In re Marriage of Rexroat , 2022 IL App (3d) 210318-U ( 2022 )


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  •             NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
    in the limited circumstances allowed under Rule 23(e)(1).
    
    2022 IL App (3d) 210318-U
    Order filed June 14, 2022
    ____________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    THIRD DISTRICT
    2022
    In re MARRIAGE OF                      )     Appeal from the Circuit Court
    )     of the 9th Judicial Circuit,
    VIRGINIA NELL REXROAT,                 )     McDonough County, Illinois.
    )
    Petitioner-Appellee,             )
    )     Appeal No. 3-21-0318
    and                              )     Circuit No. 19-D-27
    )
    WILLIAM JOHN REXROAT,                  )
    )     Honorable William A. Rasmussen,
    Respondent-Appellant.            )     Judge, Presiding.
    ____________________________________________________________________________
    JUSTICE SCHMIDT delivered the judgment of the court.
    Justices Hauptman and Holdridge concurred in the judgment.
    ORDER
    ¶1          Held: The circuit court did not abuse its discretion when closing discovery. The
    mistaken belief by the court and petitioner’s counsel that counsel had asked
    the court to close discovery was not fraud on the court.
    ¶2          Respondent, William John Rexroat, appeals from the McDonough County circuit court’s
    order dissolving the parties’ marriage, and its award of maintenance to petitioner, Virginia Nell
    Rexroat. We affirm.
    ¶3                                         I. BACKGROUND
    ¶4           On March 27, 2019, petitioner filed a petition for dissolution of marriage. She and
    respondent married July 18, 1970, and resided in Colchester, Illinois. Petitioner alleged
    irreconcilable differences caused the irretrievable breakdown of their marriage, and all attempts at
    reconciliation had failed. She asked the trial court to enter an order dissolving the marriage,
    dividing the assets and debts, and directing respondent to pay maintenance and to pay her attorney
    fees and costs. Respondent, through counsel, answered the petition admitting some allegations and
    denying others. Respondent asked the court to grant the dissolution of the marriage, order an
    equitable division of assets and debts, and deny petitioner’s request for maintenance and attorney
    fees.
    ¶5           On June 4, 2019, petitioner filed a motion for gag order detailing that respondent had
    threatened to expose confidential information about family members on Facebook, including the
    parties’ adult children and their spouses, if petitioner did not end the divorce proceeding. On
    November 22, 2019, petitioner also filed a motion for psychological evaluation and asked for
    temporary possession of firearms. Petitioner alleged respondent had been diagnosed with a
    personality disorder at the Mayo Clinic (Mayo) in Rochester, Minnesota, in December 2018.
    Respondent had refused treatment and exhibited inappropriate, irrational, and dangerous behavior.
    Mayo advised that respondent was not to have access to firearms. The firearms were placed with
    the McDonough County Sheriff, and respondent had to surrender his FOID card. Petitioner left the
    marital home on December 10, 2018. Petitioner filed two more petitions asking for a plenary order
    of protection and for a firearms restraining order against respondent.
    ¶6           Following a hearing on December 4, 2019, the trial court entered an order dismissing
    petitioner’s latter three petitions without prejudice and showing the parties had reached an
    agreement on the petition for dissolution. The court ordered that neither party was to have contact
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    with the other except to exchange their dog, neither party was to bother or molest the other through
    any means, and the law firm of respondent’s counsel was to hold his firearms and FOID card in its
    safe until further order of the court. Petitioner was granted $10,000 as an advance on the division
    of the marital estate.
    ¶7             On November 25, 2020, respondent filed a pro se motion for recusal of the trial judge,
    which was restyled as a motion for substitution for cause. His motion was denied by another judge
    following a hearing at which respondent complained of adverse rulings.
    ¶8             At a December 14, 2020, hearing, respondent now appeared pro se. The parties reported
    they had reached a partial agreement on various assets and debts. Respondent wanted to keep
    certain properties to which petitioner did not object, subject to an equitable distribution of their
    value. Petitioner’s counsel, Alison Vawter, detailed a lengthy list of properties, accounts, assets,
    debts, and unpaid taxes subject to the agreement. Other property and maintenance issues were to
    be presented to the court later. Respondent stipulated to the agreement as detailed.
    ¶9             The hearing continued January 25, 2021. Vawter reported respondent had issued many
    subpoenas duces tecum, but she had not seen anything he had received. Vawter noted they had set
    values for assets and debts at the prior hearing. Respondent said he was ready for trial but withdrew
    his prior stipulation to the agreement detailed on December 14, 2020. Respondent asserted he had
    not stipulated to that agreement and accused Vawter of being unethical. The court allowed
    respondent a transcript of the December 14 hearing and set a new hearing date.
    ¶ 10           Petitioner was ill and unable to attend the February 26, 2021, hearing. The court noted
    respondent had filed voluminous last-minute motions. Respondent asked for a fair distribution of
    the parties’ assets and debts as the valuations had allegedly changed after he entered the stipulation.
    Vawter argued that the court would need to rule on whether the December 14 agreement was
    -3-
    enforceable. The court agreed that they could not proceed without such a ruling. The court then
    ordered “discovery is cut off. There’s no more discovery. That is without question.” The court
    continued the matter for the filing of motions and a hearing.
    ¶ 11           The parties filed their respective motions and, at the April 14, 2021, hearing, petitioner
    withdrew her motion to enforce the agreement. Vawter noted the court had ended discovery, and
    she asked it to set a hearing on all remaining issues. The court stated,
    “I was hoping today we might be able to finalize this. Apparently, that’s not
    going to happen, and we keep coming back and we keep coming back, and
    there keeps being something else every time, so, you know, at some point
    in time, we need to cut this off at the pass.”
    The court observed that respondent had filed new motions that same morning, and it asked
    respondent if there was anything other than the newly filed motions that would prevent him from
    proceeding to a final hearing on the dissolution. Respondent asked why the court had ended
    discovery. The court replied, “[s]o that we could have a trial. At some point in time, discovery has
    to be cut off. *** At some point in time, you have to have a trial.” It stated, “[t]here has been God’s
    plenty of time to get this ready for trial, so we’re ready for trial, but you’re not ready for trial
    because you keep filing motions.” The court asked respondent if he had anything else, if so, it
    would give him time to file additional motions, then they would all be heard and ruled on, and the
    dissolution hearing would be set.
    ¶ 12           Vawter stated respondent had filed many motions, 1 most of which dealt with financial
    relief, but one asked that he be allowed to see his guns at the McDonough County Sheriff’s Office.
    1
    Respondent filed 15 motions, some with voluminous exhibits, after he began acting pro se, and he
    filed 18 subpoenas, 4 of which were served after the trial court had cut off discovery on February 26, 2021.
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    Vawter had no objection to respondent viewing the guns. The court informed respondent the
    dissolution of marriage hearing would finalize the division of property and debts that was the
    subject of the majority of his motions, and respondent had no need to file motions on that issue.
    The court set a date to hear and rule on all of respondent’s pending motions and reiterated the
    matter would then be set for a final hearing.
    ¶ 13          On April 29, 2021, the trial court held a hearing on all pretrial motions. The court heard
    the motions and arguments in the order respondent wished to address them, and it ruled on all of
    them. At one point, based on respondent’s comments, the court explained to respondent the
    difference between discovery and the presentation of evidence at a trial. It also explained the reason
    for closing discovery was to allow the matter to proceed to trial. The court explained that
    respondent still would be able to present evidence at trial, but the rules of evidence might prohibit
    admission of some evidence.
    ¶ 14          The following colloquy ensued:
    “MR. REXROAT [(RESPONDENT)]: Okay. Why didn’t you cut
    off discovery in December before we started the trial?
    THE COURT: Because it wasn’t asked for. Nobody asked for it.
    MR. REXROAT: Okay. Who asked for it in February?
    THE COURT: Ms. Vawter did.
    MR. REXROAT: You did?
    MS. VAWTER [(PETITIONER’S ATTORNEY)]: I did.
    MR. REXROAT: I didn’t hear it in court.
    THE COURT: She was sitting right there and she said, are we going
    to cut off discovery? And I said, yes.
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    MR. REXROAT: Okay. I’ll look on the transcripts because I don’t
    remember that.”
    ¶ 15          The trial court denied respondent’s request to present interrogatories to opposing counsel
    because discovery had been closed. The court explained that respondent could examine petitioner
    when she testified, and that all division-of-property issues would occur at the final trial on the
    dissolution of the marriage, not in pretrial motions. The court informed respondent it could not
    hear his settlement proposal; respondent would have to discuss that with Vawter. The dissolution
    of the marriage hearing was set for 9 a.m. on June 23 and 24, 2021.
    ¶ 16          On June 14, 2021, respondent filed a motion to continue the June 23 and 24 hearing, stating
    in material part that he needed 45 days to obtain new counsel. Respondent did not notice this
    motion up for a hearing.
    ¶ 17          On June 23, 2021, respondent did not appear for the 9 a.m. hearing. He filed a motion to
    continue at 9:18 a.m. Petitioner objected. The court observed respondent did not file his motion
    until after the hearing was to have begun. Respondent claimed to have a migraine. The court denied
    the continuance. Vawter informed the court she had received two e-mails from respondent that
    morning:
    “The first one was sent at 9:22 a.m. from jgrexroat@corncast.net, and it says
    A. Vawter, I have just sent a motion to continue. If they don’t approve it,
    well, I guess, go ahead without me. I wouldn’t know what to do anyway and
    with you (sic) ex parte meeting on February 26th, it may have already been
    predestined anyway and signed John, and then the second email I received
    was at 9:26 a.m., and Mr. Rexroat apparently responding to me with respect
    to questions. I asked him about his ability to attend sports events recently
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    despite his migraines. He indicated that as for the sports events, I haven’t
    been to any since June 7th. I’m going out to walk the dog and going back to
    bed. That’s the last communication I’ve had from him, Your Honor.”
    The court responded, “I don’t know what he’s talking about any ex parte communications because
    there have not been any, but with his saying you might as well go ahead, that is exactly what we
    will do.”2
    ¶ 18           Petitioner testified and Vawter tendered supporting exhibits. The court orally ruled there
    were good grounds for the dissolution of the marriage. It dissolved the marriage and detailed the
    division of property and debts. The court awarded the firearms and ammunition to petitioner with
    instructions to auction them off and retain the proceeds less expenses. The court noted both parties
    would receive approximately $250,000 in assets. It ordered respondent to pay maintenance to
    petitioner in the amount of $66.37 per week commencing on July 1, 2021. The court entered a
    written judgment for dissolution on June 29, 2021, including additional details that were not part
    of its oral order.
    ¶ 19           Respondent filed a timely notice of appeal on July 22, 2021.
    ¶ 20                                                  II. ANALYSIS
    ¶ 21           Respondent argues the trial court erred in closing discovery when no request had been
    made to do so. Petitioner argues the court did not abuse its discretion when ending discovery.
    2
    Respondent claims in his reply brief that the court held an ex parte meeting with Vawter on
    February 26, 2021. Respondent has not provided any record to support this claim. He did not raise this
    claim in the circuit court, and he has not raised an argument regarding an ex parte communication in his
    briefs. “Issues not raised in either the trial court or the appellate court are forfeited.” 1010 Lake Shore Ass’n
    v. Deutsche Bank National Trust Co., 
    2015 IL 118372
    , ¶ 14 (citing WISAM 1, Inc. v. Illinois Liquor Control
    Comm’n, 
    2014 IL 116173
    , ¶ 23).
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    ¶ 22           A trial court’s discovery decisions are reviewed for abuse of discretion. People v. Williams,
    
    209 Ill. 2d 227
    , 234 (2004) (citing People v. Fair, 
    193 Ill. 2d 256
    , 265 (2000)). Illinois Supreme
    Court Rule 201 provides:
    “(1) Protective Orders. The court may at any time on its own
    initiative, or on motion of any party or witness, make a protective order as
    justice requires, denying, limiting, conditioning, or regulating discovery to
    prevent unreasonable annoyance, expense, embarrassment, disadvantage,
    or oppression.
    (2) Supervision of Discovery. Upon the motion of any party or
    witness, on notice to all parties, or on its own initiative without notice, the
    court may supervise all or any part of any discovery procedure.” (Emphases
    added.) Ill. S. Ct. R. 201(c)(1-2) (eff. July 1, 2014).
    Further, “[t]he trial of a case shall not be delayed to permit discovery unless due diligence
    is shown.” Ill. S. Ct. R. 201(f) (eff. July 1, 2014).
    ¶ 23           The record shows the pro se respondent was not well acquainted with trial procedure and
    the rules of evidence. The trial court attempted to educate respondent about the difference between
    discovery and the presentation of evidence at a hearing. Respondent served subpoenas after he
    knew discovery had been closed. The court gave respondent reasonable opportunities to file any
    motion respondent felt needed to be filed, and the court ruled on all his motions. We hold the trial
    court did not abuse its discretion when closing discovery.
    ¶ 24           Respondent argues the trial court stated petitioner’s counsel had asked to end discovery,
    and counsel agreed, which caused “fraud on the court by both.” He argues the court’s orders and
    judgment are void. Respondent argues counsel knowingly made a false statement to the court. Ill.
    -8-
    R. Prof’l Conduct (2010) R. 3.3(a)(1) (eff. Jan. 1, 2010) (“A lawyer shall not knowingly *** make
    a false statement of fact or law to a tribunal.”) (Emphasis added.) Petitioner argues the court and
    Vawter’s belief that she asked to close discovery was harmless error, not fraud.
    ¶ 25          “A judgment entered by a court, otherwise exercising proper jurisdiction, is open to
    collateral attack where fraud existed in its procurement.” People v. Carrasquillo, 
    2020 IL App (1st) 180534
    , ¶ 52 (citing Doctor’s Associates, Inc. v. Duree, 
    319 Ill. App. 3d 1032
    , 1043 (2001)).
    “Only fraud that is extrinsic, as opposed to intrinsic, will render a judgment unenforceable.” 
    Id.
    Extrinsic fraud prevents a court from acquiring jurisdiction or gives the court colorable
    jurisdiction. Leroy K.D. v. Nicole B., 
    2021 IL App (3d) 200010
    , ¶ 37 (citing Massie v. Minor, 
    307 Ill. App. 3d 115
    , 119 (1999)). The classic example of extrinsic fraud is where the unsuccessful
    party had been prevented from fully presenting his or her case, such as where the party had been
    kept away from the courthouse, or where the party had no knowledge of the suit. 
    Id.
     “[J]udgments
    entered in a civil proceeding may be collaterally attacked as void only where there is a total want
    of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the
    parties.” Johnston v. City of Bloomington, 
    77 Ill. 2d 108
    , 112 (1979) (citing Wood v. First National
    Bank, 
    383 Ill. 515
    , 522 (1943)). A circuit court’s order is not rendered void by error or impropriety.
    Vulcan Materials Co. v. Bee Construction, 
    96 Ill. 2d 159
    , 165 (1983) (citing Farlow v. Oliver, 
    29 Ill. 2d 493
    , 499(1963)).
    ¶ 26          “The party attacking the judgment on the ground of extrinsic fraud carries the burden of
    supporting his claim with adequate evidentiary support; thus, it is a factual determination given
    deference on review.” Carrasquillo, 
    2020 IL App (1st) 180534
    , ¶ 52 (citing Doctor’s Associates,
    319 Ill. App. 3d at 1043). In the instant case, respondent does not claim extrinsic fraud occurred
    or that the trial court did not have personal jurisdiction over the parties or subject matter
    -9-
    jurisdiction over the dissolution of marriage proceeding. The court had both personal and subject
    matter jurisdiction. Respondent had notice of the proceedings, and he was not prevented from fully
    presenting his case. Thus, we conclude no extrinsic fraud occurred below, and the trial court’s
    orders are not void and unenforceable.
    ¶ 27          Intrinsic fraud occurs after a court acquires jurisdiction, and includes, for example, false
    testimony or concealment. Leroy K.D., 
    2021 IL App (3d) 200010
    , ¶ 37 (citing Massie, 307 Ill.
    App. 3d at 119). Intrinsic fraud “goes to the actual merits of the case and does not preclude a party
    from raising a claim or defense, or being aware of and attending the proceeding.” Protein Partners,
    LLP v. Lincoln Provision, Inc., 
    407 Ill. App. 3d 709
    , 716 (2010) (citing Doctor’s Associates, 319
    Ill. App. 3d at 1043). Intrinsic fraud includes “perjured testimony or misrepresentations by
    counsel.” Pitts v. National R.R. Passenger Corp., 
    603 F. Supp. 1509
    , 1517 (N.D. Ill. 1985). The
    opposing party can prevent such misbehavior from influencing the outcome of the litigation. 
    Id.
    ¶ 28          Petitioner acknowledges the record does not show Vawter asked the court to end discovery.
    However, the record does not support that Vawter knowingly made a false statement to the court
    that she had asked it to close discovery. Importantly, the court ended discovery at the February 26,
    2021, hearing. The court and Vawter’s subsequent error at the April 29 hearing, where they agreed
    Vawter asked to close discovery on February 26, did not affect the merits of the instant case.
    Respondent does not claim Vawter made a misrepresentation that affected the merits of the case,
    and he does not claim perjured testimony was given or that there had been any concealment.
    Respondent was given a full opportunity to present any pretrial motions he felt were necessary and
    have the court rule on them. Respondent voluntarily failed to appear for the evidentiary hearing on
    the petition for dissolution of marriage. Thus, we hold no intrinsic fraud occurred below. Further,
    the court’s unsubstantiated statement that Vawter had asked it to close discovery was made two
    - 10 -
    months after the court properly closed discovery on its own initiative; therefore, that error was
    harmless.
    ¶ 29                                         III. CONCLUSION
    ¶ 30          For the foregoing reasons, we affirm the judgment of the circuit court of McDonough
    County.
    ¶ 31          Affirmed.
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