Nov 04, 2020

Family Law Flash Points - November 2020

1. Interim fee award not subject to immediate appeal. In a post-judgment matter which went up on appeal for a second time, the Appellate Court dismissed the appeal for lack of jurisdiction. Husband appealed a $25,000 prospective attorney fee award the trial court had granted wife in connection with the first appeal. The Appellate Court has consistently recognized that orders awarding interim attorney fees are not final and appealable. Section 508(a) provides that interim fees may be awarded in a pre-judgment dissolution proceeding in accordance with Section 501(c-1) and in any other proceeding under this subsection. The statute also references attorneys’ fees incurred in the defense of an appeal. Husband also argued the $25,000 award was a final fee award, but the Court disagreed because the appeal in question (the first appeal) was still pending at the time the trial court entered the interim fee order. The Court also noted the issue of the proper calculation of child support was still pending before the trial court such that the award of the attorneys’ fees was interlocutory. Therefore, the Court dismissed the appeal for lack of jurisdiction. In re Marriage of Gabriel, 2020 IL App (1st) 191840.2. Trial court’s ruling regarding “Special Immigrant Juvenile” finding reversed. In a parentage action, a mother from Guatemala sought “Special Immigrant Juvenile” (SIJ) status for her son, which is a predicate finding required in order for a minor to be qualified to petition to become a lawful permanent resident of the United States. Mother sought such finding in her petition to establish parentage and for sole decision-making responsibilities of the child. The trial court denied the request for SIJ status after interpreting and applying the applicable federal statute (8 U.S.C. 1101(a)(27)(J) (2018)). The Appellate Court reversed. The trial court incorrectly interpreted what it meant under the federal statute for a child to be “dependent” upon a court. A child need not be declared a ward of the state, placed in long term foster care, or have a nonparent guardian appointed in order to qualify for SIJ findings. Rather, a child may be considered dependent upon the court when the court is required to make a judicial determination about the child’s’ custody and care, and a court order allocating sole decision-making responsibilities falls squarely within this purview. Further, because the minor child’s father had abandoned him and his mother (He could not be found and was held in default in these proceedings.), this satisfied the parental abandonment requirement of the federal statute to qualify for SIJ status. The Court also noted that in November 2019, new language was added to both the Illinois Parentage Act and the Illinois Marriage and Dissolution of Marriage Act regarding SIJ findings. In re Parentage of Ervin C., 2020 IL App (2d) 200236.3. Indigent litigant entitled to transcripts for appeal purposes free of charge. Husband, a pro se litigant, who was also found to be indigent and entitled to a fee and cost waiver at the trial court under Supreme Court Rule 298, represented himself at his divorce trial, which lasted six days. He decided to appeal the trial court’s ruling and requested from the court that he be entitled to a waiver of the cost of the transcripts he needed for the appeal. The trial court initially denied his request, but upon a motion for reconsideration, the court certified the following question: “When a self-represented litigant has been granted a waiver of fees under 735 ILCS 5/5-105(a)(1), is such litigant entitled to a waiver of court transcript fees under 735 ILCS 5/5-105.5 and Supreme Court Rule 298?” The Second District answered in the affirmative. The Court engaged in a lengthy statutory analysis of Sections 5/5-105 and 5/5-105.5 and SCR 298 in reaching its conclusion. The Court acknowledged that the plain language of the statutes and the supreme court rule did not directly address the question posed and therefore looked to legislative purposes and intent. The Court concluded that the cost of transcripts necessary for an appeal is within the “fees, costs, and charges” that may be waived for indigent litigants, regardless of whether the litigant is represented by counsel under Section 5/5-105.5 or self-represented under Section 5/5-105. Further, the combined language and intent of the statutes and Supreme Court rules makes it clear that the Supreme Court envisioned that the costs of an appeal should not be a barrier to an indigent litigant. The Second District qualified its ruling by adding that only transcripts necessary to the appeal are entitled to be provided free of cost – not necessarily all transcripts. The Court remanded the case to the trial court for determination as to which transcripts were necessary to the appeal and for husband to be provided with those transcripts. In re the Marriage of Main, 2020 IL App (2d) 200131.

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