By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
Trial court’s denial of expansion of parenting time for father upheld. In a post-judgment matter, father requested a modification to the parenting schedule on the grounds that the children were now older and both children expressed a desire to spend more time with him. The trial court denied his motion and father appealed. The Appellate Court upheld the trial court’s decision and in doing so addressed the appropriate statute section to apply when analyzing the issue. Section 610.5(a) of the IMDMA (as amended) specifically provides for a petition for modification of parenting time to proceed upon a showing of changed circumstances that necessitates modification to serve the best interests of the child. Once the case proceeds to an evidentiary hearing, the applicable legal standard for modifying the parenting schedule is contained on Section 610.5(c) which provides in pertinent part:
That the court shall modify a judgment when necessary to serve the child’s best interests if the court finds that on the basis of facts that have arisen since the entry of the existing judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent, and that a modification is necessary to serve the child’s best interests. (750 ILCS 5/610.5(c))
In ruling on the substantive merits, the Court noted that father cited no law to support his claim that a child aging and expressing a desire to spend more time with another parent supports a substantial change of circumstances. The Court also noted that the children were ages 6 and 9 when the original judgment was entered, were 11 and 13 at the time he filed his petition for modification, and that their aging was a fact that was anticipated at the time of entry of the judgment. The Court was careful to note that its holding did not mean that that the aging of children or their expressed wishes could never constitute a substantial change of circumstances, but that it did not in this particular case. The Court relied on the intense history of animosity between the parties and the fact that father had not demonstrated at trial that the animosity had decreased which would make a schedule closer to 50/50 practically possible. In re Marriage of Trapkus, 2022 IL App (3d) 190631.
In re Marriage of Trapkus, 2022 IL App (3d) 190631.pdf
2. Trial court’s modification of holiday schedule reversed. In a post-judgment parenting time modification proceeding filed by father, where there was a clear history of intense animosity between the parties, and where mother had the majority of parenting time, the trial court modified the parties’ holiday schedule pursuant to Section 610.5(e) which provides that the court can modify a judgment in the absence of changed circumstances if the modification is (1) in the best interest of the child and (2) one of four enumerated circumstances is present. Father appealed the ruling which resulted in less parenting time for him, and the Appellate Court reversed. The Court noted that the trial court did not make a determination of which specific enumerated circumstance set forth in 610.5(e) was present, and therefore it assumed it had to be the circumstance that “the modification constitutes a minor change.” However, the modifications were not minor in that the court eliminated Veteran’s Day, Columbus Day and the Saturday and Sunday following Thanksgiving which all reduced father’s parenting time. The Court also found that while the split parenting time on Christmas Eve/Christmas Day and New Year’s Eve/New Year’s Day could create logistical problems for the parties, it was a significant change for the children to go from seeing both parents on each holiday to only seeing one parent on each holiday. In re Marriage of Trapkus, 2022 IL App (3d) 190631.
In re Marriage of Trapkus, 2022 IL App (3d) 190631.pdf
3. Trial court erred when it modified certain restrictions on parental responsibilities post-judgment. In a contentious post-judgment parenting modification matter, at issue was the trial court’s removal of three different provisions of the parties’ parenting agreement: (1) rule requiring mother to provide father with notice of three potential children’s doctor appointments so he could make himself available for one of those times; (2) rule requiring mother and father stay ten feet apart at all children’s activities; and (3) rule prohibiting mother from coming onto father’s property. Mother wished to vacate all of the rules and father opposed, arguing that the rules were necessary and provided a mechanism to decrease the ongoing acrimony. The Appellate Court found that each of these rules were considered a restriction on parental responsibilities which is governed by Section 603.10 of the IMDMA and that mother’s argument that essentially the rules were inconvenient for her is not a changed circumstance warranting an elimination of the restriction. In re Marriage of Trapkus, 2022 IL App (3d) 190631.
In re Marriage of Trapkus, 2022 IL App (3d) 190631.pdf
4. Finding of indirect civil contempt for failure to comply with judgment resulting in commitment of husband to Cook County jail upheld. In a highly litigious case which has now gone up on appeal four times, the trial court found husband in indirect civil contempt of court for his failure to transfer to wife 120,000 shares of stock in a company which his wife had been awarded in the judgment for dissolution of marriage. The purge in the rule to show cause order was that husband could transfer the shares to wife or pay her $10 million which was the approximate value of the shares. The court entered a body attachment order and husband appealed. The Appellate Court affirmed all orders. The Court held that the trial court retains jurisdiction to enforce all orders that it enters; that the trial court has the power to enforce an order to pay money through a contempt proceeding where there has been a willful refusal to obey the court’s order; a contemnor’s defense that he has no ability to comply is unavailable where the contemnor created his own inability to comply; husband’s due process rights were not violated; and the body attachment order was proper. The body attachment order was necessary because the proceeding was conducted remotely via Zoom during the pandemic, and but for that, husband would have been physically present in court and would have been taken into custody when the contempt order was entered. Therefore, there was no error in the entry of the body attachment order so the sheriff could effectuate the contempt order. In re Harnack and Fanady. 2022 IL App (1st) 210143.
In re Marriage of Harnack, 2022 IL App (1st) 210143.pdf