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Family Law FLASHPOINTS January 2024

Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
312-641-5560 | E-mail Donald Schiller | 312-741-1092 | E-mail Michelle Lawless

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, 750 ILCS 5/101, et seq., the trial court may grant temporary relief, including ordering the purchase or sale of assets. In In re Marriage of Gabrys, 2023 IL App (1st) 221763, the appellate court found that the relief contemplated under §501 is intended to be temporary pending a final dissolution, but 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.

Appellate Court Had Jurisdiction To Hear Interlocutory Appeal Due To Wife Perfecting Notice of Appeal Within 30 Days of Trial Court’s Order Modifying Original Injunctive Order

At issue on appeal in Gabrys, supra, was whether the trial court abused its discretion in ordering the sale of the former marital residence during the pendency of the case when neither party occupied the residence. The wife had left the United States for Poland, did not show up for her deposition, and did not appear pursuant to Supreme Court Rule 237(b) for a subsequent hearing. The trial court found no justification for not appearing and granted the husband’s motion to sell the residence. The wife filed a motion to reconsider, which was denied. In the order denying the motion to reconsider, the court ordered that the sale of the residence was to proceed immediately. The appellate court noted that generally an order to sell a residence is not a separate claim but rather is part and parcel of the divorce action, and even the inclusion of Rule 304(a) language would not vest jurisdiction for the appeal to move forward. Rule 307(a)(1), however, allows an appeal from an interlocutory injunctive order, but the wife did not timely comply with the 30-day rule to file her notice of appeal in order for jurisdiction to vest. However, because the trial court in the second order not only denied the motion to reconsider but also ordered that the sale of the home should immediately proceed, that order modified the first injunctive order that ordered the sale of the residence, and because the notice of appeal was filed within 30 days from the entry of that particular order, the appellate court deemed it had jurisdiction to hear the appeal.

Restriction of Parenting Time with Three Minor Children Upheld and Sanctions Granted by Appellate Court for Frivolous Appeal

In In re Marriage of Lindell, 2023 IL App (2d) 220055, the mother appealed the final parental allocation judgment that restricted her parenting time with three minor children by requiring supervised visitation. Both the guardian ad litem and the custody evaluator supported that conclusion through extensive testimony. The evidence showed the mother had long-standing issues of anxiety, an eating disorder, postpartum depression, and possible ADHD, which she attempted to manage with alcohol, opiates, sleeping medications, and other medications at various times. The trial court found that the evidence showed that she had misused or abused such substances and granted the father sole decision-making and parenting time. The court further found that the mother had engaged in conduct that rose to the level of serious endangerment and that it was in the children’s best interests that her parenting time be supervised. The mother filed a motion to reconsider and her notice of appeal. She contended on appeal that there was insufficient reliable evidence to support a serious endangerment finding. The mother provided no transcript of the trial or any of the exhibits the trial court referenced in its opinion, delayed several times in providing a complete record when directed to do so by the appellate court, and, even after the court reinstated her appeal, did not supplement the record with a transcript she had previously alleged was unavailable. The court affirmed the allocation judgment. The court also granted the father’s motion for sanctions, finding that the mother unduly delayed the appeal by ignoring the appellate court’s request for an explanation of the missing transcript, which she said was “essential” to her appeal, and concluded the only point in bringing the appeal was to cause unnecessary delay. 2023 IL App (2d) 220055 at ¶26.The court further stated the appeal would not have been brought in good faith by a reasonable attorney and that sanctions must be levied against the wife’s attorney. It therefore ordered the father’s counsel to file a statement of reasonable expenses and attorneys’ fees and the wife’s attorney to file a response, both of which it would consider in entering an order determining the amount of sanctions.

Order Requiring Father To Use Soberlink To Secure Parenting Time Affirmed

In In re Marriage of Hipes, 2023 IL App (1st) 230953, the husband appealed the trial court’s order requiring him to test regularly with Soberlink in order to continue to have parenting time with the parties’ 12-year-old daughter. The record was replete with ample evidence of the father’s alcohol abuse, including multiple DUIs, his voluntary surrender of his driver’s license because he removed the ignition interlock device on his car, his multiple stints in inpatient rehab and detox programs, physical altercations with the wife, and multiple reconciliations and separations from the wife that coincided with periods of relapse. During the pendency of the proceedings, the husband tested with the BACtrack device, which the court found was unreliable because it did not provide real-time results or the videos of the husband taking the tests. Therefore, the trial court ordered Level 2 Soberlink testing with specific times the husband must test, as well as alcohol counseling, both of which the husband appealed. The appellate court affirmed, stating that the trial court’s finding of serious endangerment, which was necessary to order the restrictions on parenting time such as Soberlink, was not against the manifest weight of the evidence given the breadth of evidence in the record. The husband’s claim that he had been sober since 2020 was not supported by the evidence, and it was clear that his drinking caused mental and emotional harm to the parties’ daughter. The order specifically requiring him to use Soberlink and attend counseling was not an abuse of discretion as the restrictions were tailored to address the issues in the case and fell squarely withing the authorized restrictions of IMDMA §§603.10(a)(5) and 603.10(a)(8).

For more information about family law, see FAMILY LAW: PRELIMINARY CONSIDERATIONS IN DISSOLUTION ACTIONS (IICLE®, 2023). 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.

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