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

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092;

1. Denial of a motion to dismiss a lawsuit filed by testator’s children to enforce a judgment for divorce entered 36 years ago affirmed. Testator’s children filed a petition against the representatives of the testator’s estate to enforce the terms of a 1985 judgment for dissolution of marriage, specifically, the provision which provided that both parties agreed to execute wills leaving not less than 50% of their respective estates to children or grandchildren of their marriage.  The parties to the divorce judgment had six children and at issue when the testator died was the distribution of an estate valued in the hundreds of millions of dollars. The testator, who resided in Florida at the time of his death, left his estate to a pass-through trust of which his second wife was the primary beneficiary and his children the remainder beneficiaries.  The testator’s representatives filed a motion to dismiss for lack of personal and subject matter jurisdiction, which the trial court denied. The representatives sought an interlocutory appeal which was granted, and the Appellate Court affirmed the trial court’s ruling.  The trial court’s jurisdiction is predicated upon a judgment in which it explicitly retained jurisdiction to enforce.  Further, the relief sought by the children in this proceeding was not similar to the pending probate action in Florida.  While the representatives argued that the trial court had no personal jurisdiction over them, they were not being sued as individuals, but in their capacity as representatives of the testator’s estate, and an action against a decedent which arise in his lifetime lies against the administrator in his representative capacity.  The representatives also argued that the trial court lacked quasi in rem jurisdiction over the testator’s estate, but because the court retained personal jurisdiction over the testator to enforce its judgment, quasi in rem jurisdiction is not required for the case to proceed.  In re Marriage of Krilich, 2023 IL App (1st) 221198.
In re Marriage of Krilich

2. 59-year old adult putative son’s action for paternity allowed to proceed under 2015 Parentage Act.  The adult putative son of blues musician Buddy Guy filed a petition to establish parentage.  At the time he filed his petition he was 59 years old, and Buddy Guy was 83 years old.  His petition sought no monetary relief and Guy did not challenge the DNA test results which established biological paternity.  The trial court found that the application of the 2015 Parentage Act, specifically Section 607(a), which permits a petition to establish parentage may be commenced at any time, even after the child becomes an adult, but only if the child initiates the proceeding, to be unconstitutional as applied to the facts.  The trial court dismissed the petition to establish parentage and the Appellate Court reversed.  The Appellate Court held that there was no dispute that the 2015 Parentage Act (Section 607) authorized the putative son’s lawsuit.  On appeal, Buddy Guy argued that the putative son had a right to sue under the 1984 Parentage Act, and such right was extinguished by that Act’s statute of limitations.  And as a result, Guy had acquired a vested right in the expiration of the putative son’s claim which was a constitutionally cognizable due process right. Under the Parentage Act of 1984 Act, a child shall be barred from seeking parentage if the lawsuit was brought later than 2 years after a child reached the age of majority.  Guy argued for an equitable extension of the 1984’s Act statute of limitations, meaning that the putative son would have had two years after the effective date of that statute to establish parentage, and thereafter be prohibited from bringing suit.  However, Guy offered no cases or other authority to support such an equitable extension argument and the Court held that such an equitable extension was not appropriate.  Because the putative son had no defined right to seek an adjudication of parentage under the 1984 Parentage Act, Guy had no defined due process interest in not being sued under such Act.  Because Guy did not have a defined due process interest, there was no need for consideration of the raised constitutional issues and the Court declined to analyze or rule on the constitutionality of the statute.  In re Miller, 2023 IL App (1st) 210774.
In re Parentage of Daryl Miller

3. Trial court’s finding of residence owned by the husband prior to the marriage and transferred to a land trust with wife as the beneficiary as marital property affirmed.Husband appealed the trial court’s ruling that home he owned prior to the marriage, and which would later become the marital residence, was marital property.  During the marriage the parties retained the services of an estate planning attorney who created a land trustin which husband transferred ownership of the home to, and of which wife was named the beneficiary of as well as reciprocal trusts for the parties.  The estate planning attorney testified at trial regarding the creation of the trusts.  He also testified that husband contacted him when the marriage was deteriorating and attempted to remove wife as the beneficiary of the land trust.  The trial court found that husband’s meetings with the estate planning attorney to potentially remove wife as the land trust’s beneficiary evidenced that he understood he had gifted the home to wife.  The finding was further corroborated by the estate planning attorney’s testimony.  Husband presented no evidence refuting the estate planning attorney’s testimony or establishing that he was forced to sign the trust documents.  Therefore, the trial court’s ruling was not against the manifest weight of the evidence.  In re Marriage of Klose, 2023 IL App (1st) 192253.
In re Marriage of Klose

4. Trial court’s characterization of three investment accounts created during the marriage as marital property affirmed. Husband claimed that three investment account created during the marriage were formed with personal savings he had acquired from his employment back to 1954 and therefore should be his non-marital property.  The evidence showed that his total wages he earned prior to the marriage was $333,695 and the investment accounts totaled $1,551,689 at the time of trial.  Husband conceded at trial that there was no way to trace the funds because there was commingling with marital earnings, but that his testimony alone was enough to establish their non-marital character without documentary evidence regarding the source of funds.  He relied on the case of In re Marriage of Henke,  313 Ill.App.3d 159 for the premise that the lack of documentary evidence does not preclude a party from rebutting the marital property presumption.  However, his reliance was misplaced because Henke was essentially a reimbursement issue, not a characterization issue.  The Appellate Court affirmed the trial court’s ruling and held that husband’s testimony alone and the lack of documentation regarding the source of the funds used to establish accounts during the marriage was not enough to rebut the presumption of marital property.  In re Marriage of Klose, 2023 IL App (1st) 192253.
In re Marriage of Klose

5. The trial court did not abuse its discretion in clarifying its judgment 30 days after the entry of judgment.  Wife filed a motion to clarify the judgment under Section 2-1401 requesting the trial court to clarify $222,045 which husband had withdrawn from his retirement account during the pendency of the case as applied to the overall distribution of property, which was at issue at the trial.  The trial court clarified the judgment and awarded wife 50% of such funds, which was consistent with its overall allocation of marital property.  Husband appealed claiming the trial court had lost jurisdiction to modify the judgment after 30 days from its entry.  The Appellate Court held the trial court’s order was not a modification of the property allocation, but akin to enforcement because it essentially distributed the funds in accordance with its overall property allocation. In re Marriage of Klose, 2023 IL App (1st) 192253.
In re Marriage of Klose