronically, if receipt is acknowledged by the party. Such notice shall advise said party that to insure notice of any action in said cause, the party should retain other counsel therein or file with the clerk of the court, within 21 days after entry of the order of withdrawal, a supplementary appearance stating therein an address to which service of notices or other documents may be made.
(3) Motion to Withdraw. The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address(es) of the party represented. The motion may be denied by the court if granting the motion would delay the trial of the case, or would otherwise be inequitable." Ill. S.Ct. R. 13(c).
¶ 63 Illinois Supreme Court Rules are to be construed in the same manner as statutes (Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 342 (2007); see also Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 48 (2004) (setting out rules of construction)), and our review is de novo (In re Storment, 203 Ill.2d 378, 390 (2002); see also Thomas v. Weatherguard Construction Co., Inc., 2015 IL App (1st) 142785, ¶ 63 (under de novo review, the reviewing court performs the same analysis that a trial judge would perform)).
¶ 64 The plain language of Rule 13(c) requires a withdrawing attorney to give her client reasonable notice of the time and place of the presentation of the motion for leave to withdraw and to advise her client to retain other counsel or file with the clerk of the court, within 21 days after the entry of the order of withdrawal, her supplementary appearance stating therein an address at which service may be had upon her. Where, as here, a party received notice and was present at the hearing on the motion to withdraw, this rule has been interpreted to require a continuance of at least 21 days after the entry of the order granting withdrawal, so that the party can retain other counsel or enter her own supplementary appearance. In re Marriage of Miller, 273 Ill.App.3d 64, 69 (1995); In re Marriage of Santa Cruz, 179 Ill.App.3d 611, 621-22 (1989). During this 21-day transition period, the circuit court should not render any rulings prejudicing the party's rights. In re Marriage of Miller, 273 Ill.App.3d at 69. Although the failure to grant a 21-day continuance may constitute reversible error (Santa Cruz, 179 Ill.App.3d at 622), it was held in First National Leasing Corp. v. E.T.P. of Chicago, Inc., 158 Ill.App.3d 882, 886 (1987), that the failure to grant a continuance is not a ground to vacate a judgment.
¶ 65 Papadopoulos contends that the trial court's decision to allow Fikaris to withdraw as counsel on November 1, 2019, triggered Papadopoulos's right under Rule 13(c)(2) to at least 21 days to secure new counsel to both defend against the imposition of discovery sanctions and for representation in the underlying maintenance review hearing. Although Fikaris was allowed to withdraw only after the court heard argument on both Fikaris's motion to withdraw and Kottaras's motion for discovery sanctions, Papadopoulos claims that Fikaris merely stood there and provided no advocacy or defense to Papadopoulos. Papadopoulos argues, without citation to any relevant authority, that she was effectively unrepresented for the proceedings that occurred on November 1, 2019, because Fikaris became her adversary from the moment Fikaris presented the motion to withdraw.
¶ 66 This adversary argument lacks merit. The plain language of Rule 13(c) (3) provides that the court may require counsel who wish to withdraw to continue to represent a party if granting counsel's motion to withdraw "would delay the trial of the case, or would otherwise be inequitable." Ill. S.Ct. R. 13(c)(3). The trial court complied with Rule 13(c)(3) because the court did not rule on Fikaris's motion to withdraw while Kottaras's motion for sanctions was pending. After the trial court determined that striking Papadopoulos's petition to review and extend her maintenance was the appropriate sanction for her discovery noncompliance, the court struck the now moot November 19 hearing date on her petition and then granted Fikaris leave to withdraw. The record does not indicate that the court, during the following 21 days, rendered any rulings prejudicing Papadopoulos's rights on the remaining issues of child support, reimbursement of the temporary maintenance Kottaras had paid her, or contribution for attorney fees. Consequently, Papadopoulos was not denied a 21-day transition period continuance after Fikaris was granted leave to withdraw.
¶ 67 The record is clear that Papadopoulos was represented by Fikaris before the trial court struck Papadopoulos's petition. The record establishes that the trial court was well aware of the requirements of Rule 13(c) because Papadopoulos was granted 21 days to retain replacement counsel on two prior occasions, i.e., on July 31, 2017, and December 31, 2018, when Kottaras had filed different rules to show cause against her based on her alleged violations of the June 2017 parenting coordinator order.
¶ 68 The record also establishes that Papadopoulos was aware of the November 1, 2019 hearing on Kottaras's motion to strike her petition, but she did not request a continuance or additional time to retain other counsel before that hearing commenced. See In re Marriage of Miller, 273 Ill.App.3d at 69 (mother forfeited review of trial court's error in failing to grant her a 21-day continuance after her counsel withdrew on the day before a child custody hearing because the mother's replacement counsel did not seek continuance of the hearing and instead answered that he was ready to proceed). Moreover, Papadopoulos did not contest Fikaris's motion to withdraw or move for reconsideration of that order. Accordingly, no grounds for vacating the trial court's order can be said to be present here. In re Marriage of Ehgartner-Shachter, 366 Ill.App.3d 278, 288-89 (2006).
¶ 69 To support her argument, Papadopoulos cites Ehgartner-Shachter, 366 Ill.App.3d 278, In re Marriage of Miller, 273 Ill.App.3d 64, In re Marriage of Santa Cruz, 179 Ill.App.3d 611, and In re Marriage of Humphrey, 121 Ill.App.3d 701 (1984). Her reliance on these distinguishable cases is unavailing because they involved instances where the trial court considered and ruled on the challenged orders after the court had allowed counsel to withdraw from representation.
¶ 70 In Ehgartner-Shachter, the appellant argued that orders issued after the trial court granted counsel leave to withdraw were void for failure to comply with the 21-day transition period of Rule 13(c). This court, however, did not have jurisdiction to consider the appellant's argument due to his untimely appeal. In re Marriage of Ehgartner-Shachter, 366 Ill.App.3d at 288-89. In dicta, this court remarked that the appellant, like Papadopoulos, had also forfeited review of this issue by failing to request a continuance or filing a motion to reconsider the order. Id. at 289.
¶ 71 In Miller, 273 Ill.App.3d at 69, the trial court abused its discretion by proceeding with a temporary custody hearing the day after granting the motion to withdraw by the mother's counsel, in violation of Rule 13(c). However, the mother forfeited appeal of that error because her replacement attorney, like Papadopoulos, did not seek a continuance. Furthermore, the mother's replacement counsel responded "Ready" when the case was called and proceeded with the hearing. Id.
¶ 72 In Santa Cruz, the intervenor grandmother had custody of her granddaughter, and the child's mother sought unsupervised visitation with the child. The intervenor received notice of her counsel's motion to withdraw on February 2. Two days later, on February 4, the trial court allowed the intervenor's counsel to withdraw and immediately granted the mother's petition for visitation. On appeal, the intervenor argued that the trial court, contrary to Rule 13(c), allowed the proceedings to go forward after counsel's withdrawal and during the 21-day transition period within which the intervenor can secure counsel. The appellate court reversed the trial court based on the entry of the improper order (1) only two days after the intervenor received notice of her counsel's withdrawal, (2) on the same day and at the same proceeding where counsel was allowed to withdraw, and (3) at a proceeding where the intervenor was absent and had no legal representation. In re Marriage of Santa Cruz, 179 Ill.App.3d at 621. In contrast to Santa Cruz, Papadopoulos was present at the hearing where the contested discovery sanction order was entered, and her counsel was allowed to withdraw after the discovery sanction hearing and ruling.
¶ 73 In Humphrey, in the absence of any indication that Rule 13 was even minimally complied with, the appellate court reversed a trial court order that imposed sanctions on the husband for discovery violations because (1) the record did not establish that the husband knew his counsel had withdrawn prior to a hearing on the wife's motion for sanctions, (2) the improper order was entered at a hearing held on the same day the husband's counsel was allowed to withdraw, and (3) neither the husband nor any attorney representing him was present at the hearing. In re Marriage of Humphrey, 121 Ill.App.3d at 702-03. Unlike the husband in Humphrey, Papadopoulos knew that Fikaris was seeking to withdraw as her counsel, was both present and represented by Fikaris at the hearing that resulted in the contested discovery sanction order, and was also allowed to address the court on her own behalf.
¶ 74 We conclude that the trial court did not violate Rule 13(c) where (1) Papadopoulos was present and represented by counsel during argument before the court on Kottaras's motion to strike, as a discovery sanction, her petition to review, extend and increase her maintenance, (2) she did not object to her counsel's withdrawal or request a continuance, and (3) the trial court did not allow counsel to withdraw until after the motion to strike was argued and granted.
¶ 75 C. Bankruptcy Stay
¶ 76 Papadopoulos argues that her reasonable belief that an automatic bankruptcy stay remained in effect mitigated her discovery noncompliance. She contends that the court neglected to ensure that her counsel was informed when the bankruptcy was lifted sua sponte by the trial court on July 31, 2019, and consequently she and her counsel were caught off guard when her petition for review and extension of maintenance was suddenly advanced for expedited discovery disclosure and final hearing.
¶ 77 This argument lacks merit. The trial court's July 31 order did not lift any stay. Rather, it simply stated which matters were subject to the automatic stay of the bankruptcy filing and which matters were not. Furthermore, Papadopoulos did not mention the bankruptcy stay to the trial court as one of the reasons for her discovery delays and thus forfeited that issue. Forfeiture aside, she was represented by counsel in the circuit court and in the bankruptcy court. Everyone is presumed to know the law, so ignorance of the law is not an excuse. Jones v. Board of Education of the City of Chicago, 2013 IL App (1st) 122437, ¶ 22; see also In re Flaherty, 432 B.R. 742, 752 (Bankr. N.D.Ill. 2010) ("Ignorance may be an explanation but is not an excuse."). She had a legal duty to follow the progress of her own case and cannot just rely on her lawyers. Fiallo v. Lee, 356 Ill.App.3d 649, 656 (2005) (litigants have a personal duty to follow the progress of their own case, whether they are represented by counsel or not). See also Smith v. Airoom, 114 Ill.2d 209, 226 (1986), and Gold v. Rader, 201 Ill.App.3d 775, 783 (1990)). This includes a duty to act when their counsel does not. Sakun v. Taffer, 268 Ill.App.3d 343, 350 (1994).
¶ 78 III. CONCLUSION
¶ 79 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 80 Affirmed.