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
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092;


Illinois Supreme Court reverses Appellate Court and holds it did have jurisdiction to hear appeal on fee petition. The Supreme Court resolved conflicting case law in various districts regarding appellate jurisdiction of post-judgment actions. After a trial court awarded wife attorneys’ fees in connection with two prior appeals and included Rule 304(a) language in its order, the Appellate Court characterized the fees as interim fees pursuant to Section 501(c-1), noted that other issues in the case remained unresolved, and dismissed the appeal for lack of jurisdiction. The Supreme Court reversed. Unrelated post-judgment dissolution matters constitute separate claims. The Appellate Court had jurisdiction over the issue of attorneys’ fees due to the Rule 304(a) language in the trial court order. The Appellate Court also erred in finding that the fees ordered were temporary in nature since this was a post-judgment action and temporary fees apply only to pre-judgment actions. In re Marriage of Crecos, 2021 IL 126192.
In re Marriage of Crecos, 2021 IL 126192.pdf

Illinois Supreme Court rejects the “test the waters” doctrine as it pertains to a substitution of judge as a matter of right and holds SOJ should have been granted. In a breach of contract case between a hospital and insurance company, the hospital brought a motion for substitution of judge as a matter of right (SOJ) which the trial court denied. The hospital appealed after the court entered judgment upon jury verdict for the insurer. The issue before the Supreme Court was whether the “test the waters” doctrine constituted a valid basis for denying an SOJ as a matter of right. The Court concluded that such doctrine conflicts with the plain language of 735 ILCS 5/2-1001(a)(2). The underlying issue in the case was whether the trial court had the authority to appoint a discovery master to oversee discovery disputes. The hospital filed a motion to strike the discovery master and a memorandum in support thereof. Although the trial court did not rule on the same day of the hearing, it announced that it believed there was precedent for such appointment. The hospital filed a motion for SOJ which was denied by the trial court under the test the waters doctrine since it had orally indicated how it was likely to rule. The Supreme Court ultimately held that the plain language of the statute governing an SOJ as a matter of right allows for a change if two requirements are met: (1) It must be presented before trial or hearing begins and (2) It must be presented before the judge to whom it is presented has ruled on any substantial issue in the case. A party being able to form an opinion as to the court’s disposition toward his or her case is not among the criteria listed in the statute, and therefore the SOJ should have been granted. Palos Community Hospital v. Humana Insurance Co. 2021 IL 126008.
Palos Community Hospital v. Humana Insurance Co., Inc., 2021 IL 126008.pdf

3. First District holds distribution of interest from IRA withdrawal is income for purposes of calculating child support. Wife took withdrawals from an IRA during the pendency of the case to pay for attorneys’ fees and other family expenses and husband appealed the trial court’s calculation of wife’s income for purposes of calculating child support on the grounds it excluded such funds from the calculation. The Court noted the split in authority between the Second and Fourth Districts on whether IRA withdrawals constitute income for purposes of support and followed the reasoning of the Fourth District, In re Marriage of O’Daniel, 382 Ill.App.3d 845 (2008), that interest disbursements, not principal, are income for purposes of calculating income for child support. The Court noted that notwithstanding the split in authority, all Courts who have ruled on the issue agreed that at least some portion of the IRA withdrawals may constitute income. The Court remanded for the trial court to determine what portion of the withdrawal was interest, if any, and for the recalculation of the support accordingly. In re Marriage of Budorick, 2020 IL App (1st) 190994.

4. Fifth District holds mandatory retirement distributions and withdrawals from an inherited IRA are income for purposes of calculating child support. Days after the First District ruled in the above case, the Fifth District ruled on a certified question presented to it: Whether mandatory withdrawals taken from an inherited IRA constitute income for the purposes of Section 504 and 505 of the IMDMA. The Fifth District answered in the affirmative. At issue was approximately $10,700 per year in annual income to either be included or excluded from the calculation. When a party inherits an IRA there is no “double counting” to be concerned with because the money was not counted as income when it was originally received and then again when it is withdrawn. In re Marriage of Schell, 2020 IL App (5th) 200099.

5. Wife forfeited her objections to hearsay and classification of property by failing to raise the objections at trial. In a highly litigious case where wife represented herself at trial after multiple attorneys throughout the case withdrew and she walked out of the courtroom after the trial court ruled against her on several motions, she appealed the final judgment which was ultimately entered. The Appellate Court affirmed the denial of a motion for SOJ for cause; the agreed order for bifurcation since it was expressly agreed to by the parties in court; an order for sanctions for discovery violations against wife; and the dismissal of several other temporary motions throughout the pendency of the case. Wife appealed the amount of child support she was to pay because the court based the amount on hearsay testimony and the classification of marital and non-marital property. The record showed the trial court explicitly warned wife he would continue to hold trial and resolve the outstanding issues even if she left, and wife still opted to leave the courtroom. The court was within its authority to enter judgment based on the evidence presented. In re Marriage of Potenza, 2020 IL App (1st) 192454.

6. Plenary Order of Protection can be extended indefinitely. The Fourth District held that a plenary order of protection can be extended indefinitely under the plain language of the Domestic Violence Act (DVA). Prior to the expiration of a plenary order, wife sought an extension for an indefinite period of time. Husband did not appear at the hearing and the order of protection was extended indefinitely. The plain language of Section 220(e) of the DVA states that “An extension of a plenary order of protection may be granted, upon good cause shown, to remain in effect until the order of protection is vacated or modified.” Although the initial order of protection has a specific time period of two years under the statute, no time limit exists for the extension of such an order. Because there was a more specific rule governing extensions in subsection (e), any conflict between the more general two-year rule should be resolved in favor of the specific one. Dale v. Bennett 2021 IL App (4th) 200188.

7. Trial court’s determination of date of cohabitation upheld. Husband appealed the trial court’s finding of the date that his ex-wife began cohabitating with her boyfriend, and thus, the date by which maintenance would terminate. The ex-wife and her boyfriend’s relationship evolved over time and there were concerns about the ex-wife’s credibility as to many of the factual assertions. The evidence showed that the parties had commingled finances, were living together in a home, the ex-wife was gifted a ring that she wore on her left ring finger, and that she had told friend she was engaged. There was also evidence that the relationship was rocky and the couple fought consistently. The ex-wife’s boyfriend passed away in an automobile accident prior to trial. The trial court found that maintenance would terminate on the date husband filed his petition to terminate maintenance because pinpointing an exact date was difficult to impossible. The Second District affirmed the trial court noting that demonstrating that the evidence reasonably supports a different outcome does not demonstrate that the trial court’s decision was against the manifest weight of the evidence. In re Marriage of Andres, 2021 IL App (2nd) 191146.
https://In re Marriage of Andres, 2021 IL App (2d) 191146.pdf

8. Third District reverses admissibility of hearsay statements by children in plenary order of protection hearing. Wife filed for an order of protection and a petition for supervised parenting time against husband. The trial court granted both petitions and entered a plenary order of protection under the Domestic Violence Act (DVA). Husband appealed the plenary order of protection. Evidence at hearing included statements made by the children to wife regarding alleged abuse by husband towards the children which the trial court admitted under Section 606.5(c) of the IMDMA which does not require a separate hearing regarding the admissibility of a child’s proposed hearsay statements (unlike the DVA which requires one). The Court reversed and remanded back to the trial court for a reliability hearing consistent with the DVA to determine whether the children’s hearsay statements should be admitted. In re Marriage of Portillo and Martinez, 2021 IL App (3d) 200221.
https://In re Marriage of Portillo, 2021 IL App (3d) 200221.pdf

9. Postnuptial agreement affirmed despite wife receiving less than 30% of quantified marital estate. Wife appealed the ruling of the trial court that the postnuptial agreement she entered into with husband was valid and enforceable, arguing it was both procedurally and substantively unconscionable. The Appellate Court upheld. Wife received 28% of the marital estate excluding the value of husband’s stock options. Wife argued the agreement was procedurally unconscionable because husband procured the agreement through oppressive and dishonest means by threatening her with custody litigation if she did not accept the terms, dictating how much any lawyer she consulted could make revisions, and bombarding her daily for almost two months to sign. The Appellate Court upheld the trial court’s finding that wife did not lack meaningful choice in signing the agreement due to the fact that she sought out legal advice but chose not to formally secure representation. There was no evidence before the court with respect to the value of the stock options so there was no basis for the Court to include them in the consideration of whether the agreement was unconscionable. The Court held that while the agreement favored husband, it could not conclude that enforcing it would be inconsistent with the interests of justice. Justice Hyman wrote a lengthy dissenting opinion. In re Marriage of Prill, 2021 IL App (1st) 200516.
In re Marriage of Prill, 2021 IL App (1st) 200516.pdf

10. Trial court instructed to consider whether husband waived attorney client privilege in a 2-1401 action. In a Section 2-1401 proceeding brought by wife pursuant to the allegation that husband fraudulently concealed assets during the divorce proceedings by not disclosing $350,000 in additional profits, the Appellate Court ordered the trial court to conduct an evidentiary hearing on whether the crime-fraud exception to the attorney-client privilege applied. Wife’s sole basis for the 2-1401 petition was an email between husband and his divorce counsel referencing the potential additional $350,000 in profits which she received by searching the contents of one of the parties’ children’s cell phones which was previously owned by husband. On remand, the Appellate Court directed the trial court to consider whether husband waived the privilege by giving his cell phone to the minor child which contained the alleged privileged communication. In re Marriage of Sinauer, 2021 IL App (3d) 190692.