In Re Marriage of Earhart

JUSTICE McNAMARA, concurring in part and dissenting in part:

I concur with the majority holding that the trial court properly determined the amount of child support. I dissent, however, from the majority holdings which affirm the trial court’s refusal to qualify respondent’s witness Damisch as an expert, and the trial court’s denial of respondent’s request for a continuance.

I find the trial court erred in not qualifying Damisch as an expert witness, especially in view of the trial court’s confusion regarding the basis upon which it rejected the testimony. I also find that the trial court committed a gross abuse of its discretion in denying the request for a continuance.

An expert witness may acquire special knowledge by study or experience or a combination of both. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835 , 462 N.E.2d 645 .) Here, Damisch testified that he acquired his knowledge of retirement pensions through both extensive experience and education. The Treasurer of the State of Illinois designated Damisch as a member of the Illinois Judicial Retirement Board for four years. In 1979 Damisch tried a major pension case, which required the compilation and review of all judicial opinions on pension-fund cases in the country. Since then, Damisch has participated in “a considerable number of divorce cases *** [involving] the question of pension funds.” In addition, Damisch has been involved in other employer pension-fund cases. He has examined and valued pension funds for clients. Damisch testified further regarding his involvement with large pension funds for Illinois Bell, Peoples Gas, Bell Laboratories, Northern Illinois Gas Company, Illinois Municipal Retirement Fund, Northfield Police Pension Fund, Wilmette Police Pension Fund, Washington National Life Insurance Company, Kane County Employees Pension Fund, Illinois Judicial Retirement Fund, Northwest National Bank Retirement Fund, and numerous other pension-fund plans. Additionally, Damisch has participated in Chicago Bar Association seminars related to pensions; has studied texts regarding computation of compound interest and finding the present value of money, which are necessary skills for valuing a pension fund; and has completed both basic and advanced computer classes designed to make the process of pension valuation faster.

Generally, a trial court allows a witness to testify as an expert if he possesses knowledge or experience beyond that of the average person. (Atria v. Geist (1978), 64 Ill. App. 3d 88 , 380 N.E.2d 1187 .) Damisch’s testimony clearly reveals that he possesses knowledge of pensions beyond that of the average person. The threshold test of competency of an expert witness is whether he discloses sufficient knowledge of the subject matter merely to entitle his opinion to go to the trier of fact. (Roark v. Musgrave (1976), 41 Ill. App. 3d 1008 , 355 N.E.2d 91 .) Damisch met this threshold requirement when he established his extensive experience with many large, complex pension funds along with his other valuation experience and training. The extent of the witness’ knowledge or degree of experience goes only to the weight of his testimony, not his competency to testify as an expert. See Franzen v. Dunbar Builders Corp. (1971), 132 Ill. App. 2d 701 , 270 N.E.2d 118 .

An expert possesses special knowledge, and if that testimony will assist the trier of fact, it is error to exclude it. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580 , 464 N.E.2d 644 .) In the present case, respondent’s evidence regarding the value of his pension would have assisted the court as trier of fact in this bench trial, particularly in light of the substantial difference in the valuations offered by the parties. Petitioner’s witness valued the pension at $140,000, while Damisch stated in an affidavit supporting the motion for reconsideration that he valued the pension at $16,362. Respondent’s counsel informed the court of this disparity during the trial when he attempted to establish the importance of admitting Damisch’s testimony as evidence. I believe the trial court abused its discretion in refusing to qualify Damisch as an expert witness. Moreover, I disagree with the majority’s reasoning for holding otherwise.

The majority states that “the trial court did not preclude Damisch from testifying as an expert witness because he was not an actuary, as Donald mistakenly argues.” The record does not support that statement. At the post-trial hearing the court clearly stated that it precluded Damisch from testifying precisely because he was not an actuary. The trial court repeatedly emphasized that the issue “was he presented him as an actuary and he wanted the court to take him as an actuary *** and it was shown that he was not an actuary.”

The majority goes on to say that the trial court found the witness, was not properly qualified as an expert in the field of pension funds. Yet at the post-trial hearing, the trial court explicitly denied that the witness was ever offered as an expert on pensions. “If you recall, counsel never said that he wished to qualify him as an expert, therefore, on pensions. He wanted him to be qualified as an actuary which I have no right to do. He wasn’t an actuary.” The trial court emphasized Damisch’s qualifications as an expert on pensions was never raised as an issue. “I am not going into Mr. Damisch’s qualifications to render an opinion in regard to a pension fund. That was not the issue. The issue was he presented him as an actuary ***.” At trial, however, the court had in fact found that Damisch’s credentials and experience failed to establish “the fact [that] he is an expert in pension funds and qualified to give his opinion. *** [H]e has not been shown to be an expert in this field.” Because of the trial court’s confusion regarding the basis upon which it rejected the testimony, and its indication that it might have ruled otherwise absent that confusion, I find the majority’s reasoning to be an improper basis for affirming the trial court.

The majority goes on to say that counsel had the opportunity to “further question Damisch and attempt to qualify him as an expert. However, Donald’s counsel made no further attempt to qualify the witness. Instead, counsel chose to rest his case.” As stated above, I find that no further questions were necessary to qualify the witness as an expert. Moreover, the court could have allowed preliminary cross-examination as to the witness’ qualifications if it believed that was necessary. (See Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206 , 371 N.E.2d 1228 .) Additionally, the record reveals that counsel repeatedly attempted to use Damisch as an expert in pension valuation. The trial court found Damisch was not qualified as an expert but respondent’s counsel still asked to “proceed with the examination as to his analysis.” The court replied, “But not as an expert.” Counsel again asked permission for Damisch to “testify as to his analysis of pension information.” The court immediately sustained an objection and said: “I am sure Mr. Damisch understands that I cannot allow him to testify as an expert on pensions. *** He cannot testify as an expert.” When counsel asked if the ruling was that an actuary was required, the court replied: “I gave my ruling. I said you have not qualified him to be an expert in pension funds. There has not been a sufficient foundation laid for this court to allow him to testify in this regard. I am not going to keep ruling over and over ***.” Counsel persisted: “Then the court is indicating you will not accept any testimony?” The court replied: “[Y]ou did call him as an expert and I don’t feel has has been qualified.” It was only at that point that counsel conceded that “we cannot proceed at this point.” Thus, I disagree with the majority view that respondent merely “chose to rest his case.”

The majority also states that counsel “failed to make an offer of proof for the record indicating any other information Damisch could provide regarding his qualifications.” Damisch, however, had sufficiently established his qualifications. The majority concludes that “without such an offer, we are unable to ascertain the nature and significance of the excluded testimony.” If the majority seeks an offer of proof regarding an expert’s qualifications to testify, however, this would have been irrelevant to the substantive “nature and significance of the excluded testimony.” And, an offer of proof regarding the excluded testimony, i.e., Damisch’s valuation of the pension, would have been irrelevant to the issue of whether Damisch was qualified to testify as an expert.

For these reasons, I believe the trial court committed reversible error in not permitting Damisch to testify as to the value of respondent’s pension.

I also find that the trial court committed a gross abuse of its discretion in denying respondent’s request for a continuance following his failure to qualify Damisch as an expert witness. On good cause shown, the court has the discretion to grant a continuance on just terms at any time prior to judgment. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1007.) After the cause has been reached for trial, the request for a continuance must be supported by a sufficient excuse for the delay. (87 Ill. 2d R. 231(f).) Respondent here produced an expert witness in good faith. The testimony regarding the valuation of the pension was very important to respondent’s case, and to the court’s ability to fairly distribute the marital property. This is sufficient excuse for a brief delay. The court should not refuse to grant a continuance where the ends of justice clearly require it. (Reecy v. Reecy (1971), 132 Ill. App. 2d 1024 , 271 N.E.2d 91 .) Here, the ends of justice required a full presentation of evidence regarding the value of the pension. Instead, the court stated that the continuance was not possible because the case was “on trial.” This reasoning is weakened considerably by the fact that this bench trial had already been “on trial” intermittently for almost four months. Furthermore, in setting a time for closing arguments the court stated that it left two full days open during the week for this case and that those days would not be needed for the presentation of evidence. At a minimum, the court could have allowed an additional witness to testify on one of those days.

The trial court’s abuse of discretion in denying respondent’s request for a continuance is further shown by a review of the trial record and the post-trial hearing record. At the post-trial motion hearing, the court explained: “Counsel did not say to this court [at trial], ‘Judge, I am being taken by surprise, I am being hurt, may I have a continuance?’ *** [H]e never made a record stating that [he wanted] *** another date to bring in an actuary. He never asked me that.” These assertions directly contradict the trial record, which shows counsel expressed surprise when he stated: “Well, in light of the court’s ruling, obviously, we cannot proceed at this point.” Counsel also stated: “[I]t was important for the court to have [the pension valuation] information *** [and] I would request additional time to proceed in this regard.”

The majority states that the request was properly denied because respondent’s counsel failed to “explicitly advise the court of his reason for a continuance, whether or not he desired to call another expert witness, or the time period he would require to achieve his purpose.” A careful review of the record reveals otherwise. Counsel did in fact specify a “reason for a continuance” when he stated: “[I]t was important for the court to have information regarding the valuation of pensions in this particular case because there is a wide difference in our analysis from the analysis presented by the witness for the petitioner.” Thus, the reason for the requested continuance was to allow respondent to present that information regarding the value of the pension, which was a major portion of the marital property to be distributed.

The record shows that counsel advised the court that he “desired to call an expert” when he stated: “[I]t was important for the court to have information *** [and] I would request additional time to proceed in this regard.” The court recognized the information to be presented would be in the form of a witness when it replied, “We cannot *** allow you to call more witnesses ***.” Clearly, the reason for the requested continuance was to allow time to present a different expert witness.

The record also reveals that counsel’s failure to advise the court of “the time period he would need to achieve the purpose” of calling a new witness was solely due to the trial court’s immediate and emphatic denial of the request for a continuance. Counsel was not allowed to specify a time period before the trial court denied his request. The court’s discretion in granting or denying a request for a continuance should be exercised judiciously and not arbitrarily. (Bullistron v. Augustana Hospital (1977), 52 Ill. App. 3d 66 , 367 N.E.2d 88 .) I also note that when petitioner’s counsel here requested additional time to produce an expert for rebuttal, he merely stated that he would offer the testimony “on another day.” The court readily agreed to that request without imposing a stringent requirement that counsel specify an exact time period in which he would produce the witness.

For these reasons, I find that the trial court abused its discretion in denying the request for a continuance.

Accordingly, I would affirm the trial court’s award of child support. I would reverse the trial court’s rulings which found respondent’s witness not qualified to testify as an expert and which denied respondent’s request for a continuance. I would remand for a proper determination of the distribution of the marital property.