Jul 01, 2013

IICLE Family Law Flash Points - July 2013

1. Supreme Court grants PLA regarding issue of invalid Notice to Withhold. In April we reported on the case of Schultz v. Performance Lighting, Inc. 2013 IL App (2d) 120405. After serving a Notice to Withhold child support on an obligor’s employer and not receiving any support payments, a support recipient sought a penalty against the employer for $100 per day that it failed to comply with the Notice pursuant to 750 ILCS 28/35. The Appellate Court held that the omission of the obligor’s social security number on the notice rendered the notice invalid. The Illinois Supreme Court has granted the recipient’s Petition for Leave to Appeal. The Appellate Court decision be found here.2. Equitable tolling doctrine now applies to the Parentage Act. In a case of first impression, the Illinois Appellate Court has applied the equitable tolling doctrine to the statute of limitations contained in Section 8(a)(1) of the Parentage Act which requires that a parentage action be barred if brought later that 2 years after the child reaches majority. In this case, the Plaintiff was an adult child who filed a petition to establish paternity against her alleged putative father more than two years after she reached majority. The Appellate record contained uncontroverted affidavits from both her and her mother detailing the circumstances of her birth, including her mother’s rape resulting in her impregnation and her father’s threatening conduct towards her mother if she brought any action against him. The Appellate Court relied on the legislative history of Section 8(a)(1) and the legislators’ emphasis on a child’s right to the physical, mental, emotional, and monetary support of his or her parent, and therefore held that courts may apply the equitable tolling doctrine to allow a child to file a parentage action past the statute of limitations if the elements of the doctrine are met. Ralda-Sanden v. Sanden, 2013 IL App (1st) 121117.3. Plenary Order of Protection Reversed. During the course of dissolution of marriage proceedings, wife filed a petition for plenary order of protection allegeding that husband committed emotional abuse and harassment towards herself, their five minor children, and a childcare worker employed in their home because he viewed child pornography on an Ipad that was known to be used by the children. The trial court granted the order of protection and the Appellate Court reversed. The decision turned on the definition of harassment under the Domestic Violence Act which is knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Because there was no evidence that husband viewed the pornography in her (or the children’s) presence or left the sites visible, the Court reasoned that he did not act knowingly because there was no evidence that his conduct was certain to cause wife or the children emotional distress. In re the Marriage of Young, 2013 IL App (2nd) 121196.4. Wife successfully rebuts presumption of marital property with respect to marital residence. Prior to the marriage, wife owned a piece of real estate which she had purchased with her own funds and which was held in her own name. Husband later moved into the residence with wife and they were married approximately three years later. During the marriage husband withdrew over $40,000 from his personal bank account and paid off the mortgage on the property. In 2008, in connection with executing paperwork to reduce their property taxes on the property, wife signed a quit claim deed putting husband on title. She testified at trial that husband did not explain the documents she was signing and that she had no intention of transferring title. The trial court found that wife had no donative intent when executing the quit claim deed. The Appellate Court agreed and held that wife had successfully demonstrated that while she executed the deed, she did not understand the documents she had signed and that she had no intent to gift the property to the marital estate. The Appellate Court also held that husband should be reimbursed the funds that he withdrew from his bank account to pay down the mortgage. In re the Marriage of McBride, 2013 IL App (1st) 112255.5. 604(b) fees are court costs and must be paid by a party who voluntarily nonsuits a case. In a post-judgment custody modification proceeding, the trial court appointed a 604(b) evaluator to advise the court in connection with the dispute. The order appointing the 604(b) evenly divided the fees of the evaluator. After the evaluator submitted his written report advising that it was his opinion that the custody arrangement should remain as it was, wife moved to dismiss husband’s petition after she learned that he no longer planned to prosecute it. The court dismissed the case. The court also granted wife leave to file a petition for costs in which wife sought to recover the money she had paid the evaluator. The Appellate Court held that a 604(b) fees are court costs rather than litigation expenses because the 604(b) professional is retained by the court to assist in deciding the controversy before it and whether one is appointed is the prerogative of the court, not the parties. Therefore, husband was ordered to pay the totality of the evaluator’s fees. In re the Marriage of Tiballi, 2013 IL App (2d) 120523.

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