Nov 28, 2022

IICLE Family Law Flash Points - November 2022

Trial Court’s Award of Joint Decision-Making and Equal Parenting Time Reversed and RemandedInSadler v. Pulliam,2022 IL App (5th) 220213, the father filed a petition to establish parentage and for parental responsibility. After an extensive trial, the court ordered equal parenting time and joint decision-making. The evidence included testimony from both parties concerning an incident in which the child broke her leg during the father’s parenting time and the mother’s alleged refusal to continue to allow him to have parenting time after that incident. There was evidence regarding the parties’ acrimonious relationship, including the father’s actions to block the mother on Facebook when she was pregnant and his refusal to do a DNA test. The mother also testified as to a number of times that the child was returned to her without her diaper being changed. In its ruling, the trial court did not expressly name the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101,et seq.,or discuss any of the best-interests factors set forth therein in support of its order. The mother appealed, and the appellate court reversed and remanded for further proceedings. In its opinion, the court distinguishedIn re Marriage of Whitehead,2018 IL App (5th) 170380, 97 N.E.3d 566, 420 Ill.Dec. 684, relied on by the father. The trial court inWhiteheaddid not address each factor but stated that in rendering its decision it considered all of the evidence, which included the guardian ad litem’s report that had reviewed each factor extensively. Because the trial court in the case at bar did not reference any of the factors and there was no reliable GAL report that discussed the factors, the trial court did not comply with the statute when rendering its decision.Trial Court’s Order for Relocation to Alabama AffirmedInScott v. Haritos,2022 IL App (1st) 220074, a parentage action in which there was no allocation judgment of parental responsibilities or child support order put into place after the birth of the child and the parties never lived together, the mother moved to Alabama. It was disputed whether the father had agreed for her and the child to move. The father filed a petition for allocation of parental responsibilities and parenting time and to establish child support after the mother had moved. The mother then filed a petition for relocation. The trial court ordered the mother to return to Illinois pending trial, which she did. In the meantime, the father moved from Chicago to Champaign. The trial court heard extensive testimony about a job waiting for the mother in Alabama and the fact that she had applied to over 200 jobs in the Chicagoland area and had not secured employment and that she had the ability to live in a much safer neighborhood in Alabama than in Chicago, among other facts. The GAL issued a report that weighed in favor of relocation. The GAL noted that the father did not desire to be the parent with the majority of parenting time and that there was concern that the objection to the relocation was more about controlling the mother than it was about parenting time with the minor child. The trial court made extensive findings in accordance with §609.2(g) of the IMDMA, 750 ILCS 5/609.2(g), and concluded that relocation of the child to Alabama was in the child’s best interests. The appellate court affirmed and in so doing distinguished several cases in which the appellate court overturned a trial court’s ruling allowing relocation and noted the trial court and the GAL’s determination that the mother’s motive in seeking relocation was to provide an enhanced quality of life for the child while the father’s motivation in opposing was more about controlling the mother rather than having parenting time with the child since he had moved 122 miles from Chicago, while the mother and child had moved back to Chicago at his insistence pending trial.Motion To Enforce Money Judgment in Judgment for Dissolution of Marriage Time-BarredThe ex-wife inIn re Marriage of Poulsom,2022 IL App (1st) 220100, filed a motion to enforce judgment for dissolution of marriage in 2021 with respect to a judgment that was entered in 1995. She alleged she was entitled to $50,946 to be paid within 30 days from the entry of judgment, which she never received. The request for the $50,946 was time-barred. Section 12-108 of the Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,provides that “no judgment shall be enforced after the expiration of 7 years from the time the same is rendered.” 2022 IL App (1st) 220100 at ¶19. A judgment may be revived by filing a petition to revive a judgment provided that it is filed within 20 years after its entry pursuant to §13-218 of the Code of Civil Procedure, 735 ILCS 5/13-218. Because this was a money judgment in a dissolution case, the above provisions applied and the ex-wife was barred from seeking enforcement of the judgment 26 years after entry of judgment.Petition To Enforce Sale of Marital Residence DeniedInPoulsom,the ex-wife filed a motion to enforce judgment for dissolution of marriage 26 years after its entry in which she alleged her ex-husband failed to list for sale the marital residence, for which she was to receive 60 percent of the sales proceeds. The ex-husband argued that the ex-wife had in fact signed over title to him in 1999 and he had refinanced the mortgage and paid her $115,800, which was 60 percent of its value. Due to the 26-year delay in the ex-wife seeking enforcement, most bank records were not available, including copies of the check written to the ex-wife for her 60 percent buyout. The ex-husband did call the notary who had notarized the deed, and the notary corroborated the ex-husband’s testimony that the ex-wife had in fact signed over title. The trial court’s finding that the ex-husband satisfied the judgment by paying the ex-wife $115,800 was not against the manifest weight of the evidence. The ex-wife failed to make an offer of proof to dispute the fact that she had signed a quitclaim deed, although she claimed she had a handwriting expert who would refute that she had actually signed the deed. Without an offer of proof, no appealable issue remained.Turnover Orders To Satisfy Attorneys’ Fees Consent Judgment AffirmedInIn re Marriage of Davis,2022 IL App (1st) 210623, a former client appealed the order of the trial court that granted two motions for turnover filed by the former law firm of the client in order to satisfy a $325,000 consent judgment. The first motion sought turnover of real estate, which was awarded to the client under the judgment but still owned by the ex-husband, and the second motion sought turnover of the client’s chose in action against the ex-husband related to a $500,000 lump-sum payment owed to the client under the judgment. The appellate court affirmed both turnover orders. Section 2-1402(c)(3) of the Code of Civil Procedure, 735 ILCS 5/2-1402(c)(3), provides that a judgment creditor may step into the shoes of a judgment debtor and exercise the right to compel transfer of the property, which the client was entitled to under the judgment. Essentially, §2-1402(c)(3) provides that if a third party is holding assets that belong to the judgment debtor, the court may compel the application of the discovered assets or income to the satisfaction of the judgment as long as the judgment debtor would have the right to recover such assets from the third party. With respect to the chose in action, which is a claim that could be litigated, since the former client had a right to receive the $500,000 lump-sum payment from the ex-husband under the marital settlement agreement, which was a contractual right that could be assigned, the trial court did not err in ordering the turnover of the chose in action in favor of the law firm.

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