Feb 01, 2015

IICLE Family Law Flash Points - February 2015

1. Domestic partner allowed to pursue claims of partition, unjust enrichment, and imposition of a constructive trust against former domestic partner. The First District, by allowing a domestic partner to sue her former partner of 26 years under several legal theories including partition, imposition of a constructive trust and claims of unjust enrichment, declined to follow the 1979 Supreme Court case of Hewitt v. Hewitt, 77 Ill.2d 49 (1979) which stood for the proposition that recognizing mutual property rights of unmarried cohabitants would violate the statutory ban on common law marriage. In this case, Blumenthal filed suit to partition a Chicago home she owned with Brewer and Brewer counter-claimed under various theories asking the court to impose a constructive trust over their jointly owned residence where they had raised their three children and a partition action which would adjust her potion of the residence to account for her sole contributions to maintain the property since 2009. The trial court dismissed Brewer’s claims because of Hewitt, but the Appellate Court reversed citing the plethora of changes in Illinois law since 1979, including the adoption of no-fault divorce, the passage of the Illinois Parentage Act, the passage of the Illinois Religious Freedom and Civil Union Act, and most recently, allowing same-sex couples to marry. Because the domestic partners in this case held themselves out as committed partners, bought a house together, raised three children, commingled their assets, and divided up their domestic responsibilities and career objectives between themselves, the Court held Brewer should be allowed to pursue the same common law claims which are available to all people. In ruling, the Court rejected Blumenthal’s argument that Brewer was seeking to retroactively define their relationship as a marriage in order to be able to claim the benefits of such legal status. Blumenthal v. Brewer, 2014 IL App (2d) 132250.2. Order awarding grandparent visitation upheld. The Appellate Court upheld a trial court’s ruling that the maternal grandparents had met their burden of demonstrating that the father’s actions and decisions denying visitation were harmful to the children’s mental, physical, or emotional health. After the minor children’s mother died and their father was severely injured with brain trauma in the same car accident, the maternal grandparents cared for the children for a continuous 18 month period. During this time they were their grandchildren’s primary caregivers. After father recovered, he remarried and moved to New Mexico with the children, cutting off all contact with the grandparents who then brought a petition to establish grandparent visitation. The father’s and grandparent’s evidence painted two completely different pictures of the children’s interaction with the grandparents and each side had experts who rendered an opinion on whether the children would be harmed if they did not have visitation with their grandparents. After a lengthy review of all of the evidence presented to the trial court, the Appellate Court held that the trial court was in a superior position to judge the credibility and demeanor of the parties as well as observe them in court; therefore, the trial court’s ruling that the grandparents should be entitled to visitation was not against the manifest weight of the evidence. Robinson v. Reif, 2014 IL App (4th) 140244.3. Husband was not entitled to Section 2-1301 relief. In a procedurally complex case where the trial court denied husband’s Section 2-1301 motion, the Appellate Court upheld the ruling after husband filed his motion 8 months subsequent to the entry of the default judgment. Husband was held in default after his counsel withdrew and he did not participate in the case for approximately 15 months. The divorce case was also consolidated with a chancery action where husband’s former business partner sued husband to obtain 40,000 CBOE shares that husband had control of. Husband argued that because the default judgment was not a final judgment since the court had reserved the allocation of the 40,000 shares pending the outcome of the consolidated chancery action, the judgment did not dispose of all of the issues incident to the dissolution of marriage. The Appellate Court disagreed and noted that the trial court did not reserve the determination of the allocation of the shares because implicit in the court’s judgment was the recognition that if the business partner succeeded on his claim the parties would not receive any of the shares, and if he did not succeed, then the parties would split the 40,000 shares. Therefore, the default judgment was a final judgment. In re the Marriage of Harnack and Fanday, 2014 IL App (1st) 121424.4. Husband was not entitled to Section 2-1401 relief. Husband claimed that he had a meritorious defense such that the court should vacate a default judgment under Section 2-1401 because the court had overstated the total value of marital property when it took into account and allocated shares of CBOE stock held by husband with his business partners who were not party to the divorce case. He further argued that because these shares were included in the marital estate, wife was awarded more property than she should have been and his partners’ assets were not adequately protected. The Appellate Court held that he showed no evidence that he had a meritorious defense because he did not have standing to assert the judgment should be vacated on behalf of his partners, and he did not submit a sufficient affidavit required under 2-1401. The Court also held that even if he had a meritorious defense, he could not have proved that he exercised due diligence in bringing such claim. The record showed he refused to engage in the case for 15 months; he tried to remove the case to federal court multiple times; he obtained a Florida divorce under false pretenses; and he fraudulently presented a forged divorce decree in order to obtain a religious divorce, among other things. The Court noted that his behavior was so egregious and contemptuous that substantial justice did not demand that the default judgment be set aside. In re the Marriage of Harnack and Fanday, 2014 IL App (1st) 121424.

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