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 abused discretion when ordering sale of the marital residence during the pendency of the divorce proceedings.  Under Section 501 of the IMDMA, the trial court may grant temporary relief, including ordering the purchase or sale of assets.  The Appellate Court found that the relief contemplated under Section 501 is intended to be temporary pending a final dissolution, but the sale of the marital residence in this instance was not temporary.  The Court acknowledged that Section 501 authorizes the sale of an asset prior to dissolution, but that is appropriate only in extraordinary circumstances when such sale is required to otherwise maintain the status quo prior to final dissolution, such as to avoid foreclosure of a residence.  The Court held that the immediate sale of the residence was wholly unnecessary as there was no exigency that necessitated the sale.  Further, a court should not use Section 501 to unnecessarily adjudicate the property rights and claims of the parties prior to final judgment.  In re Marriage of Gabrys, 2023 IL App (1st) 221763.
    In re Marriage of Gabrys
  2. Appellate Court had jurisdiction to hear interlocutory appeal due to wife perfecting notice of appeal within 30 days of the trial court’s order which modified the original injunctive order.  At issue on appeal was whether the trial court abused its discretion when ordering the sale of the former marital residence during the pendency of the case when neither party occupied the residence.  Wife had left the United States for Poland, did not show up for her deposition, and did not appear pursuant to Rule 237(b) for a subsequent hearing.  The trial court found there was no justification for not appearing and granted husband’s motion to sell the residence.  Wife filed a motion to reconsider which was denied.In the order denying the motion to reconsider, the court ordered that the sale of the residence was to proceed immediately.  The Appellate Court noted that generally an order to sell a residence is not separate claim, but is part and parcel to the divorce action, and even the inclusion of Rule 304(a) language would not vest jurisdiction for the appeal to move forward.  Rule 307(a)(1), however, allows an appeal from an interlocutory injunctive order, but wife did not timely comply with the 30 day rule to file her notice of appeal in order for jurisdiction to vest.  However, because the trial court did not just deny the motion to reconsider in the second order, but also ordered that the sale of the home should immediately proceed, that order modified the first injunctive order which ordered the sale of the residence, and because the notice of appeal was filed within 30 days from the entry of that particular order, the Appellate Court deemed it had jurisdiction to hear the appeal. In re Marriage of Gabrys, 2023 IL App (1st) 221763.
    In re Marriage of Gabrys
  3. Restriction of parenting time with three minor children upheldand sanctions granted by Appellate Court for frivolous appeal.  Mother appealed the final parental allocation judgment which restricted her parenting time with three minor children by requiring supervised visitation.  Both the GAL and the custody evaluator supported that conclusion through extensive testimony.  The evidence showed mother had long-standing issues of anxiety, an eating disorder, post-partum depression and possible ADHD which she attempted to manage with alcohol, opiates, sleeping medications and other medications at various times.  The trial court found that the evidence showed that she had misused or abused such substances and granted father sole decision-making and parenting time.  The court further found that mother had engaged in conduct which rose to the level of serious endangerment and that it was in the children’s best interest that her parenting time be supervised.  Mother filed a motion to reconsider and her notice of appeal.  She contended on appeal that there was insufficient reliable evidence to support a serious endangerment finding.  Mother provided no transcript of the trial or any of the exhibits the trial court referenced in its opinion, delayed several times in providing a complete record when directed to by the Court, and even after the Court reinstated her appeal, she did not supplement the record with a transcript she had previously alleged was unavailable. The Court affirmed the allocation judgment.  The Court also granted father’s motion for sanctions finding that mother unduly delayed the appeal by ignoring the Appellate Court’s request for an explanation of the missing transcript which she said was “essential” to her appeal, and concluded the only point in bringing the appeal was to cause unnecessary delay.  The Court further stated the appeal would not have been brought in good faith by a reasonable attorney and that sanctions must be levied and ordered father’s counsel.  In re Marriage of Lindell, 2023 IL App (2d) 220055.
    In re Marriage of Lindell
  4. Order requiring father to use Soberlink to secure parenting time affirmed.  Husband appealed the trial court’s order requiring him to test regularly with Soberlink in order to continue to have parenting time with the parties’ 12 year-old daughter.  The record was replete with ample evidence of father’s alcohol abuse, including multiple DUI’s, his voluntary surrender of his driver’s license because he removed the ignition interlock device on his car, his multiple stints in inpatient rehab and detox programs, physical altercations with wife, and multiple reconciliations and separations from wife which coincided with periods of relapse.  During the pendency of the proceedings, husband tested with the BACtrack device, which the court found was unreliable because it did not provide real-time results or the videos of husband taking the tests.  Therefore, the trial court ordered Level 2 Soberlink testing with specific times husband must test as well as alcohol counseling, both of which husband appealed.  The Appellate Court affirmed stating that the trial court’s finding of serious endangerment, which was necessary to order the restrictions on parenting time such as Soberlink, was not against the manifest weight of the evidence given the breadth of evidence in the record.  Husband’s claim that he had been sober since 2020 was not supported by the evidence, and it was clear that his drinking caused mental and emotional harm to the parties’ daughter.The order specifically requiring him to use Soberlink  and attend counseling was not an abuse of discretion as the restrictions were tailored to address the issues in the case and fall squarely withing the authorized restrictions of Section 603.10(a)(5) and (8).In re Marriage of Hipes and Lozano, 2023 IL App (1st) 230953.
    In re Marriage of Hipes and Lozano