Aug 01, 2018

IICLE Family Law Flash Points - August 2018

1. Petitioner in an Order of Protection case properly allowed to testify to facts not contained in the body of the petition. At a hearing on a plenary order of protection, the petitioner testified to two specific fact patterns that did not appear in her underlying petition: (1) that the respondent had pushed their son into a wall; and (2) that the respondent hit their son in the head with a cell phone. The trial court issued a one year order of protection and the respondent appealed on the grounds that the petitioner should not have been able to testify as to acts not contained in her underlying petition. The Appellate Court disagreed and affirmed holding that in the petition, it was generally alleged that the child was terrified of respondent; that respondent had tried to take the child out of his school; and the child was afraid that his father would just come and take him from school. Section 214 of the Domestic Violence Act provides that in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern and consequences of the respondent’s past abuse of petitioner or any family or household member as well as the danger that any minor child will be abuse. Therefore, not only was the trial court allowed to consider the evidence that the respondent had recently pushed the child and hit him in the head with a cell phone, it was required to do so. Sandberg v. Brian B., 2018 IL App (2d) 180082.2. Net proceeds from a personal injury settlement attributable to damages for pain and suffering and disability is income for child support purposes. In this matter, the Fourth District joined with the Fifth District case of In re the Marriage of Fortner, 2016 IL App (5th) 150246, in holding that pain, suffering and disability damages are income for child support purposes. This holding is directly contrary to the Second District’s holding in Villanueva v. O’Gara, 282 Ill.App.3d 147 (1996). In the matter before the Fourth District, the mother had received a settlement from a personal injury lawsuit where it was undisputed that the net proceeds received after deducting attorney fees and other previously incurred expenses was $158,972. $2,430 of this amount was attributable for lost wages which was properly attributable as income for calculating child support. The remaining $156,542 was damages for future medical expenses, pain and suffering, and disability. The Court held that Vallanueva failed to consider the effect damages awarded for pain and suffering and disability had on the receiving parent that was a positive impact on the parent’s ability to support his or her child. The Court believed its holding struck a balance between assuring reasonable provisions are provided for children and the realities of the personal and financial costs associated with injuries for which a personal injury award is intended to compensate. In re the Marriage of Plowman and Lawson, 2018 IL App (4th) 170665.3. Motion to dismiss malpractice action upheld under doctrine of res judicata. In a heavily litigated proceeding which also involved the appeal of the underlying divorce judgment, a former client filed a malpractice claim against his former counsel in an effort to recover his attorneys’ fees paid to divorce counsel, appellate fees involving the divorce judgment, and the fees he incurred on the malpractice case. He did not claim any damages related to the division of his fireman’s pension, which was the subject of the appeal relating to the divorce judgment. Divorce counsel brought a petition to set final fees and after a hearing, was awarded all of their fees. Subsequently, the former client filed his malpractice action and counsel moved to dismiss. The trial court granted divorce counsel’s motion to dismiss under the doctrine of res judicata. The client appealed and the Appellate Court affirmed. The Court found the core elements of res judicata met: (1) identify of parties (2) final judgment on the merits being rendered and (3) identify of cause of action. The Court relied heavily on its prior case of Bennett v. Gordon, 282 Ill.App.3d 378 (1996) and held that the client could not now bring a malpractice suit to relitigate issues that were already resolved against him at the prior fee hearing. Tebbens v. Levin & Conde, 218 IL App (1st) 170777.

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