Nov 01, 2013

IICLE Family Law Flash Points - November 2013

1. Supreme Court rules advance payment retainers subject to disgorgement in matrimonial cases. The Illinois Supreme Court has held in In re the Marriage of Earlywine that advance payment retainers in dissolution of marriage cases are subject to disgorgement pursuant to section 501(c-1)(3) of the IMDMA. The Court stated that to hold otherwise would defeat the express purpose of the Act and render the “leveling of the playing field” provisions powerless. In Earlywine, the trial court had found that neither party had the ability to pay his or her attorneys’ fees. Husband’s parents had paid his attorneys’ fees and husband his counsel had entered into an agreement that the retainer would be treated as an advance payment retainer, thereby immediately making the money the property of his attorney. The Court noted that it was clear from the attorney-client agreement that the advance payment retainer in this case was set up specifically to circumvent the “leveling of the playing field” statute and opined that to allow attorneys’ fees to be shielded in this manner would effectively strip the statute of its power. In re the Marriage of Earlywine, 2013 IL 114779.2. Incomplete record on appeal fatal to husband’s appeal of $69,000 interim fee award. Husband took a contempt finding to appeal the trial court’s award of $69,000 in interim fees in favor of wife’s counsel. He argued that (1) the court abused its discretion because wife did not demonstrate an inability to pay and husband’s ability to pay; and (2) that the court lacked jurisdiction to award $69,000 in fees when the petition only requested $51,040. The Court held that the record on appeal was inadequate to support husband’s arguments because it did not contain the parties’ financial disclosure statements although both counsel and the court referred to and relied upon the statements at the hearing. Therefore, the Court did not have evidence to decide whether the court had abused its discretion and had to presume that the trial court had sufficient basis for its decision. With respect to the amount ordered, the Court held the trial court had jurisdiction to grant $69,000 in fees rather than the exact amount requested in the underlying petition because wife’s counsel twice requested $70,000 in interim fees orally at the hearing without any objection by counsel. Furthermore, wife had paid substantially less to her counsel than husband had, and by awarding the $69,000, the parties were brought into parity with each other. In re the Marriage of Patel, 2013 IL App (1st) 122882.3. Trial court properly denied motion to reconsider motion to vacate judgment for dissolution of marriage. The trial court did not abuse its discretion in denying husband’s motion to reconsider the entry of judgment on the basis that he lacked a “total understanding” of the settlement agreement and that he was coerced into signing it by his attorney. In this case, the parties entered into an oral settlement on the first day of trial which was reduced to a marital settlement agreement and signed by both parties on the same day. A month after the oral prove-up, husband filed a motion to vacate which was denied. Judgment was subsequently entered and husband then filed a motion to reconsider which was denied. The Appellate Court held that the record showed no evidence of coercion or unconscionability, and that husband most likely suffered a “change of heart” after the prove-up. Husband also argued on appeal that the court lacked subject matter jurisdiction because wife provided no proof that either party was in Illinois resident, but the Appellate Court disagreed, ruling that because he failed to file a response to wife’s petition for dissolution of marriage denying the residency, that he admitted the allegation. In re the Marriage of Epting. 2012 IL App (1st) 113727.4. Grandparents lacked standing to sue for custody because mother had physical possession of child when the petition was filed. The trial court correctly ruled that grandparents did not have standing to pursue a petition for custody of their grandson because the child’s mother had physical possession of him at the time the petition was filed. Although the grandparents had physical possession and de facto custody of the child from August 2008 through October 2010, the child’s mother assumed physical possession of the child at that point. The mother had continual physical possession from October 31, 2010 until the grandparents filed for custody, 96 days later, and during this time she established a residence for the child and made all parental decisions for him, including when to allow his grandparents to see him. The grandparents had acquiesced to this arrangement and returned the child to the mother’s home after they visited with their grandson and abided by the mother’s decisions concerning when they could see the child. Dumiak v. Kinzer-Somerville, 2013 IL App (2nd) 130336.5. Appeal of ruling on motion to reconsider premature when a petition for rule to show cause remained pending. Husband filed a motion to reduce support and wife filed a petition for rule to show cause in a post-judgment action. The trial court denied husband’s motion and partially granted wife’s petition causing husband to file a motion to reconsider. Meanwhile, wife filed a second petition for rule which updated the amounts owed. The trial court then granted the motion to reconsider and partially reduced the amount husband owed in support and child-related expenses. Husband filed his notice of appeal regarding the motion to reconsider while the second petition for rule remained pending. Relying on In re the Marriage of Gutman, 232 Ill.2d 145 (2008), the Appellate Court held that because the second petition for rule is a claim within the meaning of Rule 304(a), an appeal filed before the resolution of the second petition for rule, without a Rule 304(a) finding by the trial court, is premature. Therefore, the Court lacked jurisdiction to hear the appeal. In re the Marriage of Dianovsky, 2013 IL App (1st) 121223.

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