Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
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Top Ten Family Law FLASHPOINTS™ of 2024
1. Illinois Supreme Court Holds That Orders Entered on Motions for Substitution of Judge Are Appealable Only After Entry of Final Judgment
In In re Marriage of Arjmand, 2024 IL 129155, 238 N.E.3d 1067, 475 Ill.Dec. 366, a divorce matter that had been litigated for ten years and had been on appeal multiple times, the ex-husband asked the appellate court to review the denial of a motion for substitution of judge as part of a Supreme Court Rule 304(a) appeal concerning the dismissal of claims against third-party defendants to the underlying dissolution of marriage action. The appellate court had reversed the trial court’s decision to dismiss the ex-husband’s petitions against the third-party defendants but held that no Supreme Court Rule allowed for an interlocutory appeal from the denial of a motion for substitution of judge and that therefore such a decision could be reviewed only on appeal from a final judgment. The Supreme Court granted leave to appeal the issue of whether the appellate court may review an order regarding a motion for substitution of judge prior to entry of a final judgment. It is well settled that preliminary orders in a pending case are not appealable and are reviewable only upon entry of a final order. The exception is under Rule 304(a) if the order being appealed disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate party thereof. In this matter, the trial court entered Rule 304(a) language finding the order dismissing the complaints against the third-party defendants was a final, appealable order. The ex-husband argued that the review of certain orders leading up to the dismissal order, such as the denial of the motion for substitution, could be required on appeal in order to address the merits of the appeal. However, the Supreme Court held that rulings on motions for substitution of judge do not fall into the category of “attendant” prior orders intertwined with the merits of the interlocutory order, as they are independent of the substantive merits of the order at issue in a Rule 304(a) appeal. Therefore, such a ruling is not subject to Rule 304(a) review and may not be appealed until entry of final judgment.
2. Trial Court Abused Discretion in Ordering Sale of Marital Residence During Pendency of Divorce Proceedings
Under §501 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., the trial court may grant temporary relief, including ordering the purchase or sale of assets. The appellate court found in In re Marriage of Gabrys, 2023 IL App (1st) 221763, 238 N.E.3d 1196, 475 Ill.Dec. 495, that the relief contemplated under §501 is intended to be temporary pending a final dissolution, but that the sale of the marital residence in this instance was not temporary. The court acknowledged that §501 authorizes the sale of an asset prior to dissolution, but that is appropriate only in extraordinary circumstances when such sale is required to otherwise maintain the status quo prior to final dissolution, such as to avoid foreclosure of a residence. The court held that the immediate sale of the residence was wholly unnecessary as there was no exigency that necessitated the sale. Further, a court should not use §501 to unnecessarily adjudicate the property rights and claims of the parties prior to final judgment.
3. Trial Court’s Finding of Cohabitation on Continuing, Conjugal Basis Reversed
An ex-husband filed a petition to terminate maintenance in the trial court alleging his ex-wife was cohabitating on a continuing, conjugal basis in In re Marriage of Saunders, 2024 IL App (3d) 230151, 230 N.E.3d 246, 472 Ill.Dec. 150. At the time of the trial, the ex-wife was no longer in a relationship with the boyfriend, and he had married another woman. The evidence showed that the ex-wife had been in an exclusive relationship with her boyfriend from December 2019 to March 2020 and again from October 2020 to January 2022. They celebrated some holidays together, she had met some, but not all, of his relatives, they traveled at times together, and he spent the night at her house two or three times per week. They did not have keys to each other’s home, did not use each other’s credit cards, and did not commingle finances. In finding that the ex-wife had engaged in a de factomarriage, the trial court relied on the six factors in In re Marriage of Herrin, 262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994). The appellate court reversed, holding that the totality of the circumstances showed that the couple did not interrelate their personal affairs and did not enmesh their lives or share any financial commitments. Thus, there was no intended permanence in the relationship.
4. Finding of Cohabitation Denied Upon Motion for Directed Finding
An ex-husband filed a petition to terminate maintenance on the grounds that his ex-wife was cohabitating on a continuing, conjugal relationship in In re Marriage of Larsen, 2023 IL App (1st) 230212, 240 N.E.3d 638, 476 Ill.Dec. 439. At the close of the ex-husband’s case-in-chief, the ex-wife moved for a directed finding on the grounds that the ex-husband had failed to meet his burden of proof. The trial court granted the motion for directed finding, and the ex-husband appealed. The appellate court affirmed, noting that while the Herrin, supra, factors are the most relied on list of factors under which to analyze a cohabitation issue, that the Illinois Supreme Court has not adopted the Herrin factors as the required list of factors to consider. Rather, the law has shifted to focus on whether the relationship is “husband-and-wife-like” in nature based on the totality of the circumstances. 2023 IL App (1st) 230212 at ¶117. The evidence showed that the couple in question was in an intimate dating relationship, but did not share any financial accounts or real estate and did not comingle their funds, with the exception of sharing cash for dinners and travel expenses and other nominal expenses. The ex-wife’s boyfriend maintained his own residence and was responsible for his own household expenses.
5. In Camera Interview of Minor Child Regarding Sexual Abuse Violations Violated Father’s Due-Process Rights
In In re Marriage of Doe, 2024 IL App (1st) 230935, a mother and father divorced in 2020, and the order of protection was sought in 2021 on the grounds that father had sexually abused his daughter over a number of years, beginning in the fourth grade. The trial court was concerned with the daughter reliving the trauma through testimony (she was 18 years old at the time the hearing took place) and invoked the in camera provision of the IMDMA, which allows a judge to question a child in chambers regarding the allocation of parental responsibility. The father’s attorney did not have an opportunity to cross-examine the child, and the trial court granted the plenary order of protection. The father appealed, and the appellate court reversed. The in camerainterview violated the father’s due-process rights because the only evidence of the sexual abuse was the daughter’s testimony and he was prevented from challenging her credibility. The trial court could have permitted the child to testify via Zoom so she would not have to be in the same room with her father during her testimony or to testify in the guardian ad litem’s office with the GAL present for her support.
6. Woman in Long-Term Same-Sex Relationship Had Standing To Pursue Petition To Adjudicate Parentage of Two Minor Children
The petitioner in In re Parentage of D.F., 2024 IL App (1st) 231784, a woman who was in a long-term relationship with another woman who gave birth to two children via artificial semination during their relationship, filed a petition to adjudicate parentage and for parenting time after the birth mother no longer permitted her to see the children. The petitioner had not formally adopted the children during the relationship, and therefore the birth mother filed a motion to dismiss the petition for lack of standing. The trial court granted the motion to dismiss, and the appellate court reversed. Section 602 of the Illinois Parentage Act of 2015, 750 ILCS 46/602, specifically addresses standing and includes “a woman presumed or alleging herself to be the parent of the child.” 2024 IL App (1st) 231784 at ¶25. It also includes a person who has provided financial support to a child and an intended parent as someone who entered into a reproductive technology arrangement. The court only opined on the issue of standing and did not address the merits.
7. Trial Court’s Finding That Ex-Wife Was Not Cohabitating on Resident, Continuing, Conjugal Basis Reversed
The Third District reversed a trial court’s ruling and held that the ex-wife was not residing with her boyfriend on a resident, continuing, conjugal basis in In re Marriage of Miller, 2024 IL App (3d) 230098, 245 N.E.3d 65, 478 Ill.Dec. 181. After extensive testimony over a four-day hearing, in which the ex-wife’s boyfriend had testified that at the time of the hearing he and the ex-wife were no longer dating and he was in a relationship with another woman, the trial court determined that the ex-wife was not cohabiting after evaluating each of the Herrin, supra, factors. The couple had been dating for three and a half years, spent large amounts of time together, celebrated holidays together, vacationed together, and spent a significant amount of time with each other’s families, notably, all of their respective children. There was no evidence that the couple had any intermingled financial dealings. But the appellate court gave great weight to their involvement in each other’s families and the fact that they attended each other’s children’s sporting events and talent shows and were present on special occasions. Their children stayed overnight at each other’s homes, and they traveled together for out-of-town sporting events. The court stated, “This willingness to involve both families suggests mutual commitment if not permanence.” 2024 IL App (3d) 230098 at ¶65. Based on the totality of the circumstances, the court held that while the relationship existed, it was a de factomarriage.
8. Adult Disabled Child Support Awarded After Child Reached Age of Majority
In a case of first impression, the First District held in In re Marriage of Moriarty, 2024 IL App (1st) 230270, that a 21-year-old adult who had graduated from high school, but was still living with her mother due to an autism diagnosis, was eligible for adult disabled support. Pursuant to §513.5 of the IMDMA, 750 ILCS 5/513.5, an individual with a disability means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such an impairment. Section 513.5(a) limits awards to situations as equity may require for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. However, arrival at majority and emancipation are two distinct life events and have two distinct meanings. The record indicated that the child was not otherwise emancipated because, despite being of majority age and a high school graduate with a part-time job, she was not mentally able to take care of herself and had not left the protection and influence of her mother’s home. She had not demonstrated the ability to manage her own affairs or to live partially independently or wholly independently.
9. Trial Court’s Refusal To Conduct in CameraInterview of Minor Child Affirmed
In a postjudgment matter, the ex-husband appealed the trial court’s ruling that granted the ex-wife’s petition to modify the parenting plan for their minor child, who was a ten-year-old boy. In re Marriage of Jessica F., 2024 IL App (4th) 231264, 241 N.E.3d 1068, 476 Ill.Dec. 950. The ex-husband had filed a motion for in camerainterview of the minor child in order for the court to ascertain his wishes as to the allocation of parental responsibilities. The court reserved ruling on the motion until all of the evidence had come in and did not conduct the interview. It issued its order modifying the parenting plan, which included modifying the parenting schedule and allowing for a change of school due to the ex-wife’s move to a different town and school district. The appellate court affirmed the trial court’s decision to not conduct an in camerainterview. There is no absolute right to present a child’s testimony during a custody hearing; rather, the decision is left to the court’s sound discretion. Further, it was not an abuse of discretion for the court to reserve ruling on the motion until all of the evidence came in. The appellate court noted that the ex-husband’s motives for requesting the interview may have been to put the child in the position of being a factual informant rather than simply relaying his wishes, and if the trial court detected this, it rightly exercised its discretion to decline the interview.
10. Trial Court Reversed for Failing To Rule on Issue of Temporary Support Request as Part of Petition for Order of Protection
In an independent action for an order of protection, the trial court issued an emergency order of protection and subsequently a plenary order of protection but denied the petitioner’s request for temporary support from the respondent with whom she shared a child. Martinez v. Leon, 2024 IL App (1st) 231058. The trial court denied the request twice, the first time because it believed the respondent did not have adequate notice of the proposed support order and the second time because it believed the Cook County Domestic Relations Division was the appropriate division to deal with the support issue. The petitioner appealed, and the appellate court reversed. The Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq., lists several remedies that may be included in an order of protection, and one of those remedies is temporary child support.
For more information about family law, see ADOPTION LAW (IICLE®, 2024). 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.