May 01, 2014

IICLE Family Law Flash Points - May 2014

1. Illinois Supreme Court rules 604(b) evaluator fees are not court costs under the Code of Civil Procedure. The Supreme Court has reversed the Appellate Court’s ruling in In re the Marriage of Tiballi, 2013 IL App (2d) 120523, which assessed the father with all of the custody evaluator’s fees as court costs after he chose to not pursue his post-judgment Petition for Change of Custody after reviewing the evaluator’s opinion. Recovery of costs is completely dependent on statutory authorization, and while Illinois statutes provide the plaintiff is entitled to recover costs where any action is voluntarily nonsuited or dismissed for want of prosecution, the statutes do not provide a definition of what entails “costs.” Applying the rule set out in Vicencio v. Lincoln-Way Builders, Inc. 204 Ill.2d 295 (2003), the Court held that the 604(b) fees did not qualify as “court costs” under the Code of Civil Procedure which are typically fees assessed by the court, such as filing fees, courthouse fees, and reporter fees. The Court also noted that Section 604(b) of the IMDMA specifically provides that the court shall “allocate” the costs and fees of the evaluator while court costs are not subject to allocation among the parties. Therefore, the Court remanded the case back to the trial court to allocate the evaluator’s fees in accordance with the terms of Section 604(b). In re the Marriage of Tiballi, 2014 IL 116319.2. Order granting exclusive possession of marital residence to one spouse immediately appealable. Husband filed an interlocutory appeal pursuant to Supreme Court Rule (SCR) 307 after the trial court granted wife exclusive possession of the marital residence. The Appellate Court held that it had jurisdiction to hear the matter under SCR 307(a)(1) which provides that appeals may be taken from an order of the trial court granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. Because Section 701 of the IMDMA provides the court may enter orders of injunction, mandatory or restraining, granting exclusive possession to either spouse, an interlocutory appeal under Rule 307(a)(1) is appropriate. In re Marriage of Engst, 2140 IL App (4th) 131078.3. Petition for exclusive possession is treated as a motion. The wife filed a Petition For Exclusive Possession. In it the only allegation was a conclusory statement that the mental wellbeing of the children would be jeopardized by continued occupancy of the marital residence by both spouses and that it was for her and the children’s mental wellbeing that she be awarded exclusive possession. The husband presented a Motion To Dismiss stating that wife’s Petition contained only conclusory allegations rather than specific allegations of fact enabling him to prepare a defense and did not state the factual basis for relief. The Fourth District Appellate Court affirmed the Trial Court’s denial of the Motion To Dismiss holding that a Motion To Dismiss addresses only defects in “pleadings” and that the wife’s “Petition” seeking temporary relief in the pending dissolution proceeding was a “motion” rather than a pleading. In re Marriage of Engst, 2140 Il.App (4th) 131078.4. Order for exclusive possession and temporary custody upheld. The Appellate Court upheld a trial court’s order granting wife exclusive possession of the marital residence and temporary custody of two minor children. The Court relied heavily on the trial court’s finding that wife’s testimony was credible that the children were being exposed to a highly negative situation. Although the trial court did not make specific findings with respect to Section 701 of the IMDMA, there was sufficient evidence in the record supporting a finding that the mental health of wife and/or the children was in jeopardy by both spouses’ continued shared occupancy of the marital home. For example, wife testified to numerous instances when husband had been physically aggressive towards her by standing in the doorway to block her access to an area of the home; and moving towards her and then blaming her for running into him. She also testified that he swore at her, called her names in front of the children, and threatened to knock her head off. Husband did not deny the events occurred but characterized them differently. There was also ample evidence that some of the confrontations had occurred in the presence of the children. The Court noted in its opinion that a situation need not rise to the level of physical violence before exclusive possession could be granted. In re Marriage of Engst, 2140 IL App (4th) 131078.5. Order terminating parents’ obligation to fund minor child’s college education upheld. In a post-judgment action that has been heavily litigated on appeal twice, mother sought (on remand from the Illinois Supreme Court) an order directing father to contribute to their son’s college education pursuant to the parties’ judgment for dissolution of marriage. Since graduating from high school and taking college classes at a community college, the child had been incarcerated for two years. The Supreme Court had held that there was no authority in Illinois that recognized incarceration as a self-emancipating event such as marriage or military service. In re Marriage of Baumgartner, 393 Ill.App.3d 297 (2009). However, on remand, the Court directed the trial court to consider the extent to which the child’s incarceration constitutes changed circumstances warranting a modification of the judgment. After hearing testimony from both parties and the child, the trial court terminated both parties’ obligations to fund the education. The court found that the child, who was now 23 and had fathered a child and was engaged, was emancipated and capable of supporting himself. Also, the evidence showed he did not have the desire and ability to further his education. The Appellate Court affirmed the trial court and noted it properly used its discretion in its ruling. In re the Marriage of Baumgartner, 2014 IL App (1st) 120552.6. Father’s discontinuance of maintaining a pre-paid college plan for son was not criminally contemptuous based on the language of the judgment. The parties’ judgment for dissolution of marriage provided that father was to “continue to maintain the Florida pre-paid tuition and dorm college account” with an approximate value of $4,000. Mother alleged that father violated the judgment by transferring the plan to his new wife, who liquidated the account while mother’s motion for reconsideration of the trial court’s order terminating father’s obligation to contribute to their son’s college expenses was pending. Mother asked that father be held in indirect criminal contempt of court for transferring the funds. The trial court dismissed her petition and the Appellate Court affirmed, holding that the transfer of the funds itself did not violate the requirement that the father “maintain the account” for the son under the standard for criminal contempt. The Court noted that in order for contempt to be proper the order must be specific and clear as to be susceptible to only one interpretation and it must be unambiguous. It also stated that mother failed to seek contempt against father’s new wife (who she alleged liquidated the account) or allege that father was responsible for directing the liquidation. The Court did address the fact that father transferred the funds while mother’s motion for reconsideration was pending and ruled there was no evidence that he willfully violated the stay order. Father testified at the contempt hearing that he had consulted with an accountant and attorney who indicated to him that it was their opinion that he no longer had an obligation to maintain the account. In re the Marriage of Baumgartner, 2014 IL App (1st) 120552.7. The Hague Convention does not allow for the tolling of its time limits. A mother and father were living in the United Kingdom and in November 2008 the mother left with their three year old child and moved to her sister’s residence in New York. The mother did not inform the father where she and the child were living. The father was unsuccessful in locating the child and obtaining any remedies in the United Kingdom. Thereafter, learning of the child’s whereabouts in November of 2010, he filed in the United States District Court for the Southern District of New York an action for the return of the child pursuant to the Hague Convention. The mother raised the defense to being required to return the child that the child was “settled” in their new home and it would not be in the child’s best interest to be returned to the United Kingdom for custody hearings. The defense of a child being “settled” in a new home to avoid a return to the place where the child had been a habitual resident is only available under the Hague Convention if the action for return was not brought within 12 months from the abduction. The father argued although his application was filed more than 12 months after the abduction, the period for filing is tolled by the mother’s conduct of concealing her and the child’s location. The United States Supreme Court in a decision authored by Justice Clarence Thomas, held that equitable tolling applied to statutes of limitations under domestic law. An international treaty like the Hague Convention did not provide an exception to the 12 month time period so there would be none. Lozano v. Alvarez, 134 S. Ct. 1224, 188 L.Ed.2d 200 (2014).

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