Marital Property

In re Marriage of Samardzija , 365 Ill.App.3d 702, 850 N.E.2d 880 (Ill. App. 3 Dist.) June 9, 2006

Presumption that home was marital property was not overcome, despite evidence that lot for home was purchased before marriage, husband’s non-marital funds were contributed to the home’s construction and the home was titled in husband’s name only.  In so ruling, the court considered that the home was built by the parties during the marriage and marital funds were used to partially satisfy the debt.

Also, the court rejected wife’s argument that husband’s profit bonuses that he loaned back to his family-owned business were a marital asset.  Stock in the business was undisputedly a gift to husband from his family; thus, income or bonuses flowing from the gift was non-marital property.

Maintenance

In re Marriage of Samardzija , 365 Ill.App.3d 702, 850 N.E.2d 880 (Ill. App. 3 Dist.) June 9, 2006

Court upheld trial court’s refusal to apply maintenance award retroactively to time of filing of petition for dissolution and to award permanent maintenance.  The court listed factors to be considered in setting maintenance, including: 1) income and property of each party; 2) parties’ present and future earning capacity; 3) time needed to acquire education, training and employment; 4) a party’s ability to support him or herself; 5) duration of marriage; 6) standard of living established during marriage; and 7) age and physical conditions of the parties.

Also, the court noted that maintenance is rehabilitative in nature and should be made permanent only where a spouse is unemployable or employable only at a substantially lower income than would support the previous standard of living. However, spouse receiving maintenance has good faith obligation to become self-sufficient, with the maintenance to be used to transition into self-sufficiency.

In re Marriage of Thornton , --- N.E.2d ----, 2006 WL 2337088 (Ill. App. 3 Dist.) August 9, 2006

Ex-wife’s conjugal relationship with ex-husband’s brother warranted termination of maintenance.   In determining whether such a relationship existed pursuant to the Illinois Marriage and Dissolution of Marriage Act (“Marriage Act”), 750 ILCS 5/510(c) (West 2002), the court considered the following factors: 1) length of relationship; 2) amount of time couple spends together, including vacations and holidays; 3) nature of activities engaged in; and 4) interrelation of personal affairs.  In this matter, ex-wife allowed ex-husband’s brother to live with her because he was homeless.  The court construed this living arrangement to involve financial support, which has great significance in determining a conjugal relationship. 

Custody/Removal

In re Marriage of Samardzija , 365 Ill.App.3d 702, 850 N.E.2d 880 (Ill. App. 3 Dist.) June 9, 2006

Custodial parent was not required to obtain non-custodial parent’s consent or court order before moving children, provided that the move was within Illinois.  The court reasoned that while parties can impose geographic limitations by agreement, such limitations are to be imposed only if there is a specific need to do so.  Inconvenience of the non-custodial parent is not a compelling reason to limit custodial parent’s freedom of movement within the state.

In re Marriage of Hansel , 304 Ill. Dec. 298, 852 N.E.2d 548 (Ill. App. 3 Dist.) July 7, 2006

Mother petitioned the court for leave to remove child from Illinois, over father’s objection.  Parents had joint custody of child.  Mother sought to leave Illinois because her fiancé worked in North Carolina, and such a move would provide more financial support for the child and would enable mother to no longer work and therefore spend more time with child.

The trial court denied mother’s petition, upon consideration of the best interests of the child by taking into account five factors delineated in In re Marriage of Eckert, 119 Ill.2d 316, 518 N.E.2d 1041 (1988): 1) whether move would enhance child’s and custodial parent’s quality of life; 2) whether move is to defeat or frustrate non-custodial parent’s visitation rights; 3) non-custodial parent’s motives in resisting move; 4) effect of move on non-custodial parent’s visitation rights; and 5) whether a realistic and reasonable visitation schedule can be arranged.  The appellate court found the trial court’s determination was not against the manifest weight of the evidence.

Custody/Factors to Consider

In re Marriage of Gambla , --- N.E.2d ----, 2006 WL 2171468 (Ill. App. 2 Dist.) July 31, 2006

Trial court awarded sole custody of biracial child to African-American mother.   In so doing, the trial court considered the eight statutory factors outlined in the Marriage Act, 750 ILCS 5/602 (West 2004).  The trial court also determined that the child’s biracial status was a relevant factor. 

The trial court acknowledged that the custody decision was very difficult, given that both parents appeared to be able to care for child properly.   However, the court awarded custody to mother, noting that while the decision was not based solely upon race, mother would be better equipped to provide for child’s emotional needs in light of society’s sometimes hostile attitude toward people of different races. 

Father appealed, arguing that the trial court improperly considered the child’s biracial status in awarding custody.   In rejecting father’s argument, the appellate court observed that the trial court considered race only after lengthy consideration of all of the statutory factors.  Race may be considered as a factor in determining custody, so long as it does not outweigh all the other relevant factors.    

Custody/Constitutional Challenges

In re Custody of T.W. , 365 Ill.App.3d 1075, 851 N.E.2d 881 (Ill. App. 5 Dist.) June 19, 2006

Child’s mother voluntarily surrendered custody of child to maternal grandparents.  Mother was never married to child’s father.  Child had been living with grandparents for more than two years when grandparents sought to obtain legal custody of child.  Father counter-petitioned for custody. Mother consented to custody award to grandparents.  Trial court awarded custody to grandparents.  The court acknowledged the superior-rights doctrine, under which it is presumed that it is in the child’s best interest to be raised by a natural parent.  However, the doctrine is not absolute but rather is one factor in determining the best interest of the child pursuant to the Marriage Act, 750  ILCS 5/601 et seq. (West 2004).

Father appealed, alleging his due process rights had been violated by the award of custody to grandparents.  The appellate court affirmed the trial court’s decision.  The Marriage Act affords parents due process in that standing requirements must be met by nonparents seeking custody of a child.  In this matter, grandparents had standing, given that they had custody of the child.  Thus, father’s due process rights were not violated.  Further, the trial court did not ignore the superior-rights doctrine but rather found grandparents had overcome the presumption that custody to father would be in the child’s best interests.

Custody/Visitation

Felzak v. Hruby , --- N.E.2d ----, 2006 WL 2171398 (Ill. App. 2 Dist.) July 28, 2006

Father and natural mother were married and had two sons and one daughter; natural mother died shortly after birth of daughter.   Father remarried, and new wife adopted children.  On April 6, 1994, maternal grandmother filed a petition for grandparent visitation with the children, pursuant to section 607(b) of the Marriage Act, 750 ILCS 5/607(b) (West 1992).  The parties entered into an agreed order on December 16, 1994, which permitted grandmother visitation with the children in exchange for grandmother withdrawing claims for grandparent visitation.  Grandmother filed another petition on April 10, 1995, alleging father and adoptive mother violated December 16, 1994 order. The parties then entered into a second agreed order on June 15, 1995, providing visitation with daughter if grandmother would withdraw her April 10, 1995 petition.     

In 2005, Grandmother filed a petition to enforce the June 15, 1995 order.  Father and adoptive mother filed motion to dismiss, alleging that because 607(b) of the Marriage Act was held to be unconstitutional, the court had no subject matter jurisdiction and therefore had no authority to enter the June 15, 1995 agreed order.

The appellate court found that the trial court had subject matter jurisdiction to hear the case, as common law grandparent visitation still exists in limited circumstances, despite the Illinois Supreme Court decision Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.1 (2002).  The Wickham court held grandparent visitation pursuant to section 607(b) of the Marriage Act to be unconstitutional.

Further, the June 15, 1995 order is enforceable because proper consideration was given for the agreement.  The June 15, 1995 order was made after grandmother agreed to forgo her claims pursuant to the earlier December 16, 1994 order, not pursuant to an agreement to relinquish her rights under section 607(b).  Thus, as to the June 15, 1995 order, consideration consisted of grandmother’s conceding her legal claim to enforce her contract rights from December 1994, not a claim under section 607(b).  Furthermore, even if the December 16, 1994 agreement ultimately had no consideration because 607(b) was later found to be unconstitutional, grandmother had a right to litigate whether the December 16, 1994 agreement was enforceable.  Thus, there was proper consideration for the June 15, 1995 order.

Also, provision in June 15, 1995 order prohibiting parties from discussing case with daughter interfered with parent’s Fourteenth Amendment rights to parental liberty.

Judgments/Child Support

People ex rel. Green v. Young , --- N.E.2d ----, 2006 WL 2564041 (Ill. App. 4 Dist.) August 23, 2006

Mother sought child support from father for child born out of wedlock.   Over the years, mother was repeatedly in court to obtain support from father, who was continually unemployed or underemployed.  At one point, the trial court granted father an abatement of child support due to his unemployment.  Father was obligated to return to court, however, to report any change in his employment.  After two status dates, father failed to appear.  After the case had been dormant for more than 15 years and the child reached the age of majority, mother filed a complaint for modification of child support, determination of past-due child support and the imposition of sanctions against father.  Father filed motion to dismiss the complaint, which the trial court granted.

On appeal, the court found that the earlier court order authorizing abatement of child support was not a permanent cessation of child support, and father should not benefit from his repeated violations of court orders.   The onus was on father to report his change in employment status; it was not mother’s responsibility to repeatedly bring father into court.  Thus, a retroactive child support order was appropriate under the extraordinary facts of the case.

Further, mother did not lose her right to past-due support as a result of the child reaching the age of majority.   Past-due child support payments are considered vested rights, and a child’s custodian does not lose his or her right to collect such arrearages, even if the child has reached majority. 

Illinois Department of Healthcare & Family Servs. ex rel. Stover   v. Warner , --- N.E.2d ----, 2006 WL 2260826 (Ill. App. 4 Dist.) August 2, 2006

Father was no longer required to pay child support after his parental rights were terminated.  Despite state’s argument that natural parents lose their legal rights and are relinquished of their responsibility only upon both termination of parental rights and the child’s potential adoption by a specific party, the court found that section 17 of the Adoption Act, 750 ILCS 50/17 (West 2004), applies whenever a child is available for adoption.

Guardianship/General Considerations

In re Sharena H. , 304 Ill.Dec. 224, 852 N.E.2d 474 (Ill. App. 1 Dist.) June 30, 2006

State’s delay in filing neglect petition was not due to lack of diligence but rather state’s attempt to give mother opportunity to preserve her family.  Child was born exposed to illicit drugs.  Rather than take custody of child immediately, Illinois Department of Children and Family Services (“DCFS”) attempted to keep the family intact and offered family preservation services to mother.  After mother failed to comply with such services, DCFS filed petition for guardianship of child.  Trial court found child to be neglected because she was born exposed to drugs and due to an injurious environment. Appellate court affirmed trial court’s ruling, noting that exposure to controlled substances at birth is neglect, regardless of when petition is filed.

Guardianship/Due Process

In re Mark W. , --- N.E.2d ----, 2006WL 1667495 (Ill. App. 1 Dist.) June 16, 2006

Child was born to mentally-handicapped mother.  Before child’s birth, grandmother became plenary guardian of the person for mother.  Child was placed in protective custody several months after birth due to allegations that mother was abusing child.  State filed petition for guardianship of child and to terminate parental rights.

During termination proceedings, trial court removed mother’s attorney due to conflict but permitted attorney to act as mother’s guardian ad litem (GAL).  GAL attorney advised the trial court of his view that mother’s parental rights should be terminated.  Mother’s parental rights were terminated, and grandmother filed motion to reconsider and subsequent appeal.

Appellate court found that mother’s due process rights had been violated by the appointment of a GAL to inform the court about mother’s best interests.  As grandmother had been made plenary guardian of the person for mother pursuant to the Probate Act, 755 ILCS 5/1 et seq. (West 1998), it was her role to make all decisions and exercise all legal rights on behalf of mother.  The Juvenile Court Act (705 ILCS 405/1 et seq. (West 1998)) focuses on protecting the best interests of the children involved, not the parents.  The Juvenile Court Act does not provide for a GAL appointment for a mentally-disabled adult parent, and one is not required nor should one be appointed where a guardian has already been appointed under the Probate Act.

Further, the trial court’s appointment of mother’s attorney to purportedly act as her GAL despite his belief that mother’s parental rights should have been terminated denied mother due process of law.  The conflict between GAL attorney, mother and grandmother prohibited attorney from using confidential client information to mother’s disadvantage.

In re K.S. , 365 Ill.App.3d 566, 850 N.E.2d 335 (Ill. App. 2 Dist.) June 6, 2006

State sought custody of child, alleging, in part, that child was abused in that father sexually abused child’s sibling.  State received temporary guardianship of child.  Criminal charges stemming from father’s alleged abuse of sibling had been dismissed prior to child’s removal from home.  Nevertheless, the court ordered father to undergo sex offender evaluation.  Father refused. Court made child a ward of the court and gave legal guardianship to the state.  Father appealed.

Appellate court found that father should not have been required to complete a sex offender evaluation and follow any recommendations, as there was no basis in law or fact for the trial court to order such evaluation. Trial court did not hear any direct evidence of any sexual offense committed by father.  Instead, it relied upon a DCFS report supported by “credible evidence.”  Court’s reliance upon indicated reports based upon credible evidence, beyond the completion of the administrative appeals process, was constitutionally inappropriate.  Thus, father’s due process rights to confront witnesses and to require proof were violated.

Abused and Neglected Child Reporting Act

Varela v. St. Elizabeth’s Hospital of Chicago , --- N.E.2d ----, 2006 WL 2255751 (Ill. App. 1 Dist.) August 7, 2006

Mother brought child to hospital, at which time doctors did not discern possible indications that child was being abused.  Child was later abused by father, who also confessed to abusing child before hospital visit.  Child and mother brought suit against hospital for violation of Abused and Neglected Child Reporting Act (“Reporting Act”), 325 ILCS 5/4 et seq. (West 2002).  Appellate court found that the Reporting Act does not expressly provide for a private right of action.  Further, there is no duty under Illinois law or the Reporting Act to rescue others from injury by third parties.

New Legislation

Attorney’s Fees pursuant to the Illinois Marriage and Dissolution of Marriage Act, Public Act 094-1016 (effective July 7, 2006), 750 ILCS 5/508

This Act amends the provisions under 750 ILCS 5/508(e) as follows: