Feb 01, 2017

IICLE Family Law Flash Points - February 2017

1. Compliance with statutory prerequisites are a different issue from whether a trial court has subject matter jurisdiction. In a case brought before the Second District on a UIFSA (Uniform Interstate Family Support Act) claim, ex-husband appealed the denial of his motion to dismiss ex-wife’s post-judgment claim concerning modification of support on the grounds that the original Illinois trial court order modifying his support was void for lack of subject matter jurisdiction. The parties had divorced in Connecticut but both had subsequently relocated to DuPage County. Husband enrolled the Connecticut judgment in Illinois and the Illinois trial court subsequently modified his support obligation before husband challenged the validity of the order. The Appellate Court affirmed the trial court’s denial of his motion to dismiss reiterating the line of cases which provide that although UIFSA (750 ILCS 22/211) uses the terminology “jurisdiction,” it must be understood only as a procedural limit on when the trial court may modify a support order issued in another state, and not a precondition to the exercise of the court’s inherent authority since the trial court is vested with authority to hear justiciable matters through the Illinois Constitution. See McCormick v. Robertson, 2015 IL 118230 ¶18. In re the Marriage of Armstrong, 2016 IL App (2d) 150815.2. Post-judgment modification of parental decision making upheld. In this highly litigated post-judgment modification trial, the court ultimately modified sole parental decision making to allocate it from mother to father. The trial court heard several days of trial, including testimony from the court’s expert evaluator who issued an original report and update, and mother’s own expert evaluator. The original report of the court’s evaluator recommended decision making be modified from mother to father, but the updated report opined that mother had shown improvement in taking responsibility for her actions and acknowledging that her actions harmed the children, and therefore a modification was not necessary. The Child Representative also recommended that decision making stay with mother. However, the trial court decided that a modification was in the best interest of the children. The Appellate Court affirmed, noting that the trial court was in the best position to make judgments with respect to the parties’ credibility (the trial court noted mother was not credible throughout her testimony) and that the trial court was not obligated to follow the recommendations of the expert evaluator or Child Representative. In its opinion, the trial court wrote that the biggest factor that weighed in favor of the modification was that the father was more likely to facilitate a relationship between mother and the children than mother was with the father. In re the Marriage of Dowd, 2016 ILApp (1st) 160098.3. Illinois had personal jurisdiction over mother who resided in North Carolina under the Parentage Act. After father filed a petition to establish a parent-child relationship, mother filed a motion to dismiss on the basis that Illinois did not have personal jurisdiction over her. The trial court disagreed and entered a preliminary injunction preventing mother from removing the minor child from Illinois. Mother, a resident of North Carolina, filed a petition for leave to appeal which was granted on the sole issue of jurisdiction. The Appellate Court affirmed based on Section 201(a) of the Parentage Act which provide that Illinois may exercise personal jurisdiction over a nonresident if the child resides in Illinois as a result of the acts or directives of the nonresident. In this case, the child came to reside in Illinois after mother notified the child’s paternal grandparents that she was having surgery and needed care for the child during her recovery. The paternal grandmother retrieved the child and the child proceeded to stay in Illinois for 5 ½ months even though mother returned to work 3 days after the surgery and made no effort to retrieve him until she was served with father’s petition. In re the Parentage of W.J.B, 2016 IL App (2d) 140361.4. Denial of children’s name changes upheld. Wife filed an interlocutory appeal after she was enjoined from hyphenating the parties’ 3 children’s last names in the pendency of the divorce case. Wife had filed a petition under Section 21-101 of the Code of Civil Procedure claiming that she anticipated resuming the use of her maiden name and that it would facilitate her ability to register the children for school, appointments, and activities if they shared her last name post-divorce. She had also established a webpage for one of the children using the hyphenated name when the child had undergone surgery. Because mother could not prove by clear and convincing evidence that the change in name was necessary to serve the children’s best interest, as required by statute, the trial court properly denied mother’s petition and enjoined her from using the hyphenated name on any official records. Also, the Appellate Court harshly struck down mother’s argument that merely because she had 80% of the parenting time that she would be the parent responsible for enrolling the children in their extracurricular activities since the parties had joint decision making. In re the Marriage of Piergari, 2016 IL App (2d) 160594. 5. Common law claims based on years of pre-marital cohabitation denied. The parties to a divorce action had been married for less than seven months when they both cross-petitioned for a dissolution of marriage. Shortly before trial, wife petitioned the court to amend her petition to include common law rights based on 13 years of pre-marital cohabitation based on the First District Appellate Court opinion of Blumenthal v. Brewer, 2014 IL App (1st) 132250. The trial court denied her petition and the Appellate Court affirmed holding that the Illinois Supreme Court case of Hewitt v. Hewitt, 77 Ill.2d 49 (1979) did not allow such claims to proceed because it rejected equitable or quasi-contract claims between unmarried couples of the opposite sex. This decision is consistent with the Illinois Supreme Court decision of Blumenthal v. Brewer 2016 IL 118781, where it ultimately overturned the First District Appellate Court opinion. In re the Marriage of Allen, 2016 IL App (1st) 151620.

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