By Donald C. Schiller and Michelle A. Lawless
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361

1. Motion for summary judgment granted in opposition to Section 2-1401 petition. The parties settled a two year divorce action after protracted litigation which involved formal discovery, forty third-party subpoenas, and a neutral business valuation. Two years later, wife brought a Section 2-1401 petition claiming husband conspired with his business partner to hide his actual income during the divorce. One of her central arguments was that husband and his partner had engaged in a “true-up” mechanism which essentially provided husband with the income he would have been entitled to while the divorce case was pending in the two years following the entry of judgment. Husband filed a motion for summary judgment which the trial court granted and wife appealed. Wife essentially re-re-argued what she presented to the trial court in her pre-trial memorandum. Wife had knowledge of facts supporting the claims she made in her Section 2-1401 petition and did not act diligently in pursuing those claims prior to judgment. Section 2-1401 is not intended to give the litigant a new opportunity to do that which should have been done in an earlier proceeding or to relieve the litigant of the consequences of mistake or negligence. Wife had not been prevented from continuing discovery and going to trial given that she suspected that husband was making more money than he had disclosed and instead chose to settle her case. She also testified at the prove-up she was satisfied that both parties gave complete disclosures of income and assets and that she had instructed her counsel to not continue with discovery. The settlement agreement also contained language that both parties understood they were waiving further discovery and had a right to proceed to trial in lieu of entering into the settlement agreement. In re Marriage of Onishi-Chong and Chong, 2020 IL App (2d) 180824.

2. Pre-trial memorandum properly considered by trial court in a Section 2-1401 action. Wife filed a Section 2-1401 action alleging fraud on the part of husband in an effort to conceal his income during a divorce case. Husband filed a motion for summary judgment which the trial court granted. In granting husband’s motion for summary judgment, the trial court considered the wife’s previously submitted pre-trial memorandum to the court which argued essentially the same points that she had raised in her Section 2-1401 petition. On appeal, wife argued the trial court’s reliance upon her pre-trial memorandum was in violation of Rule of Evidence 408(a). The Appellate Court disagreed. Rule of Evidence 408(a) states that such “settlement” offers are inadmissible only when they are offered “to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.” Because the memorandum was not offered to prove liability for or invalidity of a claim and did not involve a prior inconsistent statement, the court’s consideration of it was permissible. ¶33. The Court considered the memorandum to show the wife had knowledge of facts supporting her claims and failed to diligently pursue those claims prior to judgment. In re Marriage of Onishi-Chong and Chong, 2020 IL App (2d) 180824.

3. Trial court’s finding that Oklahoma was the proper state to hear parenting issues trial under UCCJEA reversed for procedural error. The Third District reversed the trial court’s ruling that despite Illinois having jurisdiction to conduct a parenting issues trial under the UCCJEA, that Oklahoma was the proper state to conduct the trial. The children had been residing in Oklahoma only four months after husband filed his petition in Illinois, but the Illinois judge properly declined to exercise jurisdiction because it was an inconvenient forum. The children were attending school in Oklahoma and the majority of evidence concerning their well-being was in Oklahoma. The Appellate Court noted the trial court had acted properly with respect to its determinations, but because the court failed to make a record of the conference it held with the Oklahoma judge it reversed and remanded to the trial court to make a record of the communication to provide information to the parties regarding the substance of the call. The Court stated that once the procedural error had been corrected and a proper hearing held, the trial court should again determine whether Illinois was an inconvenient forum. In re Marriage of Rickett, 2020 IL App (3rd) 180657.

4. Trial court did not abuse discretion when striking a portion of a custody judgment which required the parties to seek a written report from a parenting coach before filing a custody or visitation motion. In a highly contentious and heavily litigated custody case which included multiple appeals, the parties’ amended custody judgment had a provision which appointed an expert as a behavioral parenting coach and provided that the parties must obtain a written report from such expert prior to filing a motion regarding custody or visitation. After dealing with several procedural issues and multiple motions, the trial court ultimately granted mother’s motion which sought to vacate such section on the grounds that the court exceeded its authority by delegating to a third party the power to intervene in custody matters. Father appealed and the Appellate Court affirmed. The requirement that the parties first seek a written report from the expert prior to filing a motion regarding custody or visitation goes against the legislative intent of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which is for parties who are part of a custody judgment to be able to seek modifications of their own accord. The Court also noted that the parties had a 12- page custody judgment and that the section in question was one sentence out of the entire judgment. Therefore, the trial court had authority to strike one sentence in the judgment as a minor modification without a showing of a substantial change of circumstances if the change is in the best interest of the children pursuant to Section 610.5(e) of the IMDMA. In re Marriage of Wendy S. and George D. 2020 IL app (1st) 191661.