Apr 28, 2023

IICLE Family Law Flash Points - April 2023

Denial of Motion To Dismiss Lawsuit Filed by Testator’s Children To Enforce Judgment for Dissolution of Marriage Entered in 1985 AffirmedInIn re Marriage of Krilich,2023 IL App (1st) 221198, the testator’s children filed a petition against the representatives of the testator’s estate to enforce the terms of a 1985 judgment for dissolution of marriage, specifically, the provision in which both parties agreed to execute wills leaving not less than 50 percent of their respective estates to children or grandchildren of their marriage. The parties to the dissolution judgment had six children, and at issue when the testator died was the distribution of an estate valued in the hundreds of millions of dollars. The testator, who resided in Florida at the time of his death, left his estate to a pass-through trust of which his second wife was the primary beneficiary and his children the remainder beneficiaries. The testator’s representatives filed a motion to dismiss for lack of personal and subject-matter jurisdiction, which the trial court denied. The representatives sought an interlocutory appeal, which was granted, and the appellate court affirmed the trial court’s ruling. The trial court’s jurisdiction was predicated on a judgment in which it explicitly retained jurisdiction to enforce. Further, the relief sought by the children in this proceeding was not similar to the pending probate action in Florida. While the representatives argued that the trial court had no personal jurisdiction over them, they were being sued not as individuals but rather in their capacity as representatives of the testator’s estate, and an action against a decedent that arises in his or her lifetime lies against the administrator in his or her representative capacity. The representatives also argued that the trial court lacked quasi in rem jurisdiction over the testator’s estate, but because the court retained personal jurisdiction over the testator to enforce its judgment, quasi in rem jurisdiction was not required for the case to proceed.59-Year-Old Adult Putative Son’s Action for Paternity Allowed To Proceed Under Parentage Act of 2015The adult putative son of blues musician Buddy Guy filed a petition to establish parentage.In re Miller,2023 IL App (1st) 210774. At the time he filed his petition, he was 59 years old and Guy was 83 years old. His petition sought no monetary relief, and Guy did not challenge the DNA test results that established biological paternity. The trial court found the application of the Parentage Act of 2015, 750 ILCS 46/101,et seq.,specifically §607(a), which permits that a petition to establish parentage may be commenced at any time, even after the child becomes an adult, but only if the child initiates the proceeding, to be unconstitutional as applied to the facts. The trial court dismissed the petition to establish parentage, and the appellate court reversed. The appellate court held that there was no dispute that §607 of the 2015 Act authorized the putative son’s lawsuit. On appeal, Guy argued that the putative son had a right to sue under the Parentage Act of 1984 and such right was extinguished by that Act’s statute of limitations. As a result, Guy had acquired a vested right in the expiration of the putative son’s claim, which was a constitutionally cognizable due-process right. Under the 1984 Act, a child shall be barred from seeking parentage if the lawsuit was brought later than two years after the child reached the age of majority. Guy argued for an equitable extension of the 1984 Act’s statute of limitations, meaning that the putative son would have had two years after the effective date of that statute to establish parentage and thereafter be prohibited from bringing suit. However, Guy offered no cases or other authority to support such an equitable extension argument, and the court held that such an equitable extension was not appropriate. Because the putative son had no definite right to seek an adjudication of parentage under the 1984 Parentage Act, Guy had no definite due-process interest in not being sued under such Act. Because Guy did not have a definite due-process interest, there was no need for consideration of the raised constitutional issues, and the court declined to analyze or rule on the constitutionality of the 2015 Act.First District Affirms Trial Court’s Finding of Residence Owned by Husband Prior to Marriage and Transferred to Land Trust with Wife as Beneficiary as Marital PropertyInIn re Marriage of Klose,2023 IL App (1st) 192253, the husband appealed the trial court’s ruling that the home he owned prior to the marriage, and which would later become the marital residence, was marital property. During the marriage the parties retained the services of an estate planning attorney, who created a land trust to which the husband transferred ownership of the home and of which the wife was named the beneficiary as well as two reciprocal trusts for the parties. The estate planning attorney testified at trial regarding the creation of the trusts. He also testified that the husband contacted him when the marriage was deteriorating and attempted to remove the wife as the beneficiary of the land trust. The trial court found that the husband’s meetings with the estate planning attorney to potentially remove the wife as the land trust’s beneficiary evidenced that he understood he had gifted the home to the wife. The finding was further corroborated by the estate planning attorney’s testimony. The husband presented no evidence refuting the estate planning attorney’s testimony or establishing that he was forced to sign the trust documents. Therefore, the trial court’s ruling was not against the manifest weight of the evidence.Trial Court’s Characterization of Three Investment Accounts Created During Marriage as Marital Property AffirmedInKlose, supra,the husband claimed that three investment accounts created during the marriage were formed with personal savings he had acquired from his employment back to 1954 and therefore should be his nonmarital property. The evidence showed that the total wages he earned prior to the marriage was $333,695 and the investment accounts totaled $1,551,689.92 at the time of trial. 2023 IL App (1st) 192253 at ¶24. The husband conceded at trial that there was no way to trace the funds because there was commingling with marital earnings, but he argued that his testimony alone was enough to establish their nonmarital character without documentary evidence regarding the source of funds. He relied onIn re Marriage of Henke,313 Ill.App.3d 159, 728 N.E.2d 1137, 245 Ill.Dec. 780 (2d Dist. 2000), for the premise that the lack of documentary evidence does not preclude a party from rebutting the marital property presumption. 2023 IL App (1st) 192253 at ¶26. However, his reliance was misplaced becauseHenkewas essentially a reimbursement issue, not a characterization issue. The appellate court affirmed the trial court’s ruling and held that, given the lack of documentation regarding the source of the funds used to establish the accounts during the marriage, the husband’s testimony alone was not enough to rebut the presumption of marital property.Trial Court Did Not Abuse Its Discretion in Clarifying Its Judgment 30 Days After Entry of JudgmentInKlose, supra,the wife filed a motion to clarify the judgment under §2-1401 of the Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,requesting the trial court to clarify how it was treating $222,045.76 that the husband had withdrawn from his retirement account during the pendency of the case as applied to the overall distribution of property, which was at issue. The trial court clarified the judgment and awarded the wife 50 percent of such funds, which was consistent with its overall allocation of marital property. The husband appealed, claiming the trial court had lost jurisdiction to modify the judgment after 30 days from its entry. The appellate court held that the trial court’s order was not a modification of the property allocation but akin to enforcement because it essentially distributed the funds in accordance with its overall property allocation.

News and Insights

Jun 11, 2024

How Prior Planning Prevents Poor Performance

Everyone loves a June wedding! When people ask a couple on the brink of their vows how ...
May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.