{ "id": 5596228, "name": "In re MARRIAGE OF DUSTIN MILLER, Petitioner-Appellee, and BETHANY MILLER, Respondent-Appellant", "name_abbreviation": "In re Marriage of Miller", "decision_date": "2005-08-17", "docket_number": "No. 4\u201405\u20140286", "first_page": "659", "last_page": "665", "citations": [ { "type": "official", "cite": "359 Ill. App. 3d 659" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "733 N.E.2d 823", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "832", "parenthetical": "noting that absent an adequate offer of proof, the reviewing court could not conclude that the trial court abused its discretion by limiting the number of expert witnesses each party could call" } ], "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 372", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980719 ], "year": 2000, "pin_cites": [ { "page": "382", "parenthetical": "noting that absent an adequate offer of proof, the reviewing court could not conclude that the trial court abused its discretion by limiting the number of expert witnesses each party could call" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0372-01" ] }, { "cite": "771 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "365", "parenthetical": "an offer of proof is not required when \"it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced\"" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "year": 2002, "pin_cites": [ { "page": "495", "parenthetical": "an offer of proof is not required when \"it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "778 N.E.2d 390", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "395", "parenthetical": "a conclusory summary of a witness's anticipated testimony is not adequate to serve as an offer of proof" } ], "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521899 ], "year": 2002, "pin_cites": [ { "page": "547-48", "parenthetical": "a conclusory summary of a witness's anticipated testimony is not adequate to serve as an offer of proof" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0542-01" ] }, { "cite": "796 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "188", "parenthetical": "a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court" } ], "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 623", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472668 ], "year": 2003, "pin_cites": [ { "page": "630", "parenthetical": "a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0623-01" ] }, { "cite": "821 N.E.2d 283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "287", "parenthetical": "\"Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented\"" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448524 ], "year": 2004, "pin_cites": [ { "page": "217", "parenthetical": "\"Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0210-01" ] }, { "cite": "588 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1132" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597251 ], "year": 1992, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0413-01" ] }, { "cite": "787 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "818 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "719" } ], "opinion_index": 0 }, { "cite": "353 Ill. App. 3d 444", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3364429 ], "year": 2004, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0444-01" ] }, { "cite": "772 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "794" } ], "opinion_index": 0 }, { "cite": "331 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209137 ], "year": 2002, "pin_cites": [ { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0822-01" ] }, { "cite": "690 N.E.2d 984", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "989" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821414 ], "year": 1998, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0001-01" ] }, { "cite": "771 N.E.2d 966", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "970" } ], "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472318 ], "year": 2002, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0769-01" ] } ], "analysis": { "cardinality": 650, "char_count": 12849, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1624839903793619 }, "sha256": "8be49ff0a01d28652daa52fde6deb4b6ab94d02c7cd8bc2f1d7f73044136592b", "simhash": "1:8de6045f34cf1fb2", "word_count": 2133 }, "last_updated": "2023-07-14T16:05:25.227457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF DUSTIN MILLER, Petitioner-Appellee, and BETHANY MILLER, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn this 2004 marriage dissolution proceeding between petitioner, Dustin Miller, and respondent, Bethany Miller, the trial court limited the number of witnesses each party could call at the custody hearing. The court ultimately made Dustin the custodian of the parties\u2019 two children.\nBethany appeals, arguing only that the trial court erred by limiting the number of witnesses who could testify at the custody hearing. Because Bethany failed to make an adequate offer of proof regarding what testimony her additional witnesses would provide, we affirm.\nI. BACKGROUND\nDustin and Bethany were married in July 2001. During their marriage, they had two children, Alexander (born July 12, 2001) and Madeline (born May 6, 2003). In September 2004, Dustin filed separate petitions seeking (1) to dissolve the marriage and (2) temporary custody of the parties\u2019 two children. In October 2004, Dustin and Bethany entered into an agreed order, under which the trial court granted Dustin temporary custody of the parties\u2019 two children.\nIn early December 2004, the trial court entered an order (1) setting the case for a February 9, 2005, hearing on custody and other issues and (2) providing that if either party wanted to call more than two witnesses at the hearing, that party would need to request a pretrial conference at least seven days prior thereto.\nIn late January 2005, Bethany\u2019s counsel, F. Donald Heck, Jr., filed a motion to withdraw as her counsel. On February 2, 2005, the trial court granted Heck\u2019s motion, and two other attorneys, Richard D. Frazier and Scott D. Larson, took over as Bethany\u2019s counsel. That same day, Larson filed a motion to continue the February 9, 2005, hearing. At a February 7, 2005, hearing on that motion, Larson argued that a continuance was necessary because he needed time to discuss the case with Bethany and conduct discovery. Dustin\u2019s counsel argued against the continuance, pointing out that (1) the court\u2019s December 2004 order indicated that the parties had represented that they would be ready for the February 9, 2005, hearing; (2) in late December 2004, Larson sent Heck a motion to substitute Larson as Bethany\u2019s counsel, which Heck signed and returned to Larson later that month; and (3) in mid-January 2005, Frazier filed an entry of appearance as Bethany\u2019s counsel. After considering counsel\u2019s arguments, the court denied the motion to continue.\nAt the start of the February 9, 2005, custody hearing, Frazier asked the trial court to reconsider its ruling on the motion to continue, so that the court could hold a pretrial conference in accordance with its December 2004 order and Bethany could request eight additional witnesses. Frazier stated, in pertinent part, as follows:\n\u201cYour Honor, this is a custody case. Obviously[,] it\u2019s a very serious matter. We would have liked to have called 10 witnesses for the hearing today, and probably the most important witness that we\u2014 which we could have called today as a witness, although we did not allow [sic] him because we believe the 2 other occurrence witnesses were probably more important, is [Bethany\u2019s] current psychologist, Dr. Brian Heatherton. Now, the reason that would be important is the court is going to hear some issues concerning [Bethany\u2019s] mental condition, which basically [is that] she\u2019s been diagnosed as bipolar 2, which is a less severe form of bipolar 1, but his testimony concerning her treatment and her ability to care for her children would be very important for the court to hear, I think.\nWe also would have other witnesses who would also be occurrence witnesses] because of, again, this court\u2019s reasonable pretrial order, but, again, it was not complied with, including a mentor and a priest of both individuals, who would give the court helpful information, Dr. Dennis Schafer, and other occurrences witnesses, such as [Bethany\u2019s] father; [Bethany\u2019s] sister, *** Sister Mary Ellen at QUANADA [(an organization that provides services for victims of domestic violence and sexual assault)], who would testify concerning some emotional and physical abuses that may have occurred during the marriage, and 2 other witnesses, Danny Reid and Monica Esela, who also could testify concerning what their observations were of the parties concerning the 2 children in this matter.\u201d\nAfter considering counsel\u2019s argument, the trial court declined to reconsider its ruling, and the hearing proceeded. Dustin testified on his own behalf and called two witnesses, his mother and sister. Bethany testified on her own behalf and called two witnesses, her mother and a family friend. After considering the evidence, the court made Dustin the custodian of the parties\u2019 children.\nThis appeal followed.\nII. ANALYSIS\nA. Offers of Proof .\nWhen a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she \u201cmust provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.\u201d In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court\u2019s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).\nThe traditional way of making an offer of proof is the \u201cformal\u201d offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury\u2019s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 103.7, at 22 (8th ed. 2004).\nIn lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may \u2014 within its discretion \u2014 allow counsel to make such an informal offer of proof.\nA trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) \u201cmerely summarizes the witness\u2019 testimony in a conclusory manner\u201d (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel\u2019s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?\nIn addition, before deciding whether to accept counsel\u2019s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel\u2019s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel\u2019s representations, then opposing counsel\u2019s client may not later challenge the court\u2019s decision to proceed by counsel\u2019s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (\u201cSimply stated, a party cannot complain of error which that party induced the court to make or to which that party consented\u201d); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).\nWe emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court\u2019s discretion. Thus, if the trial court is not satisfied that counsel\u2019s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.\nB. Bethany\u2019s Failure To Make an Adequate Offer of Proof\nBethany argues that the trial court abused its discretion by limiting each party to two witnesses at the custody hearing. Dustin responds, in part, that Bethany failed to make an adequate offer of proof regarding what testimony the witnesses she was not permitted to call would provide. In her reply brief, Bethany contends that at the start of the February 9, 2005, hearing, Frazier made an adequate offer of proof through his representations to the court. We disagree with Bethany\u2019s characterization of the record.\nAt the February 9, 2005, hearing, Frazier did not make clear to the trial court that he sought to make representations in lieu of a formal offer of proof. Thus, the court was never called upon to exercise its discretion in determining whether Frazier should be allowed to make an informal offer.\nEven if we were inclined to view Frazier\u2019s remarks as indicating his wish to make an informal offer of proof, his statements to the trial court fell far short of meeting the criteria for making such an offer. He failed to inform the court, with particularity, (1) what the expected testimony would be or (2) its purpose. His representations constituted nothing more than conclusory descriptions of the subject matter of some of the witnesses\u2019 testimony. See People v. Singmouangthong, 334 Ill. App. 3d 542, 547-48, 778 N.E.2d 390, 395 (2002) (a conclusory summary of a witness\u2019s anticipated testimony is not adequate to serve as an offer of proof).\nNor was this a case in which it was apparent that the court clearly understood the nature and character of the evidence sought to be introduced. See Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495, 771 N.E.2d 357, 365 (2002) (an offer of proof is not required when \u201cit is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced\u201d). Indeed, lawyers should be very hesitant to rely on the notion that \u201cit is apparent\u201d that the trial court clearly understands the nature and character of the evidence it is barring, thus obviating the need not only to make a formal offer of proof but also the need to discuss the issue with the court. By far, the better practice is always for counsel to discuss with the court on the record how counsel proposes to proceed regarding an offer of proof concerning evidence the court has barred. Doing so will avoid the unpleasant surprise for counsel of discovering on appeal that the reviewing court does not share counsel\u2019s view that \u201cit is apparent\u201d from the record that the trial court clearly understood the nature and character of the evidence at issue, despite the absence of an offer of proof.\nBecause Bethany failed to make an adequate offer of proof, we have no way of knowing whether the excluded testimony would have (1) been admissible in the custody proceeding or (2) mattered in the custody determination. Thus, Bethany\u2019s failure to make an adequate offer of proof deprives this court of the resources we need to determine whether the trial court abused its discretion by limiting each party to two witnesses at the custody hearing. Given that we have no basis upon which to conclude that the court abused its discretion by limiting the number of witnesses, we affirm the court\u2019s judgment. See Tsoukas v. Lapid, 315 Ill. App. 3d 372, 382, 733 N.E.2d 823, 832 (2000) (noting that absent an adequate offer of proof, the reviewing court could not conclude that the trial court abused its discretion by limiting the number of expert witnesses each party could call).\nIII. CONCLUSION\nIn closing, we commend the trial court for its December 2004 order, in which it addressed discovery and scheduling issues so as to resolve the custody issue in a timely fashion.\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nCOOK, EJ., and McCULLOUGH, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Richard D. Frazier, of Metnick, Cherry, Frazier & Sabin, L.L.E, of Springfield, for appellant.", "Andrew C. Schnack III, of Schnack Law Offices, of Quincy, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF DUSTIN MILLER, Petitioner-Appellee, and BETHANY MILLER, Respondent-Appellant.\nFourth District\nNo. 4\u201405\u20140286\nOpinion filed August 17, 2005.\nRichard D. Frazier, of Metnick, Cherry, Frazier & Sabin, L.L.E, of Springfield, for appellant.\nAndrew C. Schnack III, of Schnack Law Offices, of Quincy, for appellee." }, "file_name": "0659-01", "first_page_order": 677, "last_page_order": 683 }