May 01, 2015

IICLE Family Law Flash Points - May 2015

1. Appeal dismissed for lack of jurisdiction due to failure to notarize certificate of service. The Appellate Court dismissed husband’s appeal challenging the entry of a post-judgment order removing his name as custodian of the children’s bank accounts. Husband filed his appeal pro se while serving 60 months in a federal prison for committing Medicare fraud while being employed as a physician. In the judgment for dissolution of marriage, the trial court ruled that a separate order would be entered directing BMO Harris to tender the funds held in the children’s college savings account in accordance with the terms of the judgment. Wife filed a motion asking the court to name her brother as the custodian of the children’s accounts and husband filed a motion to reconsider which the court denied. Husband then filed his pro se Notice of Appeal via mail, but it was filed stamped beyond 30 days after the entry of the order denying his Motion to Reconsider, likely due to the delay in receipt by the Clerk because of the mailing. However, because the certificate of service was not notarized as required by Supreme Court Rule 12(b)(3) evidencing when he mailed the Notice, such a defect was fatal to the timely filing of the Notice of Appeal. Therefore, the appeal was dismissed. In re the Marriage of Sheth, 2015 IL App (1st) 132611.2. Ex-fiancé allowed to seek to recover damages representing wedding expenses made by her parents. The Appellate Court reversed a trial court’s dismissal of a fiancé’s breach of promise to marry action under the Promise Act. The fiancé alleged in her complaint that she had spent in excess of $9,000 in wedding expenses when she found out nine days prior to the wedding that her fiancé was involved with another woman. The husband-to-be filed a motion to dismiss alleging that his fiancé’s alleged expenses were all drawn on her parent’s credit cards and bank accounts, and therefore her claim was barred. She argued that the funds from her parents were gifts to her that she now sought to recover. The Appellate Court held that because she made numerous purchases and nonrefundable deposits in anticipation of the wedding, and her affidavit stated that the funds she used to pay for the wedding were gifts from her parents, the fact that money was funneled through her parents’ bank accounts and credit cards did not negate her cause of action. Adkins v. Edwards, 2015 IL App (5th) 140260.3. Father’s complaint for return of a minor child to Poland under the Hague Convention was stand-alone action that survived mother’s dismissal of her Petition for Dissolution of Marriage. The Appellate Court upheld a trial court’s ruling that ordered the parties’ minor child returned to Poland under the Hague Convention after finding that Poland was the child’s habitual residence. The child was born in Poland but had traveled with her mother to the United States on several occasions with the father’s consent. The final time that mother traveled to the United States with the child, however, the father did not consent. Father then filed a Petition for Dissolution of Marriage in Poland and mother filed a competing petition in the circuit court of Cook County. Father then filed a petition to return the minor child in Cook County which the trial court ultimately granted. Thereafter, the mother filed a petition to voluntarily dismiss her Petition for Dissolution of Marriage and for three years failed to appear for specific court appearances and was finally sentenced to jail under a body attachment order. She was released after posting a partial bond and showing evidence of travel arrangements to return the child to Poland. Mother then attempted to argue that because she had dismissed her Petition for Dissolution that the court’s order to return the child was void ab initio and that father’s petition to return the minor child was essentially dismissed because it was not a stand-alone action. The Appellate Court disagreed and analogized the cause of action under the Hague Convention to a Petition for Order of Protection filed independently of a Petition for Dissolution of Marriage. The fact that the mother had filed a petition for divorce in Cook County should not determine the fate of a Hague Petition that could stand on its own. In re the Marriage of Krol, 2015 IL App (1st) 140976.4. Substantial change of circumstances was not a proper defense to a Hague Convention action. After the trial court found Poland to be a minor child’s habitual residence and ordered the child returned, mother spent three years avoiding court appearances and had three body attachments issued for her arrest before spending time in jail for her failure to return the child to Poland. Mother then filed a Motion to Stay the return of the child under the theory that a substantial change of circumstances had occurred since the court first found Poland to be the child’s habitual residence because the child had attended school in the United States for two years; had doctors, friends, and activities in the United States; and had developed relationships with friends and family in the United States. The trial court denied the Motion to Stay and the Appellate Court upheld the ruling stating that the Hague Convention has specific limited defenses and exceptions to the habitual residence finding and a substantial change of circumstances was not one of them. Furthermore, a party who spends three years avoiding and defying the court’s orders to return the child to her country of habitual residence, should not be allowed to argue that circumstances she created by defying the order constitute a basis to modify the order. In re the Marriage of Krol, 2015 IL App (1st) 140976.5. Employer not charged with $100 per day penalty for failure to withhold two support payments. The Appellate Court affirmed a trial court’s order holding that an employer rebutted the statutory presumption that it knowingly violated the Income Withholding for Support Act by failing to properly withhold child support on more than one occasion, and therefore not subject to the statutory penalty. At the hearing, the employer’s wage garnishment processor testified that she believed that she put the “bi-monthly” code in their system instead of the correct “bi-weekly” code, which was the correct payment schedule. As a result, no withholdings were held on the third paychecks in the months of December 2010 and June 2011. The garnishment processor testified that when she realized the problem she rectified the situation and sent the two additional checks to the State Disbursement Unit within two days. Because the garnishment processor testified that she had procedure in place that did not involve any discretionary decisions for processing the support payments and coupled with her other testimony, the petitioner failed show the employer knowingly violated the Withholding Act. Therefore, the employer rebutted the presumption that it knowingly failed to withhold the two missing support payments and was not subject to the $100 per day penalty. In re the Marriage of Solomon, 2015 IL App (1st) 133048.

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.