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.Determination that Illinois was the children’s home state was not in contravention to the trial court’s ultimate decision to grant relocation. In a factually unique relocation case, where the young minor children (twins) were moved consistently between Illinois and Colorado after their birth until almost two years later when the parties separated, the trial court found Illinois was their home state at the time the underlying petition was filed mandating that the parenting issues be heard in Illinois, but ultimately ruled that the wife would have primary decision-making and the children would live primarily with her Colorado, thereby granting her petition for relocation. The case involved several days of trial from multiple fact witnesses in addition to testimony from a GAL and Dr. Ravitz and Dr. Kraus, and a lengthy oral and written opinion by the trial court. Husband appealed. Husband took issue with the trial court’s description that this was a “nontraditional” relocation case. The Appellate Court disagreed that this language was problematic. The evidence showed that the parties maintained their own multistate relationship long before their marriage, after it, as well as after the birth of the twins. There was conflicting evidence about wife’s intentions to move to Illinois long term and husband’s intentions to possibly move to Colorado. Ultimately, the trial court found that the children’s primary residence was with wife, wherever she was. That finding did not contradict a legal admission made by wife that Illinois was the children’s home state when she filed her petition for relocation after Illinois was determined to be the children’s home state. The Appellate Court stated, “this is a matter of form over substance that has no real applicability to the unique circumstances here.” The Court noted that primary residency is an entirely different legal concept while home state is a legal concept under the UCCJEA, which only determines which state in which the proceeding will take place. The ultimate determination of the merits of the case involved the best interest standard under the factors set forth in the IMDMA. Kenney v. Strang, 2023 IL App (1st) 221558.
Kenney v. Strang
2.Trial court’s granting of relocation from Illinois to Colorado upheld. Husband appealed the trial court’s granting of wife’s petition to relocate twins from Illinois to Colorado. Husband argued, in addition to the argument that the court misapplied the relocation factors, that wife had failed to comport with the notice requirement under the IMDMA. The Appellate Court did not find error with the trial court’s reasoning that the notice requirement did not apply because the children were constantly being moved from Illinois to Colorado and husband knew wife was taking the twins to stay in Colorado on the day she left, and that there was no particular planned date for their return. The evidence suggested that wife herself may have not known that she intended to permanently relocate to Colorado until a month or two later. The children had a better support system and healthier environment with their maternal grandparents in Colorado; wife had a deeper history and quality relationship with the children and it was uncontested she was their primary caregiver. It was not error for the GAL and experts to not investigate schools in Colorado as the children were not school age at the time of trial; the trial court did hear direct testimony from the Colorado school director regarding potential educational opportunities in Colorado. The children’s extremely close relationship with wife’s parents and the fact that they were intimately involved in their lives, including being back up childcare when wife had to work also weighed in wife’s favor. The Appellate Court held the trial court did not just engage in an analysis of “who won the most factors,” but considered all of the factors and weighed them appropriately. Its decision to grant relocation was not against the manifest weight of the evidence. Kenney v. Strang, 2023 IL App (1st) 221558.
Kenney v. Strang
3.Husband’s suit against wife’s boyfriend for intentional infliction of emotional distress allowed to move forward. After learning that his wife was having an affair, husband embarked on a surveillance campaign where he had wife and her boyfriend under surveillance for 12 hours per day for three years at a cost of $1.295 million. For purposes of this case, the husband sued the boyfriend for intentional infliction of emotional distress alleging he had sustained severe emotional distress after viewing “vile and vulgar” text messages the boyfriend had sent the couple’s 13-year old son who had autism. The boyfriend brought a motion for summary judgment which the trial court granted. Husband appealed and the Appellate Court reversed. The Appellate Court’s opinion turned on the second prong of the required elements for tortious interference: the defendant either intended that his conduct should inflict severe emotional distress or knew that there was a high probability that his conduct would cause severe emotional distress. Based on current case law, a plaintiff may maintain a cause of action even if the alleged outrageous conduct was not directed specifically at the plaintiff, and therefore, whether the facts here are sufficiently egregious to warrant damages was for the trier of fact to resolve. The ultimate question of fact was whether the boyfriend should have known that vile and disturbing text messages sent to husband’s 13-year old son would be seen by husband and cause him emotional distress. Kornick v. Goodman, 2023 IL App (2d) 220197.
Kornick v. Goodman