In re Marriage of Bonneau

No. 2--97--0259

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

In re MARRIAGE OF JAMES R.
BONNEAU,

Petitioner-Appellant,

and

DONNA MARIE BONNEAU, n/k/a/
Donna Marie Tastad,

Respondent-Appellee.
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)Appeal from the Circuit
Court of Ogle County.

No. 95--D--39

Honorable
Stephen C. Pemberton,
Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

During the property distribution phase of her marriage
dissolution (750 ILCS 5/101 et seq. (West 1996)), respondent, Donna
Marie Bonneau, sought the production of certain medical records from
petitioner, James R. Bonneau, relating to petitioner s possible
testing for, or infection with, the human immunodeficiency virus
(HIV), a causative agent of acquired immunodeficiency syndrome (AIDS).
Petitioner refused to produce the requested records, despite a trial
court order to the contrary, arguing that the records were protected
from disclosure under the privilege established in the AIDS
Confidentiality Act (Act) (410 ILCS 305/1 et seq. (West 1996)). As
a result, the circuit court of Ogle County found petitioner in
indirect civil contempt for failure to comply with the court s
discovery order, fined him $250, and ordered him to pay $250 for
respondent s attorney fees. Petitioner appealed the court s contempt
order.
FACTS
After more than 12 years of marriage, petitioner filed a petition
for dissolution of marriage on February 22, 1995. On May 23, 1995,
the trial court entered a judgment for dissolution, reserving
questions of maintenance and property distribution.
On July 8, 1996, respondent filed a motion to produce medical
records alleging that "on information and belief, [petitioner] was
recently hospitalized for an immune system disorder (blood disease
and pneumonia)." Respondent then requested petitioner s medical
records for "a condition, which may be AIDS or AIDS related."
The trial court eventually granted respondent s motion and
ordered petitioner to produce either his medical records or a
narrative report from his treating physician. The trial court found
that petitioner waived his protections under the Act by instituting
the dissolution proceeding, since the court was required to consider
the parties health in determining the distribution of property and
the award of maintenance.
The trial court thereafter denied petitioner s motion for
reconsideration. Nonetheless, petitioner indicated that he would not
produce his medical records or a narrative report. Respondent
subsequently filed a petition for adjudication of direct civil
contempt. The trial court found petitioner in indirect civil
contempt, fined him, and ordered him to pay respondent s attorney
fees. Petitioner then filed a timely notice of appeal.
STANDARD OF REVIEW
A trial court is vested with the inherent power to enforce its
orders and preserve its dignity by the use of contempt proceedings
(People v. Warren, 173 Ill. 2d 348, 368 (1996)), and a trial court may
use contempt proceedings to compel a party to obey a discovery order
(166 Ill. 2d R. 219(c); In re Marriage of Daniels, 240 Ill. App. 3d
314, 323 (1992)). A contempt proceeding is also an appropriate method
for testing the correctness of a discovery order. Flannery v. Lin,
176 Ill. App. 3d 652, 655 (1988).
Where an individual appeals a contempt judgment imposed for
violating a discovery order, that discovery order is also subject to
review. Almgren v. Rush-Presbyterian-St. Luke s Medical Center, 162 Ill. 2d 205, 216 (1994). Thus, where the trial court s discovery
order is invalid, a contempt judgment for failure to comply with the
discovery order must be reversed. Lin, 176 Ill. App. 3d at 655.
Since we are reviewing a discovery order, respondent contends
that the standard of review is abuse of discretion. See Maxwell v.
Hobart Corp., 216 Ill. App. 3d 108, 110 (1991) (rulings on discovery
matters will not be disturbed on appeal absent a manifest abuse of
discretion). Regardless, a trial court lacks the discretion to compel
the disclosure of information that is privileged or otherwise exempted
by statute or by common law. Daniels, 240 Ill. App. 3d at 324.
Moreover, where the facts are uncontroverted and the issue is the
trial court s application of the law to the facts, as in this case,
a court of review may determine the correctness of the ruling
independently of the trial court s judgment. First National Bank of
Lacon v. Strong, 278 Ill. App. 3d 762, 764 (1996). Accordingly, our
review in this matter is de novo. Strong, 278 Ill. App. 3d at 764;
cf. D.C. v. S.A., 178 Ill. 2d 551, 559 (1997)(applicability of a
statutory discovery privilege is a matter of law).
ANALYSIS
On appeal, petitioner contends that, since the requested records
are privileged under the Act, the trial court erroneously found him
in contempt. In response, relying on the common law, respondent
argues that petitioner waived the Act s privilege by putting his
health in issue.
I. INTRODUCTION
The number and variety of HIV-related cases has grown in Illinois
and across the country. See, e.g., Advincula v. United Blood
Services, 176 Ill. 2d 1 (1996)(blood transfusion-liability case);
People v. Russell, 158 Ill. 2d 23 (1994) (criminal transmission case);
Doe v. Northwestern University, 289 Ill. App. 3d 39 (1997) (personal
injury claims within "fear of AIDS" case), pet. for leave to appeal
allowed No. 83886; Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d
793 (1994) ("fear of AIDS" case). See generally Annotation, State
Statutes or Regulations Expressly Governing Disclosure of Fact that
Person has Tested Positive for Human Immunodeficiency Virus (HIV) or
Acquired Immunodeficiency Syndrome (AIDS), 12 ALR 5th 149 (1993).
Contemporaneously, the number and variety of discovery disputes
involving HIV-related information has risen. See generally U.
Colella, HIV-Related Information and the Tension Between
Confidentiality and Liberal Discovery--The Need for a Uniform
Approach, 16 J. Legal Med. 33 (1995).
To resolve these discovery disputes, courts must strike the
proper balance between competing interests: liberal discovery, public
health, and an individual s right to privacy. On the one hand, our
society favors and needs liberal discovery. See 166 Ill. 2d R.
201(b)(1)(parties may obtain full disclosure regarding any relevant
matter); Wardius v. Oregon, 412 U.S. 470, 473, 37 L. Ed. 2d 82, 87,
93 S. Ct. 2208, 2211 (1973) (pointing out, in a criminal case, the
ends of justice are best served by liberal discovery); Winfrey v.
Chicago Park District, 274 Ill. App. 3d 939, 949 (1995)(noting
Illinois Supreme Court rules permit liberal discovery); see also
Mistler v. Mancini, 111 Ill. App. 3d 228, 231-32 (1982)(listing
objectives of discovery: enhance the truth-seeking process; enable
attorneys to better prepare and evaluate their cases; eliminate
surprises; and ensure that judgments rest upon the merits of the
case). Consequently, pretrial discovery presupposes a range of
relevance and materiality which includes not only what is admissible
at trial but also that which leads to what is admissible at trial.
Mistler, 111 Ill. App. 3d at 232.
Our need for liberal discovery, however, clashes with our
society s need to keep certain matters confidential, through
evidentiary privileges, to protect the public health. See D.C. v.
S.A., 283 Ill. App. 3d 693, 700 (1996) (our legislature has the power,
through the enactment of evidentiary privileges, to inhibit the truth-
seeking process to protect certain relationships), rev d on other
grounds, 178 Ill. 2d 551 (1997); FMC Corp. v. Liberty Mutual Insurance
Co., 236 Ill. App. 3d 355, 358 (1992) (privileges are designed to
protect interests outside the truth-seeking process); see, e.g., 735
ILCS 5/8--802 (West 1996) (physician/patient privilege); 740 ILCS
110/1 et seq. (West 1996) (Mental Health and Developmental
Disabilities Confidentiality Act). In particular, in this case, our
legislature enacted the Act, with its assurance of confidentiality,
to control the spread of the HIV virus by encouraging the public to
submit to voluntary testing. In re Application of Multimedia KSDK,
Inc., 221 Ill. App. 3d 199, 202 (1991).
Our legislature found that confidential HIV testing is a valuable
tool in protecting the public health. 410 ILCS 305/2 (1),(3) (West
1996). Nonetheless, prior to the Act s enactment, the public was
deterred from seeking HIV testing in part because they feared that
their results would be disclosed without their consent. 410 ILCS
305/2(2) (West 1996). The public s fear was well-founded, since
individuals with HIV and those associated with individuals with HIV
have suffered violence and discrimination in housing, medical care,
employment, insurance, and education affecting their reputations,
economic livelihoods, and personal relationships. 16 J. Legal Med.
at 34, 58. However, through confidential testing, the State is able
to encourage individuals to submit voluntarily to HIV tests, enabling
the State to educate those who have tested positive to act responsibly
and refrain from spreading the disease. 16 J. Legal Med. at 74-75.
Moreover, courts must also consider a party s constitutional
right to privacy (U.S. Const., amend. IV; Ill. Const. 1970, art. I,
6 ("The people shall have the right to be secure *** against ***
invasions of privacy"); Griswold v. Connecticut, 381 U.S. 479, 484,
14 L. Ed. 2d 510, 514-15, 85 S. Ct. 1678, 1681-82 (1965) (individuals
enjoy a constitutional right to privacy)), including the
constitutional protection against the unwarranted disclosure of
"personal matters" (Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64,
73, 97 S. Ct. 869, 876 (1977); Family Life League v. Department of
Public Aid, 132 Ill. App. 3d 929, 932 (1985) (privacy rights involve
one s interest in avoiding the disclosure of personal matters)). One
constitutional scholar has gone so far as to state: "[AIDS] has
created the most controversial context in which the right of record
privacy arises today." 16 J. Legal Med. at 57, quoting L. Tribe,
American Constitutional Law 1394 (2d ed. 1988). It is in light of
these competing interests that we reach our decision in this matter.
II. APPLICABLE VERSION OF ACT
Section 9 of the Act provides:
"No person may disclose or be compelled to disclose the
identity of any person upon whom a test is performed, or the
results of such a test in a manner which permits identification
of the subject of the test ***." 410 ILCS 305/9 (West 1996).
The Act s definition of a "person" includes a "natural person" (410
ILCS 305/3(h) (West 1996)), and the Act defines a "test" as "a test
to determine the presence of the antibody or antigen to HIV, or of HIV
infection (410 ILCS 305/3(g) (West 1996)). Accordingly, petitioner s
medical records concerning his HIV-related information are protected
by the Act, and none of the Act s exceptions apply.
The parties, however, disagree over which version of the Act is
applicable. Respondent contends that the former version of the Act,
containing a section 9(g) exception, is applicable while petitioner
contends that the current version of the Act, without the section 9(g)
exception, is applicable. We note that respondent s motion never
relied on, or even raised, the section 9(g) exception. Regardless,
on the merits, we agree with petitioner.
Prior to August 18, 1995, section 9(g) provided an exception to
the Act s confidentiality for "[a] person allowed access to said
record by a court order which is issued in compliance with the
following provisions * * *." 410 ILCS 305/9(g) (West 1994). Among
other changes, Public Act 89--381 amended section 9(g) by removing the
exception and by leaving it blank. Pub. Act 89--381, eff. August 18,
1995 (amending 410 ILCS 305/9(g) (West 1994)); see 410 ILCS 305/9(g)
(West 1996).
When determining whether a statutory amendment applies to an
existing controversy on appeal, a reviewing court should apply the law
as it exists at the time of the appeal, unless the application of the
change in the law would affect a vested right. First of America Trust
Co. v. Armstead, 171 Ill. 2d 282, 288-89 (1996). Where no vested
rights are involved, either because they are not yet perfected or
because the amendment is procedural in nature, the amendment can be
applied to the existing controversy without any retroactive impact.
Armstead, 171 Ill. 2d at 290.
In this case, respondent filed her motion to produce on July 8,
1996, while the legislature repealed section 9(g) effective August 18,
1995. Since the legislature has an ongoing right to amend a statute
(Armstead, 171 Ill. 2d at 291), respondent possessed no vested right
in the mere continuance of section 9(g). In addition, respondent
could not have reasonably relied on section 9(g). See Valdez v.
Zollar, 281 Ill. App. 3d 329, 333 (1996) (a major factor must be the
reasonable reliance that the expectation induces).
Respondent argues, however, that her right to access petitioner s
medical records regarding his HIV-related information arose prior to
the effective date of Public Act 89--381, either when petitioner filed
the petition for dissolution, respondent answered the petition, or the
trial court entered the judgment for dissolution. Respondent,
however, never perfected her rights under former section 9(g) because
she did not file her motion until after section 9(g) was amended.
Compare Armstead, 171 Ill. 2d at 293 (finding no vested rights in
registering petroleum tanks and receiving compensation under a prior
version of the Gasoline Storage Act where the "[p]laintiff had not
satisfied the statutory prerequisites so as to create a reasonable
expectation of reimbursement *** prior to the amendment") with Harraz
v. Snyder, 283 Ill. App. 3d 254 (1996) (finding a vested right where
plaintiff did all she could to perfect her interest in being
compensated for her claims, since her injury had occurred and she had
filed her original complaint before the effective date of the statute)
and Hernandez v. Woodbridge Nursing Home, 287 Ill. App. 3d 641
(1997)(finding a vested right in claiming treble damages where the
plaintiff s cause of action accrued and she filed her complaint before
the statutory amendment). Because no vested right was involved, the
current version of the Act, without the section 9(g) exception, is
applicable here.
III. WAIVER
Despite the Act s protection, respondent argues that she is
entitled to petitioner s HIV-related information. Relying on the
common law, respondent contends petitioner waived the Act s privilege
by putting his health in issue.
A. AVAILABILITY OF COMMON-LAW WAIVER PRINCIPLE
Before we address whether petitioner put his health in issue, we
must first address whether respondent s common-law argument is
available or whether the Act abrogates the common law. Petitioner
correctly argues that one rule of statutory construction is that the
expression of certain exceptions in a statute will be construed as an
exclusion of all others (see Weast Construction Co., Inc. v.
Industrial Comm n, 102 Ill. 2d 337, 340 (1984)), and in this case, the
Act does not contain an exception for situations when a party s health
is in issue. Compare 410 ILCS 305/9(a) through (k) (West 1996) with
740 ILCS 110/10(a)(1) (West 1996)(exception to privilege in Mental
Health and Developmental Disabilities Confidentiality Act where
recipient introduces mental condition as element of claim or defense)
and 735 ILCS 5/8--802 (West 1996)(exception to physician/patient
privilege where patient s physical or mental condition is an issue).
Consequently, the Act does not provide for respondent s common-law
waiver argument.
A statute alleged to be in derogation of the common law, however,
should not be construed as changing the common law beyond what is
expressed by the words in the statute or is necessarily implied from
it. People v. Haywood, 118 Ill. 2d 263, 272 (1987). In addition,
statutes in derogation of the common law are strictly construed in
favor of persons sought to be subjected to their operation, and courts
will read nothing into such statutes by intendment or implication.
O Neill v. Brown, 242 Ill. App. 3d 334, 339 (1993). Furthermore, the
common law is part of the law of Illinois unless it has been expressly
abrogated by statute. People ex rel. Board of Trustees of the
University of Illinois v. Barrett, 382 Ill. 321, 346 (1943). The Act
does not expressly abrogate the "in issue" waiver argument, and we
will not read such an abrogation into the Act. As a result,
respondent s common-law waiver argument is available.
B. HEALTH IN ISSUE
The question then is whether petitioner put his physical health
in issue. Respondent claims petitioner put his physical health in
issue by filing the petition for dissolution and by requesting an
equal distribution of the marital assets. Respondent further contends
that petitioner s physical health is relevant because (1) petitioner
seeks part of respondent s personal injury claim, and (2) the parties
pensions would be difficult to value accurately without knowing
whether the parties have normal life expectancies.
Although this issue has not arisen within the context of the
Act s statutory privilege, we are guided by the case law addressing
this issue within the context of other statutory privileges. A
statutory privilege regarding mental or physical health should not be
deemed waived unless the party asserting the privilege either
expressly waived the privilege or specifically or affirmatively placed
his or her mental or physical health in issue in the pleadings. See
Bland v. Department of Children and Family Services, 141 Ill. App. 3d
818, 826-27 (1986); Tylitzki v. Triple X Service, Inc., 126 Ill. App.
2d 144, 151 (1970); Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d
405, 408-09 (1966). Courts should be wary to find that a party waived
a statutory privilege by placing his or her physical or mental health
in issue. To disregard lightly these statutory privileges would open
a Pandora's box of inquiry into a party s physical or mental health,
even when only peripherally involved in the proceeding, and would
necessitate time-consuming excursions into speculation and irrelevant
side shows. See Thiele v. Ortiz, 165 Ill. App. 3d 983, 993 (1988);
Webb, 73 Ill. App. 2d at 409. Confidentiality privileges are too
important to be brushed aside. Thiele, 165 Ill. App. 3d at 993;
Bland, 141 Ill. App. 3d at 826; Tylitzki, 126 Ill. App. 2d at 149.
Furthermore, it is not difficult to consider the many ways in which
it could be argued that a party s physical or mental health is in
issue, and soon there would exist more exceptions to the statutory
privileges than there would be areas of inquiry protected by the
privileges. Thiele, 165 Ill. App. 3d at 993; Bland, 141 Ill. App. 3d
at 826; Tylitzki, 126 Ill. App. 2d at 149.
In Goldberg v. Davis, 151 Ill. 2d 267 (1992), the court found
that the complainant s mental condition was in issue in a license
disciplinary proceeding brought against the plaintiff before the
Illinois Department of Professional Regulation. The Department
accused the plaintiff of improperly treating the complainant and found
that the plaintiff s diagnosis of the complainant was a crucial
element of the Department's complaint in determining whether the
treatment was proper. Cf. SPSS, Inc. v. Carnahan-Walsh, 267 Ill. App.
3d 586 (1994) (communications with an attorney are in issue when a
party files a malpractice claim against the attorney); People v.
O Banner, 215 Ill. App. 3d 778 (1991) (communications with an attorney
are put in issue when a criminal defendant asserts ineffective
assistance of counsel).
Conversely, in Tylitzki, 126 Ill. App. 2d 144, the court held
that the plaintiff in a negligence action did not affirmatively place
her mental condition in issue by including an allegation for pain and
suffering in her complaint. The plaintiff s mental well-being was not
specifically made an issue by the pleadings; thus, the plaintiff did
not waive the statutory patient/psychiatrist privilege. Tylitzki, 126
Ill. App. 2d at 149. Similarly, an individual does not put his or her
mental health in issue merely by filing a petition for adoption
(Bland, 141 Ill. App. 3d 818) or by filing a claim for loss of society
under the Wrongful Death Act (Thiele, 165 Ill. App. 3d 983 (1988)).
See also D.C., 178 Ill. 2d 551 (finding party did not put mental
health in issue by pleading freedom from negligence, by denying
allegation of comparative negligence, or by filing a negligence
claim).
We note that, in the context of HIV-related information, courts
should be particularly reluctant to find that a party waived the Act s
statutory privilege by putting his or her health in issue. By
enacting Public Act 89--381, our legislature clearly intended to make
it difficult for an individual to access another individual s HIV-
related information through the court system, and a fundamental rule
of statutory construction is to give effect to the intent of the
legislature (State v. Mikusch, 138 Ill. 2d 242, 247 (1990)). For
instance, Public Act 89--381 repealed the exception for court-ordered
access in section 9(g) of the Act. In addition, Public Act 89--381
added the following sentence to section 9(d):
"Neither the Department nor its authorized representatives
shall disclose information and records held by them relating to
known or suspected cases of AIDS or HIV infection, publicly or
in any action of any kind in any court or before any tribunal,
board, or agency." (Emphasis added.) 410 ILCS 305/9(d) (West
1996).
The legislature similarly amended other statutes with Public Act
89--381. For instance, the following was added to the Illinois
Sexually Transmissible Disease Control Act (410 ILCS 325/1 et seq
(1996)):
"The Department and its authorized representatives shall not
disclose information and records held by them relating to known
or suspected cases of sexually transmissible diseases publicly
or in any action of any kind in any court or before any tribunal,
board, or agency ***." (Emphasis added.) 410 ILCS 325/8(a) (West
1996).
Similarly, the legislature added sexually transmitted diseases, the
definition of which includes HIV and AIDS, to the confidential
information section of the Communicable Disease Report Act (745 ILCS
45/1 (West 1996)), which provides that "[t]he identity of any
individual who makes a report or who is identified in a report of ***
[a] sexually transmitted disease *** shall be confidential and the
identity of any person making a report or named therein shall not be
disclosed publicly or in any action of any kind in any court or before
any tribunal, board or agency ***" (745 ILCS 45/1 (West 1996)).
Therefore, in this case, we will not find that petitioner waived the
statutory privilege unless he expressly waived the Act s privilege,
which he did not, or he specifically or affirmatively placed his
health in issue in the pleadings.
1. Filing Petition for Dissolution
The grounds for dissolution include some grounds relating to a
respondent s health. The only ground even close to relevant in this
case is the situation where "the respondent has infected the other
with a sexually transmitted disease" (750 ILCS 5/401(a)(1) (West
1996)), the definition of which includes HIV and AIDS (77 Ill. Adm.
Code 693.10 (1997). Nonetheless, petitioner did not put his health
in issue by filing the petition for dissolution, although this
argument does raise an example where a party s HIV status would be in
issue.
Several reasons exist why petitioner did not put his health in
issue by filing the petition for dissolution in this case. First, the
grounds for dissolution regarding health concern the respondent s
health, not the petitioner s health. Second, petitioner s stated
ground for dissolution was mental cruelty, not that respondent
infected him with a communicable venereal disease. Third, the grounds
for dissolution in this case are irrelevant at this stage of the
proceedings since the judgment for dissolution was entered before
respondent filed her motion to produce. On the other hand, if
respondent had filed a petition for dissolution alleging that
petitioner had infected her with HIV, petitioner s HIV-related
information would have been in issue. Since that is not the case
here, petitioner did not waive the Act s privilege by filing the
petition for dissolution. See Bland, 141 Ill. App. 3d 818; Thiele,
165 Ill. App. 3d 983.
2. Property Distribution and Maintenance Award
We also disagree that petitioner put his health in issue by
seeking an equal distribution of marital assets without maintenance.
Respondent correctly notes that in a proceeding for dissolution of
marriage the trial court shall divide marital property in just
proportions while considering all relevant factors, including the
health of each of the parties. 750 ILCS 5/503(d)(8) (West 1996).
Likewise, when determining whether to grant maintenance or the amount
of a maintenance award, the trial court should consider all relevant
factors, including the physical condition of the parties. 750 ILCS
5/504(a)(8) (West 1996).
In neither instance, however, is a party s poor health used
against that party. Instead, a party s poor health results in an
increased share of the marital assets or an increased maintenance
award. For instance, in In re Marriage of Clearman, 97 Ill. App. 3d
641 (1981), the appellate court reversed and remanded the trial
court s award of nearly all of the marital assets to the respondent
wife, without debt obligations. The appellate court felt that the
extreme disparity in the division of marital property was not
justified on the facts then in the record. At the time of the
original award the respondent had been in good health, but prior to
rehearing upon remand, the respondent encountered serious health
problems. As a result, recognizing that the respondent s severely
poor health was a critical factor, the appellate court found no abuse
of discretion when the trial court, upon remand, substantially
reaffirmed the prior judgment favoring the respondent. See also In
re Marriage of Orlando, 218 Ill. App. 3d 312 (1991) (awarding two
thirds of marital property to petitioner wife was not an abuse of
discretion since respondent was in good health but petitioner suffered
from physical and emotional problems); In re Marriage of Madoch, 212
Ill. App. 3d 1007 (1991)(holding trial court abused its discretion in
granting petitioner wife only 55% of marital property in light of
petitioner's total disability as the result of illness and directing
that petitioner's share be increased to 75%); In re Marriage of
Agazim, 176 Ill. App. 3d 225 (1988)(holding no abuse of discretion in
awarding petitioner wife 76% of marital assets since petitioner s
wage-earning capacity was limited by injuries); In re Marriage of
Brooks, 138 Ill. App. 3d 252 (1985) (holding trial court did not abuse
its discretion by awarding respondent wife slightly more than 50% of
marital estate where respondent was a virtual invalid and petitioner
was in good health); In re Marriage of Fuggiti, 130 Ill. App. 3d 190
(1985) (holding trial court did not abuse its discretion in awarding
a substantial portion of the marital assets to petitioner wife on
remand, since wife suffered from a terminal illness); In re Marriage
of McNeeley, 117 Ill. App. 3d 320 (1983)(holding no abuse of
discretion in awarding approximately 60% of marital assets to wife
where wife suffered from arthritis and husband was in good health).
Likewise, in Brooks, 138 Ill. App. 3d 252, the court held that
the trial court did not abuse its discretion in awarding a divorced
wife $225 per week maintenance where the respondent wife was a virtual
invalid and the petitioner husband was in good health. See also In
re Marriage of Pearson, 236 Ill. App. 3d 337 (1992) (holding trial
court abused its discretion by ordering 36-month limitation on
rehabilitative maintenance, where petitioner wife had medical
condition for which she was under doctor's care); In re Marriage of
Shields, 167 Ill. App. 3d 205 (1988) (holding trial court did not
abuse its discretion in ordering petitioner wife to pay maintenance
to respondent, since respondent suffered a debilitating stroke).
In the present case, petitioner does not seek an increased share
of the marital assets or maintenance because of his alleged illness.
Petitioner s pleadings do not even raise an alleged illness. In other
words, petitioner is not attempting to abuse the Act s privilege by
using his alleged ill health as a sword rather than as a shield. The
trial court may simply assume petitioner is in good health and needs
no extra consideration for ill health. Accordingly, by seeking an
equal division of the marital assets without maintenance, respondent s
pleadings do not specifically or affirmatively place his health in
issue. See Webb, 73 Ill. App. 2d 405 (plaintiff s general allegation
of pain and suffering as opposed to a specific claim for damages based
on plaintiff s mental condition does not put plaintiff s mental health
in issue); D.C., 178 Ill. 2d 551 (plaintiff did not seek any damages
due to mental health injury or any related expenses).
Additionally, we note that, if respondent believes she deserves
an increased share of the marital assets or a maintenance award,
putting her own health in issue, she can attempt to prove that she is
ill. Respondent may rely on her own medical records to carry her
burden of proof on this issue.
3. Personal Injury Claim/Pension Valuation
Respondent did not raise in the trial court her arguments
regarding her personal injury claim and the parties pensions. Thus,
respondent waived both arguments on appeal. See Bloink v. Olson, 265
Ill. App. 3d 711, 716 (1994)(issues raised for first time on appeal
are waived). In addition, relevancy and difficulty are not
determinative of whether petitioner put his physical health in issue;
the question is whether petitioner specifically or affirmatively put
his physical health in issue. See D.C., 178 Ill. 2d 551, 566.
Furthermore, respondent s analysis regarding her personal injury
claim is misplaced. Respondent, citing Agosto v. Trusswal Systems
Corp., 142 F.R.D. 118 (E.D. Pa. 1992), contends that the trial court
should consider a party s potentially decreased life expectancy in
determining a "just proportion" where that party seeks a portion of
another party s personal injury claim. In Agosto, however, it was the
personal-injury plaintiff who put his HIV-related information in issue
by pursuing claims for future pain and suffering and lost earning
capacity, thereby necessitating the introduction of life expectancy
information regarding average life span. Accordingly, that plaintiff
waived his statutory privilege. In this case, however, petitioner is
not a personal injury plaintiff pursuing a claim based on life
expectancy.
IV. REASONABLE SUSPICION
Finally, we are reluctant to allow respondent to begin a fishing
expedition. Prior to filing her motion to produce, respondent had
filed a document alleging that the parties were in good health. The
basis of respondent s motion was then stated "on information and
belief." Even on appeal, respondent refers in her brief to
petitioner s "possible testing." It appears that the sole basis for
respondent s request is the fact that petitioner allegedly admits he
is a homosexual. Although homosexuals are in a high risk group for
HIV infection, respondent has not presented even a reasonable
suspicion that petitioner has been tested or is infected.
Finally, if respondent truly believes she may have been exposed
to HIV, she is free to be tested. Nearly three years have passed
since her marriage was dissolved, and modern HIV tests provide
adequate assurances within one year.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of
Ogle County is reversed and the cause is remanded.
Reversed and remanded.
DOYLE and THOMAS, JJ., concur.