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

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.

Agreed Plenary Order of Protection upheld after hearing on motion to vacate. The son of an elderly father, who had power of attorney over his father, filed and obtained an emergency order of protection on behalf of his father against another son (the petitioner’s brother and respondent). The father also lived with a third son who was involved in the proceedings by virtue of residing with his father. At the hearing on the return of the emergency, an agreed plenary order of protection was entered which provided among other items, conditions upon which the respondent could have contact with his father, which included the contact being in the presence of certain individuals. Ten days after the entry of the plenary order of protection, respondent moved to vacate it, arguing that there was no meeting of the minds because he had only agreed to the order’s entry because he thought there was also an agreement for the family to attend mediation in order to resolve the order of protection. The trial court denied the motion to vacate and the Appellate Court affirmed. Under Section 2-1301 of the Illinois Code of Civil Procedure, the respondent had to show that substantial justice was not achieved by the agreed order, as set out by four factors in the case of Draper & Kramer v. King, 2014 IL App (1st) 132073. The trial court did not abuse its discretion in refusing to vacate the order, especially because the order was not a complete ban on respondent having contact with his father, and therefore it could not be said that substantial justice was not achieved. McNulty on behalf of McNulty v. McNulty, 2022 IL App (1st) 201239.
McNulty v. McNulty, 2022 IL App (1st) 201239.pdf

Trial court did not abuse its discretion by considering unsworn statements by counsel at a hearing on a motion to vacate a plenary order of protection. At issue at a hearing on a motion to vacate a plenary order of protection filed 10 days after the entry of an agreed plenary order was whether the trial court properly considered the non-moving party’s counsel’s unsworn statement, although such statements were not in counsel’s written brief. The Appellate Court held that this was not an abuse of discretion considering that the trial court considered unsworn statements of both parties’ current counsels at the hearing and there was a representation that respondent’s former counsel refused to sign an affidavit supporting all of the facts set forth in respondent’s motion to vacate. At issue was whether respondent had agreed to enter the plenary order upon his understanding of a condition that his family had agreed to attend mediation in order to resolve the plenary order. Respondent’s motion did not allege that anyone but his prior counsel (who withdrew after the entry of plenary order) spoke with him about mediation. The Court also noted that the transcript contained testimony where the court asked the respondent specifically if he understood the terms of the order and whether he was agreed to it, to which the respondent answered in the affirmative. Respondent heard the list of conditions, none of which included mediation, and he stated that he had freely agreed to those terms. McNulty on behalf of McNulty v. McNulty, 2022 IL App (1st) 201239.
McNulty v. McNulty, 2022 IL App (1st) 201239.pdf

3. Motion to modify maintenance denied due to “catch-all” provision in MSA providing that the agreement was nonmodifiable except as to the support, custody, or visitation of the minor child. The trial court denied husband’s motion to modify maintenance obligation due to catch-all language as the end of the MSA which provided that the agreement shall not be changed, modified or altered by court order except by mutual consent of the parties. The language included an exception for support, custody, or visitation of the minor children. Husband appealed and the Appellate Court affirmed. The catch-all provision at the end of the MSA was a clear and unambiguous statement that the entire MSA was nonmodifiable except for the terms concerning the support, custody and visitation of the minor children or where the parties mutually consent. In re Marriage of Scarp and Rahman, 2022 IL App (1st) 210711.
In re Marriage of Scarp, 2022 IL App (1st) 210711.pdf

4. Catchall provision of MSA providing for non-modifiabiliy of MSA permitted under amened section 502(f) of IMDMA. At issue on appeal was whether a catchall provision of an MSA providing that the agreement was nonmodifiable except by mutual consent of the parties was a bar to a motion to modify maintenance (See Flash Point #3). The Court concluded that the legislative intent of the 2016 amended version of section 502(f) combined with the Illinois Supreme Court case of In re Marriage of Dynako, 2021 IL 126835, continues to permit the parties to an MSA to employ a catchall provision to effectuate the intent that the entire MSA. If the parties employ such a catchall provision of non-modifiability, this encompasses an agreement that the maintenance is nonmodifiable in its entirety. The Court further stated that this reasoning is consistent with the pre-amendment case law which held that such catchall agreements were interpreted as sufficient to make maintenance nonmodifiable, and there was nothing in the plain language of the amended section 502(f) which indicated that the legislature intended to change this. In re Marriage of Scarp and Rahman, 2022 IL App (1st) 210711.
In re Marriage of Scarp, 2022 IL App (1st) 210711.pdf