Feb 15, 2021

Family Law Flash Points - February 2021

Language in Marital Settlement Agreement Clearly Provided for Non-Modifiable MaintenanceInIn re Marriage of Dynako,2020 IL App (1st) 192116, the First District affirmed the trial court’s ruling that the language in the marital settlement agreement (MSA) provided for non-modifiable maintenance and denial of the husband’s request to modify his maintenance upon a substantial change of circumstances. The husband alleged that his financial circumstances had changed since the entry of the judgment and that he could no longer continue to pay according to the eight-year schedule set forth in the MSA. The applicable language in the MSA stated: “Said maintenance payments shall be non-modifiable pursuant to Section 502(f)” of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101,et seq.2020 IL App (1st) 192116 at ¶5. The husband claimed the maintenance was not truly non-modifiable because it did not specifically provide that the non-modifiability applied to amount, duration, or both. The appellate court affirmed the trial court and held that the language in the MSA was a clear expression of the parties’ intent to make the obligation non-modifiable and that the language as to “amount, duration, or both” need not be included to manifest the parties’ clear intent.Grave Risk Finding by State Trial Court Under Hague Convention UpheldInIn re Parentage of M.V.U.,2020 IL App (1st) 191762, a parentage action in state court, the father filed a petition to return his daughter to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89. The child had been born in Mexico, and the mother moved to Chicago with the child and subsequently filed a petition to establish parentage, custody, and child support. The trial court conducted a hearing under §2-615(e) of the Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,and found that the habitual residence of the minor child was Mexico and there was no material issue of fact regarding the existence of custodial right by the father at the time of the removal. Having determined that the father’s petition met the prima facie requirements for wrongful removal, the court then conducted an evidentiary hearing on whether grave risk of harm or an otherwise intolerable situation existed under Article 13(b) of the Hague Convention. The trial court heard testimony from both parties and found the mother’s testimony credible and the father’s testimony not credible. The court heard evidence of three instances of alleged verbal, emotional, and physical abuse supported by affidavits of witnesses and third-party testimony. The trial court found that the grave risk exception applied, and the appellate court upheld. The appellate court noted the credibility finding by the trial court and engaged in a discussion of the grave risk standard, acknowledging that judicial consensus has not emerged in the area, with some courts taking a narrow view and others taking a broader view. 2020 IL App (1st) 191762 at ¶41. In support of its holding, the First District noted a pattern of escalating violence and a pattern of interference with the mother’s personal liberty, which affected the psychological well-being of the child. The court also stated that a party need not endure years of violent abuse before the grave risk exception should be applied and that it was not necessary to present expert testimony with respect to the psychological effects of the alleged abuse on the child in order to meet the grave risk exception.Oral Admission of Paternity Under Oath Legally Sufficient To Establish ParentageInIn re Armani S.,2020 IL App (1st) 200616, the trial court made a finding of paternity after the putative father, Bruce, accepted parentage orally at a hearing under oath after repeatedly refusing to comply with the trial court’s prior order to submit to DNA testing. The admission of paternity came after the mother had alleged another putative father, Leonard, was the father, but DNA testing proved otherwise. Bruce had originally said he could “possibly” be the father and then changed his position in court and testified he was sure he was the father. 2020 IL App (1st) 200616 at ¶58. The state and public guardian appealed, arguing that the court did not have the authority in this situation to make a finding of paternity when there was doubt over who the father was and when the putative father refused to submit to a DNA test. The appellate court disagreed and affirmed, holding the trial court properly applied §616(a) of the Illinois Parentage Act of 2015, 750 ILCS 46/101,et seq.,which provides that if the court finds that the admission of parentage satisfies the requirements of the section, and there is no reason to question the admission, the court shall enter an order adjudging the child to be the child of the person admitting parentage. While the trial court had the right to compel the putative father to submit to DNA testing, it was not mandatory. Section 616(b) of the Act was satisfied by the putative father’s acknowledgment of paternity under oath. The court also noted that the mother’s prior allegations of another father did not cast doubt on the oral acknowledgment under oath, nor had the state or public guardian provided the name of another person who could have been the child’s father.Wife Forfeited Objections to Hearsay and Classification of Property by Failing To Raise Them at TrialIn the highly litigiousIn re Marriage of Potenza,2020 IL App (1st) 192454, in which the wife, representing herself at trial after multiple attorneys throughout the case withdrew, eventually walked out of the courtroom after the trial court ruled against her on several motions, she appealed the final judgment that was ultimately entered. The appellate court affirmed the denial of a motion for substitution of judge for cause, the agreed order for bifurcation since it was expressly agreed to by the parties in court, an order for sanctions for discovery violations against the wife, and the dismissal of several other temporary motions throughout the pendency of the case. The wife appealed the amount of child support she was to pay because the court based the amount on hearsay testimony and the classification of marital and nonmarital property. The record showed the trial court judge explicitly warned the wife he would continue to hold trial and resolve the outstanding issues even if she left, and the wife still opted to leave the courtroom. The court was within its authority to enter judgment based on the evidence presented. The appellate court vacated an award for guardian ad litem (GAL) fees, which was entered for a GAL in a prior case in Lake County that was dismissed. The GAL needed to intervene in the Cook County case for the petition to be considered. The court also reversed in part an order granting the husband temporary custody and the wife supervised visitation and remanded for a best interests hearing to fashion an appropriate parenting schedule and to review whether supervised visitation should be modified.

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