Oct 01, 2014

IICLE Family Law Flash Points - October 2014

1. Preponderance of evidence standard is applicable in removal cases. In a parentage matter, the trial court was reversed for applying the “clear and convincing evidence” standard when evaluating whether removal of the minor child from Illinois to California was in the child’s best interest. The mother had filed a petition for removal due to a change in employment but the trial court ruled that she had not sustained her burden of proving by clear and convincing evidence that the proposed removal was in the child’s best interest. The Appellate Court noted that while Section 609 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) places the burden of proof on the party seeking removal, it is silent as to the standard of proof. Although father argued that the clear and convincing standard imposed by Section 610 of the IMDMA for custody modifications should apply to this case, the Court held that a removal petition, while related to custody, is not a petition to modify custody. Therefore, the preponderance of the evidence standard is applicable to removal cases – not clear and convincing evidence. In re Parentage of Rogan M., 2014 IL App (1st) 141214.2. “Prevailing Party” fee provision not enforceable under Illinois law as applied to issues related to children. A Nevada Marital Settlement Agreement (MSA) contained the following fee provision: “In any action arising hereunder, or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney fees and costs.” The parties relocated from Nevada to Illinois and the ex-wife enrolled the judgment and moved to modify the child support and visitation provisions. The parties agreed in mediation to a modified visitation schedule and the trial court granted ex-wife’s petition to modify child support. The trial court also later granted a motion to modify child support filed by the ex-husband. The court denied both party’s requests for attorneys’ fees. Ex-wife appealed under the theory that she was the “prevailing party” and the MSA obligated her ex-husband pay her fees. The Appellate Court relied on the reasoning in In re the Marriage of Best, 387 Ill.App.3d 948 (2009), and held that as a matter of Illinois public policy, a MSA cannot preordain attorney fees to a prevailing party in child-related matters. Therefore, the provision was unenforceable. As to the other pleadings that did not directly involve a child-related issue, the Appellate Court affirmed the trial court’s ruling stating that besides one motion on which wife prevailed, all other issues were disposed of by agreed order or were grants and denials on some issues for each party. Therefore, the trial court could have reasonably concluded that neither party “prevailed.” In re the Marriage of Linta, 2014 IL App (2d) 130862.3. Order requiring the parties to agree upon a time and place for supervised visitation was an abuse of discretion. In a parentage action where the parties had a severely acrimonious history and mother had a consistent and recurring history of alcohol and drug abuse, mother appealed an order granting her visitation for a minimum of two nonconsecutive Saturdays a month at a time and place agreed by the parties. Mother argued on appeal that the language “at a time and place agreed by the parties” effectively gave father complete control over all of her visitation because he could simply not agree and the visitation would not occur. The Appellate Court agreed and noted that the record reflected that there was little likelihood of any agreement on the time and place of the visitation and that the order was not sufficient to ensure that mother would receive visitation when there was a disagreement. The Court vacated that portion of the order and remanded to the trial court to set a specific schedule unless the parties agreed otherwise. In re Parentage of K.E.B., 2014 IL App (2d) 131332.4. Attorney review clause in mediated agreement precluded agreement from being declared enforceable. The Appellate Court affirmed a trial court’s ruling that a separation and divorce agreement (2008 agreement) was binding on the parties but a second agreement (2010 agreement), negotiated in mediation was not binding since it contained an attorney review clause. The 2008 agreement was drafted by husband and divided the parties’ various assets. Both parties signed the 2008 agreement prior to husband filing a Petition for Dissolution of Marriage. However, once husband filed his petition acrimonious litigation ensued between the parties regarding issues not covered in the 2008 agreement. The parties then attended mediation in an attempt to resolve all remaining issues. The parties subsequently agreed in mediation with respect to the issues and the agreement (2010 agreement) stated the terms of those agreements as well as the following: The above parties, having submitted this matter to mediation, do now agree that their dispute has been compromised and settled on the following terms…Review and consultation with respective attorneys. Wife ultimately refused to accept the 2010 agreement after consulting with her counsel. The Appellate Court held the 2008 agreement was valid and binding on the parties finding that the terms were not unconscionable and there was no mutual mistake in fact. The Court also held that the 2010 agreement was not binding on the parties because the attorney review clause gave the parties a chance to have their counsel review the agreement prior to final acceptance. The Court also noted the local circuit court mediation rule requires mediated agreements to be signed by both counsel in order to be binding. In re the Marriage of Akbani, 2014 IL App (5th) 130266.

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