Donald C. Schiller | Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
Michelle A. Lawless | Law Office of Michelle A. Lawless LLC, Chicago
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Court Erred When Considering New Evidence on Motion To Reconsider Regarding Relocation
In In re Marriage of Prusak, 2020 IL App (3d) 190688, the trial court denied the mother’s request to relocate her three minor children from Naperville, Illinois, to Evansville, Indiana. The mother subsequently filed a motion to reconsider, which the trial court granted. The husband appealed, and the appellate court reversed, resulting in the mother not being permitted to relocate the children. During argument on the motion to reconsider, the mother’s counsel attempted to argue facts not originally admitted into evidence, including (1) that direct flights between Chicago and Evansville did exist and (2) that since the underlying hearing the father had failed to hire anyone to watch the children after school. The trial court rejected the evidence regarding the direct flights because that could have been offered at the original hearing. However, it accepted some of the mother’s arguments regarding the father’s inability and difficulty securing supervision for the children, of which there was no evidence. The court noted that the father had admitted in his pleadings that he had not yet hired a sitter and that his own father and the eldest child (who was now emancipated) had watched the two minor children when he worked late. While there is no issue with accepting these admissions into evidence, the court abused its discretion at the motion to reconsider hearing by accepting anything beyond what was admitted in the pleadings.
Trial Court Erred When It Reversed Itself Upon Reconsideration of Issue of Whether Reasonable Parenting Schedule Could Be Fashioned in Relocation Case
In Prusak, the trial court ruled that a reasonable parenting schedule could not be created between the minor children and their father who lived in Naperville if the children were relocated to Evansville and therefore denied the mother’s petition for relocation. The court was reluctant to enter the parenting schedule suggested by the guardian ad litem because the children would have been burdened with significant travel time (approximately 10 hours in a car) and the schedule would have interfered with the opportunity for the children to meaningfully participate in extracurricular activities with their friends over the summer, among several other reasons. Further, the mother had presented no evidence regarding her search for affordable housing in Illinois and her employment was not dependent upon her living in Evansville. Although the trial court reversed itself upon reconsideration and ruled that a reasonable parenting schedule could indeed be fashioned, the appellate court disagreed and reversed. The trial court had originally issued a detailed nine-page written decision in which it stated that it found that the mother had failed to present sufficient evidence that the relocation was in the children’s best interests. Such a decision was supported by the evidence. Further, the mother decided to leave her children and move to Evansville prior to the ruling on her petition for relocation. The appellate court stated: “A parent should not be allowed to benefit from such a preemptive decision when they fail to establish that relocating the children to that area is in that parent’s and the children’s best interests.” 2020 IL App (3d) 190688 at ¶39.
Standard of Review on Motion To Reconsider Relocation Order Clarified
In Prusak, the mother filed a petition to relocate three minor children to Indiana, which was denied. However, the circuit court granted the mother’s motion of reconsideration, which effectively allowed her to remove the children. The father appealed the order on the motion to reconsider, and the appellate court emphasized that the issues on appeal were limited to whether the trial court erred when it granted the motion to reconsider — not the original relocation issues. The father appealed on two bases: (1) the court misapplied the law when it ruled that it could not fashion a reasonable parenting schedule; and (2) the court considered evidence of post-hearing facts concerning the father’s difficulty in securing supervision for the children while he worked. The appellate court applied the de novo standard of review when looking at whether the trial court erred when it ruled that it could not fashion a reasonable parenting schedule if the children moved to Indiana. Further, it applied the abuse of discretion standard when evaluating the court’s reliance on facts that occurred after the hearing regarding the father’s alleged difficulty securing childcare for the children while he worked. A special concurrence was filed arguing that the manifest weight of the evidence standard should have been applied, which the majority addressed in a footnote, stating that had the appeal been focused on the original relocation order, the manifest weight of the evidence standard would have been the appropriate standard of review.
Attorneys’ Fees Awarded in Connection with Appeals Deemed Interim Fees, Thus Appellate Court Did Not Yet Have Jurisdiction To Adjudicate
In In re Marriage of Crecos, 2020 IL App (1st) 182211, a procedurally complex case that has been up on appeal twice, the trial court ordered the ex-husband to pay the ex-wife $32,952.50 for fees incurred on one appeal and $89,465.50 for fees incurred in a second appeal. Both parties agreed and argued that the appellate court had jurisdiction to hear the issue because the trial court had entered the fee awards pursuant to §503(j) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., and that it was a final fee award. However, the appellate court noted that neither the original petition for fees nor the trial court’s order cited to §503(j). The court evaluated §§508(a), 503(j), and 501(c-1) and ultimately relied on In re Marriage of Derning, 117 Ill.App.3d 620, 453 N.E.2d 90, 72 Ill.Dec. 785 (2d Dist. 1983), when reaching the conclusion that the order for attorneys’ fees was inextricably tied to the remaining personal property issues that remained partially unresolved. Despite the fact that the order included Supreme Court Rule 304(a) language that it was a final, appealable order, the trial court’s order could not confer the appellate court with jurisdiction. Therefore, the appeal was dismissed for lack of jurisdiction.
For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS (IICLE®, 2018). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.