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
THE TOP TEN FAMILY LAW FLASH POINTS OF 2023
1.Assisted-reproduction statute governs issue of paternity, not the Parentage Act, when pregnancy results from artificial insemination. Section 201(a)(1) of the Parentage Act presumes that the spouse of the biological mother is the other parent if the parties are married at the time the child is born, but such a presumption can be rebutted with DNA evidence. However, in situations of artificial insemination, the parent-child relationship isgoverned by the assisted-reproduction statute under section 103(d) (750 ILCS 46/103(d)) because assisted reproduction means artificial insemination, and does not include any pregnancy achieved through sexual intercourse. Under section 703(a) (750 ILCS 46/703(a)), any individual who is an “intended parent” is the “legal parent” of any child resulting from assisted reproduction. Further, if the donor and the intended parents do not have a written agreement in which the donor relinquishes all rights to the resulting child, the court shall determine parentage based on the evidence of the parties’ intent at the time of the donation. In re J.M., 2023 IL App (4th) 220537.
In re J.M.
2.Ex-husband’s disability pension payments eventually convert to age-base retirement payments under the Pension Code, which ex-wife was entitled to a portion of under the judgment. After entry of judgment, husband was injured during his employment as a firefighter and began receiving disability benefits. The issue was whether under the Pension Code’s statutory unified employee disability and pension plan, husband’s disability benefits converted to retirement payments upon retirement age, of which wife was entitled to 50% of the marital portion. Since the disability pension was a substitute for a retirement pension, it will be treated as a retirement pension. The Pension Code structurally provides a point at which the income replacement function of the disability pension transitions to a retirement pension as the recipient continues to age. Therefore, the wife was entitled to 50% of the marital portion.In re Marriage of Grandt, 2022 IL App (2d) 210648.
In re Marriage of Grandt, 2022 IL App (2d) 210648.pdf
3.Broad waiver language in marital settlement agreement did not waive ex-wife’s own rights to receive proceeds from ex-husband’s federal civil rights judgment. At issue was whether broad waiver language in a 1994 MSA where both parties waived off on all rights of the other’s property and assets included a waiver of wife’s rights to receive proceeds from husband’s federal civil rights judgment which was entered during the marriage in 1987. Husband had remarried after he and his first wife divorced in 1994 and was receiving payments at the time of his death. The trial court ruled that the first wife had waived off on her rights to receive any portion of the payments and the Appellate Court reversed. The Court considered two factors: (1) whether the disputed asset was specifically listed in the MSA; and (2) whether the waiver language specifically stated that the parties are waiving any expectancy or beneficial interest. The MSA addressed husband’s right to receive disbursements under the judgment, but was silent about the first wife’s right to receive disbursements after his death. The Appellate Court viewed these as two different assets, not one combined asset. Because the MSA listed husband’s right to payments as a marital asset and awarded that asset to husband, but did not address first wife’s right to payments as a marital asset and did not award her rights to payments to husband, the MSA did not comply with the first factor. With respect to the second factor, the Court held that while the first wife broadly relinquished all rights to husband’s property, she was not relinquishing any of her rights to her own property, including her right to receive payments under the judgment after his death. Therefore, the first wife’s rights to receive annual payments under the federal civil rights judgment survived. In re Marriage of Kelly, 2022 IL App (1st) 220241.
In re Marriage of Kelly 2022 IL App (1st) 220241.pdf
4.Denial of intrastate relocation reversed by Appellate Court. Mother sought to relocate the minor child from the Naperville area to Galesburg, Illinois which was denied by the trial court. The Appellate Court reversed. The decision was against the manifest weight of the evidence because the evidence showed that mother’s financial position would be improved due to more affordable housing and assistance from her extended family in Galesburg. Father’s failure to keep current in his child support for over a year made it difficult for mother to make ends meet in the Naperville area. While father’s weekday parenting time was significantly reduced (except during the summer), this did not outweigh the other factors which weighed in favor of the child’s life being improved with a move to Galesburg. Burmood v. Anderson 2023 Ill App (2d) 230092.
Burmood v. Anderson
5.Petition to terminate maintenance based on cohabitation denied in a “close call” decision. The trial court denied husband’s petition to terminate maintenance based on cohabitation as a “close call.” The trial court found that husband had established wife was in an intimate dating relationship, but he had failed to establish by a preponderance of the evidence that she was in a de facto marriage. The Appellate Court affirmed noting that the case of In re the Marriage of Herrin, 262 Ill.App.3d 573 has been cited throughout Illinois for its non-exhaustive list of factors which appellate court have used to determine whether a party is in a de facto marriage. The Court cautioned that the Illinois Supreme Court has not adopted the Herrin factors as the appropriate factors to consider, and this list was never intended to be the only set of factors used in an analysis. This relationship lacked certain practical and economic characteristics such as commingled finances and a singular mutual household. The couple did not share any bank accounts or credit cards and their life insurance policies listed their respective children as beneficiaries, not each other. While the couple had a long-term dating relationship where they traveled together and spent holidays together and were often around each other’s children, they were not contemplating marriage, did not have a joint residence, and did not commingle finances. In re the Marriage of Edson, 2023 IL App (1st) 230236.
In re Marriage of Edson
6.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. Kenney v. Strang, 2023 IL App (1st) 221558.
Kenney v. Strang
7.59-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. 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. 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 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. In re Miller, 2023 IL App (1st) 210774.
In re Parentage of Daryl Miller
8.Witnesses are prohibited from discussing testimony with counsel once they take the witness stand. A civil party does not have a right to consult with his counsel at any time about any matter during the course of his/her testimony. Reynolds v. Alabama Depart. of Transportation, 4 F. Supp. 2d 1055 (M.D. Ala. 1998). The Appellate Court noted that Reynolds was not precedential but agreed with the summation of its decision and applied it. Further, a testifying party is permitted to engage in non-testimonial matters with counsel during the period of testimony, including strategizing, developing tactics, and generally managing the case. The Court also noted that even in criminal proceedings, a defendant does not possess the right to discuss testimony with his or her counsel while that testimony is in progress. In re Marriage of Keegan and Papin, 2022 IL app (2d) 190495.
In re Marriage of Keegan 2022 IL App (2d) 190495
9.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
10. 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 trust in 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