Apr 02, 2018

IICLE Family Law Flash Points, April 2018

1. Absence of precise Rule 304(a) language fatal to obtaining appellate jurisdiction.Husband appealed a post-judgment denial of his motion to reconsider the denial of a motion to abate child support payments.He had filed a motion to abate support in response to the Illinois Department of Healthcare and Family Services (IHFS) obtaining an order finding him in indirect civil contempt for failure to pay support.The trial court stayed the commitment for the contempt finding and later entered subsequent orders on the contempt including one setting a new support amount and arrearage payment.The trial court’s order relating to the contempt was not final and appealable for two reasons. First, a contempt order is not final and appealable until the party in contempt has been sanctioned or committed.Second, the order which stated, “[t]his is a final and appealable order” did not contain sufficient language to comply with SCR 304(a).The Court relied on In re the Marriage of Teymour, 2017 IL App (1st) 161091 wherein it recently aligned with the Second and Fourth Districts to adhere to Rule 304(a)’s explicit mandate that a final order disposing of one of several claims may not be appealed without an express finding that “there is no just cause for delay.” In re the Marriage of Sanchez, 2018 IL App (1st) 171075.2. Appellate Court had jurisdiction to hear appeal of plenary order of protection, but had to affirm because the appellant did not present an adequate record.Husband appealed the issuance of a plenary order of protection against him in favor of his ex-wife and two children.The Appellate Court had jurisdiction to immediately hear the appeal of a denial of a motion to vacate an order of protection because an order of protection is injunctive in substance and a motion to vacate same is considered to be one seeking to dissolve or modify an injunction.However, husband, who was pro se, presented an insufficient record for the Court to determine whether the trial court abused its discretion and failed to present cogent authority supporting his legal position.Therefore, the Court had to affirm the trial court’s order.At the end of the opinion, the Court references the increasing number of self-represented litigants in the trial and appellate courts and reinforces the idea that a self-represented litigant is held to the same standard that an attorney would be held to.The Court also references several websites that have been established with forms and guidelines for self-represented litigants. In re the Marriage of Sanchez, 2018 IL App (1st) 171075.3. Eight hour right of first refusal upheld.Husband appealed several portions of the trial court’s final parenting plan and judgment, one being an eight (8) hour time period to trigger the right of first refusal provision.Husband argued that wife’s flexible work schedule would allow her to manipulate the time she was away from the children to just under 8 hours, thereby depriving him of seeing his children.The Appellate Court affirmed noting that husband’s argument was based on pure speculation and that husband’s desired time frame of four (4) hours could lead to more contact between the parties, and thus, greater conflict.The Court also held that the 8 hour period was reasonable in light of the facts of the case.The Court also affirmed the trial court’s parenting schedule and held that it was not required to address each and every best interest factor under Section 602.7 in its opinion since it heard testimony at the trial and could weigh the credibility of all of the witnesses, including the Guardian Ad Litem, who addressed each factor in his report. In re the Marriage of Whitehead, 2018 IL App (5th) 170380.4. Strict adherence to filing deadlines required with electronic filing.Although not a family law case, the Second District has opined on the issue of filing deadlines and the impact of electronic filing in the case of Peraino v. The County of Winnebago, et.al., 2018 IL App (2d) 170368.Plaintiff in a personal injury suit attempted to electronically file a motion to reconsider shortly before midnight the day it was due, but the motion was not timely uploaded causing it to be file-stamped on 12:03 a.m. the next day.He tried to start the uploading process at about 11:58 p.m. He sought to have the motion to reconsider deemed filed on the actual due date, but was denied.The Appellate Court held that trial court lacked jurisdiction to make such a ruling and it lacked jurisdiction to hear the merits of the appeal and dismissed the matter in its entirety.In its opinion, the Court noted that the plaintiff conceded that the problem was not predicated upon a technical problem in the e-filing system, but rather user error and problems experienced by the filer.The Court also noted that while its opinion may seem harsh, as the plaintiff lost both his chance to have a motion to reconsider addressed, and a potential appeal, that he had 30 days within he could have filed the motion to reconsider, he could have obtained an extension within those 30 days, or he could have requested from the Appellate Court for leave to file a late notice of appeal under ILSCR 303(d), but he did not. Peraino v. County of Winnebago, 2018 IL App (2d) 170368.

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