Jun 22, 2021

IICLE Family Law Flash Points - June 2021

Motion To Dismiss Petition for Parental Responsibilities and Parenting Time UpheldInIn re Parentage of D.S.,2021 IL App (1st) 192257, the First District upheld the trial court’s dismissal of a father’s petition for parental responsibilities and parenting time due to the child being conceived via nonconsensual sexual penetration under §622 of the Illinois Parentage Act of 2015, 750 ILCS 46/101,et seq.Due to the fact that the mother was not yet 17 years old at the time the child was conceived, she could not have given consent. Several allegations by both parties existed in support of their respective allegations that the other was not “fit” to be a parent; police reports had been filed; and the Illinois Department of Children and Family Services had conducted an investigation. However, the issue on appeal was solely whether the trial court properly granted the motion to dismiss under §622. The father did not dispute the trial court’s finding that there was clear and convincing evidence of an act of nonconsensual sexual penetration due to the age of the mother but argued that, under §622, the mother had given her consent for parenting time and parental responsibilities due to her actions of allowing him such after the birth of the child. The father argued the statute should be construed as requiring a judicial determination of whether the mother has previously consented at any point to the father’s parenting of the child, but the appellate court disagreed. Section 622 of the Parentage Act gives the mother of a child conceived as a result of conduct defined in §622(a)(1) or §622(a)(2) complete autonomy to decide the issue of parenting rights. Relying on the dissent inDeaver v. Jordan,2020 IL App (5th) 200084-U, ¶34 (Barberis, J., dissenting), the court held that because the mother filed an affirmative defense to the father’s petition, this was enough to establish that she did not give her consent to the father’s parenting time or parental responsibilities request. The court did engage in a lengthy discussion and addressed the potential dangers of allowing a mother to give and then withdraw consent.Trial Court Reversed for Ordering 50-50 Parenting ScheduleIn a postjudgment parenting time modification proceeding filed by the father, the trial court modified the parenting schedule to provide that the parents would have equal parenting time under a 2-2-3 arrangement.In re Marriage of Virgin,2021 IL App (3d) 190650. Prior to the modification petition, the mother had nine overnights and the father had five. The trial court did not adopt the guardian ad litem’s recommendation, which would have given the father nine nights and the mother five. The father appealed. In its ruling, the Third District focused on the caselaw, which traditionally viewed a 50-50 parenting schedule with caution in cases in which the parents had too much animosity to cooperate. The evidence in this matter indicated that the parties had communication skills prone to high conflict and that there was questionable judgment at the mother’s home regarding third parties present, the child’s bedtime routine and sleeping arrangements, and several other issues. The appellate court noted: “The record is replete with evidence that the parties have too much animosity to sufficiently cooperate.” 2021 IL App (3d) 190650 at ¶49. The evidence also showed there had been six orders of protection, multiple DCFS investigations, criminal proceedings, and mutual restraining orders. The court reversed and remanded with direction to provide the father with the majority of parenting time. Justice Lytton wrote a lengthy dissenting opinion on the matter. 2021 IL App (3d) 190650 at ¶65 (Lytton, J., concurring in part & dissenting in part).Trial Court’s Reduction of Maintenance from $20,000 per Month to Zero Based on Husband’s Retirement Reversed and RemandedInIn re Marriage of Folley,2021 IL App (3d) 180427, the husband, who had been employed as a vice president of Caterpillar, filed a petition to terminate his maintenance obligation of $20,000 per month after he was advised by his employer that he would no longer be employed by the company. Instead, he chose to retire. The parties had been married for 28 years and had nine children at the time of the divorce, only one of whom was a minor at the time the trial court ruled on the maintenance modification issue. At the time of the parties’ divorce, they equally divided a $5 million estate and the husband earned over $100,000 gross per month. He was ordered to pay to the wife $20,000 per month in permanent maintenance as well as 25 percent of his short-term incentive plan. At the time the parties completed their financial affidavits in the postjudgment proceeding, the husband had approximately $12 million in assets and his anticipated retirement income was $23,500 per month. The wife held approximately $4.25 million in assets, and her income was approximately $20,000 per month, not including any maintenance. Both parties had extravagant living expenses, which was representative of the marital lifestyle. The trial court found that the husband’s loss of employment was not in bad faith and constituted a substantial change in circumstances. It reduced his maintenance obligation to zero, required him to submit periodic job search entries to the wife, and provided that the issue of maintenance would be reviewed if and when the husband secured subsequent employment. The wife appealed, and the appellate court reversed and remanded. The record was clear that the husband had the ability to pay maintenance when his assets were worth $12 million, and the zero-payment order was against the manifest weight of the evidence. His expenses were not such that he did not have the ability to continue to pay maintenance, and his lifestyle and investment decisions clearly supported the fact that he had the ability to pay.Trial Court Abused Its Discretion in Reviewing Jurisdiction Indefinitely in Maintenance Modification ProceedingInIn reMarriage of Folley, supra,the trial court ordered that the wife could file a petition to review maintenance if and when the husband secured subsequent employment. However, the trial court placed no time limitation for review, essentially reserving its jurisdiction over the issue indefinitely. Such order was an abuse of discretion as the trial court should have set a reasonable time for the review.

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