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 Illinois Supreme Court granted husband’s petition for leave to appeal the Appellate Court’s order holding that it did not have jurisdiction to hear an appeal involving wife’s request for attorneys’ fees although the trial court had provided Rule 304(a) language in its order. The Supreme Court reversed the Appellate Court. At the trial level, the 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 engaged in a lengthy discussion of the conflicting case law in various districts concerning appellate jurisdiction of post-judgments actions including: In re Marriage of Carr, 323 Ill.App.3d 481 (1st Dist. 2001); In re Marriage of A’hearn, 408 Ill.App.3d 1091 (3rd Dist. 2011); In re Marriage of Teymour, 2017 IL App (1st) 161091; In re Marriage of Alyassir, 335 Ill.App.3d 998 (2nd Dist. 2003). It decided to follow the holdings of the Second and Fourth Districts and the Teymour Court: Unrelated post-judgment dissolution matters constitute separate claims, so that a final order disposing one of several claims may not be appealed without a Rule 304(a) finding. In the Crecos appeal, the Appellate Court did have jurisdiction over the issue of attorneys’ fees due to the Rule 304(a) language. 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. The case was remanded to the Appellate Court for further proceedings. 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

Trial court reversed for failing to address wife’s count for breach of contract claim related to Immigration Services Form I-864. Wife appealed the trial court’s final order after a trial on dissolution of the parties’ marriage for its failure to address her breach of contract claim pursuant to Form I-864 of Immigration Services, which is the Affidavit of Support husband had filed when wife came to the United States from Russia to marry him. Form I-864 provides that the sponsored immigrant (wife) may seek enforcement of the sponsor’s obligations through an appropriate civil action in “any appropriate court.” The trial court determined that federal court was the appropriate forum to hear the breach of contract claim and the Appellate Court reversed. The sponsor’s obligation under the Affidavit does not terminate in the event of divorce and the right of support conferred by federal law exists apart from whatever rights a sponsored immigrant might have under state divorce law. Further, there is no requirement to pay spousal support when the sponsored immigrant’s income exceeds the poverty threshold for a household. State courts have jurisdiction to hear claims seeking to enforce Form I-864 obligations, and the trial court should have addressed such claim. The Court reversed and remanded. In re Marriage of Bychina and Astrakhantsev, 2021 IL App (2d) 200303.
In re Marriage of Bychina, 2021 IL App (2d) 200303.pdf

Post-judgment appeal of an order granting motions to quash certain subpoenas in an underlaying post-judgment action dismissed for lack of jurisdiction. Wife filed a petition to compel compliance of the parties’ judgment for dissolution of marriage and marital settlement agreement (MSA) and issued subpoenas in connection with such action. Husband brought a motion to dismiss the underlying complaint and motions to quash the subpoenas. The trial court quashed the subpoenas and denied wife’s motion to reconsider regarding same. Wife filed a Notice of Appeal with respect to the order denying her motion to reconsider. However, an order granting or denying a motion to quash a subpoena is not a final or appealable order and therefore the appeal was dismissed for lack of jurisdiction. The Court did find it had jurisdiction to hear the appeal relative to the dismissal of the underlying petition to compel compliance due to the Rule 304(a) language the trial court included in its order. (see Flash Point #4) In re Marriage of Reicher, 2021 IL App (2d) 200454.
In re Marriage of Reicher, 2021 IL App (2d) 200454.pdf

Order dismissing post-judgment petition to compel compliance with judgment for dissolution of marriage upheld. Wife brought a petition to compel compliance of the parties’ judgment for dissolution of marriage and marital settlement agreement (MSA) with respect to several financial provisions including doing discovery on an alleged undisclosed account and distribution of an equity award husband received in 2016. Husband filed a motion to dismiss which was granted and wife appealed. The Court noted that wife’s petition sought to obtain evidence that could support a petition to compel husband to provide her money to which she was entitled under the MSA. Wife’s sole allegation was that she was “informed and believed” that husband had opened one or more accounts with Fidelity in his individual name prior to the final judgment which he failed to disclose. This allegation is not sufficient to state a claim upon which relief can be granted. With respect to the 2016 equity award, the parties entered into the MSA in 2017, after husband would have earned an equity award in 2016 and if the parties had intended to award a portion of the equity award to wife, it would have been included in the MSA. The language of the MSA and the testimony elicited at the prove-up indicated that the parties had resolved all financial issues between them in the MSA. In re Marriage of Reicher, 2021 IL App (2d) 200454.
In re Marriage of Reicher, 2021 IL App (2d) 200454.pdf