Mar 01, 2015

IICLE Family Law Flash Points - March 2015

1. Supreme Court finds issue of whether an interim parenting order was an injunction moot, and declines to rule on the issue. In July we reported on the case of In re the Marriage of Eckersall, where the First District dismissed wife’s appeal for lack of jurisdiction on the issue of whether a trial court’s order which placed restrictions on parents’ behavior when the children were in their custody was an injunction. The Supreme Court subsequently granted wife’s Petition for Leave to Appeal, but thereafter in its ruling, stated that the PLA was “improvidently granted” and that the issue was now moot. The Appellate Court filed its opinion on May 28, 2014 and the trial court entered a final judgment for dissolution of marriage on June 9, 2014. Therefore, the issue whether the interim parenting order was an injunction was now moot because the order was no longer in effect. The Court declined to apply the public interest exception and address the merits of the appeal because (1) this type of order has a limited application to a small group of people – only divorce proceedings where the parties cannot agree on terms and conditions of visitation; (2) there are no conflicting precedents which require an advisory opinion and (3) there is no likelihood of recurrence evidenced by the lack of litigation regarding this issue in the past. In re the Marriage of Eckersall, 2015 IL 117922.2. Post-judgment custody modification granted. The Appellate Court upheld a trial court’s ruling transferring custody from mother to father wherein the trial court originally denied the father’s petition for change of custody due to applying the improper legal standard, and then corrected itself upon father filing a Motion for Reconsideration. The parties’ original judgment granted (by agreement) mother sole custody of the parties’ only minor child. Three years later, father filed a Petition to Modify Custody alleging that a substantial change in circumstances had occurred and that it was in the child’s best interest to reside with him. The evidence showed that the mother had serious mental health problems; her marriage with her new husband was troubled; she exhibited several instances of neglectful parenting; and she was not forthcoming with the father about matters affecting the child. The trial court originally interpreted Section 610(b) of the IMDMA to require proof that the change of circumstances had already actually affected the child, and therefore did not modify custody. However, upon reconsideration it corrected itself and found that circumstances occurred which could lead to future harm or otherwise adversely affect the child’s welfare, and therefore transferred custody to father. In re the Marriage of Rogers, 2015 IL App (4th) 1407658.3. Removal allowed so that mother could take a more secure employment position in South Carolina. The Appellate Court reversed a trial court’s decision to deny a mother’s Petition for Removal and allowed her to permanently remove the minor child to South Carolina so she could take advantage of a more secure employment position. In their judgment for dissolution of marriage, the parties shared joint custody and mother was named the primary residential parent. Father had visitation two (2) weekends per month as well as two (2) weeks in the summer along with some other holidays. At trial, the evidence showed that the mother’s job was extremely stressful, tenuous, and causing her health problems. She was offered a job at the University of South Carolina, near where her parents and sister resided. She accepted the offer and moved there with the child. She also retained her house in Illinois pending the outcome of this action. Her salary in South Carolina was less than in Illinois, but she worked significantly less hours. The Appellate Court noted it had concerns with a 7-year old child traveling alone on an airplane frequently for visitation, but that this had already occurred a number of times without incident. The Court also noted that cutting back on the total amount of visitation for father would not significantly impact his relationship with the child given the amount of time he now saw her. In re the Marriage of Tedrick, 2015 IL App (4th) 140773.4. Wife failed to exercise due diligence under Section 2-1401 when she did not engage in formal discovery prior to signing Marital Settlement Agreement. Wife filed a post-judgment claim under section 2-1401 of the Illinois Code of Civil Procedure that she was fraudulently induced into signing the MSA because her husband had told her that his businesses were ceasing to operate and losing value. Husband brought a motion to dismiss the claim which the trial court granted and the Appellate Court upheld. Central to the issue in controversy was the fact that the MSA represented that Wife had hired experts to value husband’s business interests, the parties had both submitted supplemental asset affidavits as part and parcel of negotiating the final settlement, and the parties had undertaken extensive formal discovery, including some depositions during the matter. As one part of the agreement, wife received $475,000 from husband and husband retained 100% of his four business interests. The MSA specifically stated that husband was not required to place a value on his businesses. After the prove-up, husband received approximately $1,700,000 as a distribution from the businesses as a final payment incident to their winding down. Wife claimed that husband had breached the MSA by not disclosing the $4,000,000 held in the business’ bank account, a portion of those funds ultimately comprising husband’s last distribution. The Court disagreed and held that wife had more than ample opportunity to exercise her due diligence and she failed to do so when she accepted husband’s representations and financial disclosures in lieu of doing formal discovery. The Court further stated that while it empathized with wife’s argument that husband “lulled” her into foregoing further discovery, it could not overlook that allowing her to proceed with a 2-1401 action would give her a second opportunity to do that which she should have done prior to executing the agreement.5. Trial court did not abuse its discretion in delaying its ruling 18 months after final hearing. In a dissolution of marriage case, husband appealed the final judgment on several grounds including (1) that wife received 104% of the parties’ alleged marital estate; (2) that the court should not have utilized the parties’ 2009 stipulated income figures for setting support when the order was issued in 2012; (3) that the court abused its discretion by waiting 18 months to rule; (4) that maintenance in gross should not have been awarded; and (5) the ruling was the result of judicial bias against him. The Appellate Court upheld the trial court on all issues. In its ruling it noted that husband inaccurately recited the parties’ assets and liabilities and his rendition of the allocation was wholly incorrect. The Court also noted his repeated violations of court orders relating to temporary issues and his lack of credibility on the stand when questioned about his disposal of certain assets. His assertion that the Court should not have used the 2009 income figures, which were stipulated to by the parties, was faulty because he never requested that the trial court reject the stipulation. The Court did not condone the trial court’s delay in issuing its final order, but held that there was no merit to husband’s argument that the delay warranted reversal and new hearings. The trial court was within its discretion to award maintenance in gross, and such award was not an additional property distribution. Finally, the Court held that unfavorable comments in the judgment regarding husband’s credibility are not sufficient to overcome the presumption against judicial bias. In re the Marriage of Troske, 2015 IL App (5th) 120448.

News and Insights

Jun 11, 2024

How Prior Planning Prevents Poor Performance

Everyone loves a June wedding! When people ask a couple on the brink of their vows how ...
May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.