Aug 15, 2022

IICLE Family Law Flash Points - August 2022

Agreed Plenary Order of Protection Upheld After Hearing on Motion To VacateInMcNulty v. McNulty,2022 IL App (1st) 201239, a son with power of attorney over his elderly father filed and obtained an emergency order of protection on behalf of his father against another son (the petitioner’s brother and respondent). The father also lived with a third son who was involved in the proceedings by virtue of residing with his father. At the hearing on the return of the emergency order, an agreed plenary order of protection was entered, which provided among other items conditions on which the respondent could have contact with his father, including contact in the presence of certain individuals. Ten days after the entry of the plenary order of protection, the respondent moved to vacate it, arguing that there was no meeting of the minds because he had agreed to the order’s entry only because he thought there was also an agreement for the family to attend mediation in order to resolve the order of protection. The trial court denied the motion to vacate, and the appellate court affirmed. Under §2-1301 of the Illinois Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,the respondent had to show that substantial justice was not achieved by the agreed order, as set out by four factors inDraper & Kramer v. King, Inc.,2014 IL App (1st) 132073, 24 N.E.3d 851, 388 Ill.Dec. 571. The trial court did not abuse its discretion in refusing to vacate the order, especially because the order was not a complete ban on the respondent having contact with his father; therefore, it could not be said that substantial justice was not achieved.Trial Court Did Not Abuse Its Discretion by Considering Unsworn Statements by Counsel at Hearing on Motion To Vacate Plenary Order of ProtectionAt issue at a hearing on a motion to vacate a plenary order of protection filed ten days after the entry of the agreed plenary order was whether the trial court properly considered the nonmoving party’s counsel’s unsworn statements, although such statements were not in counsel’s written brief.McNulty, supra.The appellate court held that this was not an abuse of discretion considering that the trial court considered unsworn statements of both parties’ current counsels at the hearing and that there was a representation that the respondent’s former counsel refused to sign an affidavit supporting all of the facts set forth in the respondent’s motion to vacate. At issue was whether the respondent had agreed to enter the plenary order upon his understanding of a condition that his family had agreed to attend mediation in order to resolve the plenary order. The respondent’s motion did not allege that anyone but his prior counsel (who withdrew after the entry of the plenary order) spoke with him about mediation. The court also noted that the transcript contained testimony in which the court asked the respondent specifically if he understood the terms of the order and whether he agreed to it, to which the respondent answered in the affirmative. The respondent heard the list of conditions, none of which included mediation, and he stated that he had freely agreed to those terms.Motion To Modify Maintenance Denied Due to Catchall Provision in MSA Providing That Agreement Was Non-Modifiable Except as to Support, Custody, or Visitation of Minor ChildInIn re Marriage of Scarp,2022 IL App (1st) 210711, ¶11, the trial court denied the husband’s motion to modify a maintenance obligation due to catchall language at the end of the marital settlement agreement (MSA) that provided that the agreement “shall not be changed, modified or altered” by court order except by mutual consent of the parties. The language included an exception for support, custody, or visitation of the minor children. The husband appealed, and the appellate court affirmed. The catchall provision at the end of the MSA was a clear and unambiguous statement that the entire MSA was non-modifiable except for the terms concerning the support, custody, and visitation of the minor children or when the parties mutually consent.Catchall Provision of MSA Providing for Non-Modifiability of MSA Permitted Under Amended §502(f) of IMDMAAt issue on appeal was whether a catchall provision of an MSA providing that the agreement was non-modifiable except by mutual consent of the parties was a bar to a motion to modify maintenance (see above discussion ofScarp). The court concluded that the legislative intent of the 2016 amended version of §502(f) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/502(f), combined with the Illinois Supreme Court caseIn re Marriage of Dynako,2021 IL 126835, 186 N.E.3d 393, 452 Ill.Dec. 669, continues to permit the parties to an MSA to employ a catchall provision to effectuate the intent that the entire MSA not be modifiable. If the parties employ such a catchall provision of non-modifiability, this encompasses an agreement that the maintenance is non-modifiable in its entirety. The court further stated that this reasoning was consistent with the pre-amendment caselaw, which held that such catchall agreements were interpreted as sufficient to make maintenance non-modifiable, and that there was nothing in the plain language of the amended §502(f) indicating that the legislature intended to change this.

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