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
Language in marital settlement agreement clearly provided for non-modifiable maintenance. The First District affirmed the trial court’s ruling that the language in the marital settlement agreement (MSA) provided for non-modifiable maintenance and denial of husband’s request to modify his maintenance upon a substantial change of circumstances. Husband alleged his financial circumstances had changed since the entry of the judgment and he could no longer continue to pay according to the 8-year schedule set forth in the MSA. The applicable language in the MSA stated: “Said maintenance payments shall be non-modifiable pursuant to Section 502(f)” of the IMDMA. Husband claimed the maintenance was not truly non-modifiable because it did not specifically identify that the non-modifiability applied to amount, duration, or both. The Appellate Court affirmed the trial court and held that the language in the MSA was a clear expression of the parties’ intent to make the obligation non-modifiable, and it was not necessary that the language as to “amount, duration, or both,” need not be included to manifest the parties’ clear intent. In re Marriage of Dynako, 2020 IL App (1st) 192116.
2. Grave risk finding by state trial court under Hague Convention upheld. In a parentage action in state court, father filed a petition to return his daughter to Mexico under the Hague Convention. The child had been born in Mexico and mother moved to Chicago with the child and subsequently filed a petition to establish parentage, custody and child support. The trial court conducted a hearing under Section 2-615(e) and found that the habitual residence of the minor child was Mexico, and there was no material issue of fact with regard to the existence of custodial right by father at the time of the removal. Having determined that father’s petition met the prima facie requirements for wrongful removal, the court then conducted an evidentiary hearing on whether grave risk of harm or an otherwise intolerable situation existed under Article 13(b) of the Hague Convention. The trial court heard testimony from both parties and found mother’s testimony credible and father’s testimony not credible. The court heard evidence of three instances of alleged verbal, emotional, and physical abuse supported by affidavits of witnesses and third -party testimony. The trial court found that the grave risk exception applied and the Appellate Court upheld. The Appellate Court noted the credibility finding by the trial court, and also engaged in a discussion of the “grave risk” standard, acknowledging judicial consensus has not emerged in the area with some courts taking a narrow view and others taking a broader view. In support of its holding, the First District noted a pattern of escalating violence and a pattern of interference with mother’s personal liberty, which affected the psychological well-being of the child. The Court also stated that a party must not endure years of violent abuse before the grave risk exception should be applied, and that it was not necessary to present expert testimony with respect to the psychological effects of the alleged abuse on the child in order to meet the grave risk exception. Montes v. Jose Guadalupe Ignacio Ulloa Toscano, 2020 IL App (1st) 191762.
3. Oral admission of paternity in court under oath sufficient to legally establish parentage. The trial court made a finding of paternity after the putative father accepted parentage orally at a hearing under oath after repeatedly refusing to comply with the trial court’s prior order to submit to DNA testing. The admission of paternity came after mother had alleged another putative father was the father, but DNA testing proved otherwise. The second putative father had originally said he could “possibly” be the father and then changed his position in court and testified he was sure he was the father. The State and Public Guardian appealed arguing that the court did not have the authority in this situation to make a finding of paternity where there was doubt over who the father was, and when the putative father refused to submit to a DNA test. The Appellate Court disagreed and affirmed. The trial court properly applied Section 616(a) of the Parentage Act which provides that if the court finds that the admission of parentage satisfies the requirements of the section, and there is no reason to question the admission, the court shall enter an order adjudging the child to be the child of the personal admitting parentage. While the trial court had the right to compel the putative father to submit to DNA testing, it was not mandatory. Section 616(b) of the Act was satisfied by the putative father’s acknowledgement of paternity under oath. The Court also noted that the mother’s prior allegations of another father did not cast doubt on the oral acknowledgement under oath, nor had the State or Public Guardian provided the name of another person who could have been the child’s father. Erika S. v. Bruce P., 2020 IL App (1st) 200616.
4. 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. The Appellate Court vacated an award for GAL fees which was entered for a GAL in a prior case in Lake County which was dismissed. The GAL needed to intervene in the Cook County case in order for the petition to be considered. The Court also reversed in part an order granting father temporary custody and wife supervised visitation and remanded for a best interest hearing to fashion an appropriate parenting schedule and to review whether supervised visitation should be modified. In re Marriage of Potenza, 2020 IL App (1st) 192454.