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. Trial court’s order escrowing real estate sales proceeds post-judgment upheld. Husband appealed the trial court’s order escrowing the proceeds from the sale of a piece of real estate he had been allocated as his sole and separate property under the judgment for dissolution of marriage. Husband had filed a motion to reduce and/or abate child support, maintenance, and contribution to children’s expenses due to an alleged termination of his employment.  Wife subsequently filed a motion to establish a child support trust, a petition for rule to show cause for failure to make support payments, and an emergency motion to escrow sales proceeds from the real estate.  The trial court found the matter to be an emergency and ordered the proceeds from the sale of the real estate escrowed.  Husband argued the trial court’s order was an impermissible prejudgment attachment because wife had no legally cognizable interest in the property based on her unadjudicated claims.  The Appellate Court disagreed and held that the trial court did not issue a prejudgment attachment, but instead issued an injunction, and was exercising its equitable power to protect two minor children and their right to support.  A trial court may order an injunction of proceeds to prevent the dissipation of assets that may be used to satisfy court-ordered child support and maintenance. The Court also found that the wife had met all of the requirements of an injunction under Illinois law. In re Marriage of Patel, 2022 IL App (2st) 211650
In re Marriage of Patel, 2022 IL App (1st) 211650.pdf

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 nearly 20 years after entry of a judgment of dissolution of marriage, wife petitioned for enforcement of the judgment and for restitution and sought to treat husband’s disability pension as a retirement pension subject to division per the parties’ marital settlement agreement (MSA).  After the 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.  The trial court denied wife’s request and held that under the case of In re Marriage of Belk,  239 Ill.App.3d 806 (1992), that pursuant to the MSA and the Pension Code that the parties only intended to divide husband’s retirement payments, not disability payments, and therefore wife was not entitled to any portion of his disability.  The Appellate Court reversed.  In doing so, it declined to follow Belk, Id. and instead relied upon In re Marriage of Benson, 2015 IL App (4th) 140682, which stands for the proposition that a disability pension that is actually a substitute for a retirement pension will be treated as a retirement pension.  The Court also relied on the Pension Code which provides that husband began to receive a 3% annual increase to his disability pension at the same time he would have been eligible to receive an annual increase to his retirement pension.  Therefore,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. In re Marriage of Grandt, 2022 IL App (2d) 210648.
In re Marriage of Grandt, 2022 IL App (2d) 210648.pdf

3. Order for supervised visitation affirmed.Father appealed the trial court’s order finding that he had engaged in conduct which seriously endangered the minor child and that it was in the child’s best interest that he havesupervised visitation.  The Appellate Court affirmed.  The evidence propounded at a two-day evidentiary hearing including evidence that father had mental health illness, had refused treatment, abused alcohol, had multiple orders of protection entered against him, and was verbally abusive to the mother in front of the minor child.  The Guardian Ad Litem (GAL), testified that the father had admitted to her he had been diagnosed with unspecified bi-polar disorder and had taken medication in the past, but had discontinued. The GAL also testified that the prior supervisor had refused to continue due to threatening behavior by father in the past and that father had received a citation for driving under the influence. The GAL ultimately recommended that she needed more information regarding whether father was routinely taking his medication before she could recommend anything other than supervised visitation.  The trial court, in ordering continued supervised visitation, found that father’s testimony was not credible, that he had testified inconsistently regarding his alcohol use, and noted his mental health struggles.  The trial court’s endangerment finding was not against the manifest weight of the evidence.  In re Marriage of Palarz, 2022 IL App (1st) 210618.
In re Marriage of Palarz, 2022 IL App (1st) 210618.pdf

4. 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.  The civil rights judgmentprovided that husband would receive annual disbursements from the Oak Park Police Department after his 50th birthday, and upon his death, the same payments would continue to be made to his “present wife” during her lifetime.  Husband received 16 annual payments until his death in 2017.  Husband had also remarried after he and his first wife divorced in 1994.  The U.S. District Court declared the first wife as the defined “present wife” pursuant to the terms of the federal judgment and deferred to the state trial court to determine whether language in the MSA provided that the first wife waived off on her right to receive proceeds from the federal judgment after husband’s death.  The trial court ruled that she had waived off 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 states that the parties are waiving any expectancy or beneficial interest.  The MSA addresses husband’s right to receive disbursements under the judgment, but is 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 while the trial court viewed them as one 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, husband relied on the broad “mutual release” language in the MSA.  However, the Court held that while his 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