Jun 28, 2023

IICLE Family Law Flash Points - June 2023

Factual Finding That Wife Was Unable To Work Due to Time and Effort Needed To Care for Severely Disabled Child UpheldInIn re Marriage of Stine,2023 IL App (4th) 220519, the ex-husband appealed the trial court’s finding that his ex-wife was unable to work because of the intense and constant care their only daughter needed due to her severe disabilities. The evidence showed that the daughter suffered from cerebral palsy, epilepsy, seizures, paralytic scoliosis, severe anxiety, and depression, among other issues. The daughter experienced three to ten seizures per day, could not be left alone, and could not sleep alone. The evidence also showed that while she was eligible for in-home nursing care, there was a shortage of qualified care providers, and both parties agreed that she received better care at home from the ex-wife than she would at a government-subsidized home. The trial court awarded the ex-wife $776.92 per month in maintenance for seven years. Although the ex-husband argued that their daughter was eligible for in-home nursing care, which would allow the ex-wife to become employed, and as such the ex-wife’s unemployment was voluntary, the appellate court disagreed. The trial court’s finding was not against the manifest weight of the evidence, and the trial court did not abuse its discretion when evaluating whether to impute income to the ex-wife when reviewing all of the statutory maintenance factors.Absolute Litigation Privilege Barred Ex-Wife’s Claim for Intentional Infliction of Emotional DistressInGoodman v. Goodman,2023 IL App (2d) 220086, the ex-wife filed a lawsuit against her ex-husband for intentional infliction of emotional distress and other violations of the Illinois Domestic Violence Act of 1986 (IDVA), 750 ILCS 60/101,et seq.,upon discovering that he had hired private investigators to conduct surveillance on her for more than three years. The trial court granted summary judgment in favor of the ex-husband on the grounds that the actions were protected by the absolute litigation privilege. It was undisputed that the surveillance was in the course of, and in furtherance of, anticipated divorce proceedings. The evidence did not have to be used at trial in order to be pertinent to the proceedings but rather only needed to bear some relation to the litigation in order for the litigation privilege to apply. The appellate court held that the surveillance did bear some relation to the divorce proceedings and that the absolute litigation privilege barred the ex-wife’s claim for intentional infliction of emotional distress against the ex-husband.Illinois Domestic Violence Act Does Not Provide for Private Right of ActionInGoodman, supra,the ex-wife brought a private action against her ex-husband for three claims related to various forms of abuse under the Illinois Domestic Violence Act, along with a claim for intentional infliction of emotional distress. The trial court dismissed the abuse claims, finding that the IDVA did not provide a private right of action. The ex-wife appealed, and the appellate court upheld, noting the Illinois Supreme Court inChannon v. Westward Management, Inc.,2022 IL 128040, has promulgated a four-prong test to determine whether a private right of action exists under a statute: (1) the plaintiff is a member of the class for whose the benefit the Act was enacted; (2) providing a private right of action is consistent with the underlying purpose of the Act; (3) the plaintiff’s injury is one the Act was designed to prevent; and (4) providing a private right of action is necessary to provide an adequate remedy for violations of the Act. TheGoodmancourt held that while the first three prongs were applicable, the fourth factor did not support the implication of a private right of action. The IDVA provides for issuing orders of protection and other remedies, which are effective on their own and in their own right. Further, the IDVA’s plain language indicates the legislature did not intend to imply a private right of action under Act. The trial court properly dismissed the ex-wife’s claims.Illinois Supreme Court Adopts Parenting Coordinator RuleIllinois Supreme Court Rule 909, adopted May 24, 2023, provides that each judicial circuit may adopt rules for parenting coordination, including specialized parenting coordination protocols, screening, procedures, and training. The rule outlines the definition of “parenting coordination,” the basis for appointing a parenting coordinator, the coordinator’s duties, limitations, and parameters on making recommendations, among other protocols.

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