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
1. Motion to dismiss parentage action for parental responsibilities and parenting time upheld. The First District upheld the trial court’s dismissal of a father’s petition for parental responsibilities and parenting time due to the child being conceived via nonconsensual sexual penetration under Section 622 of the Parentage Act. Due to the fact that the mother was not yet 17 years old at the time the child was conceived, she could not have given consent. Several allegations by both parties existed in support of their respective allegations that each were not “fit”
to be parents; police reports had been filed; and DCFS had conducted an investigation. However, the issue on appeal was solely whether the trial court properly granted the motion to dismiss under Section 622. Father did not dispute the trial court’s finding that there was clear and convincing evidence of an act of nonconsensual sexual penetration due to the age of the mother, but argued that under Section 622, mother had given her consent for parenting time and parental responsibilities due to her actions of allowing him such after the birth of the child. Father argued the statute should be construed as requiring a judicial determination of whether the mother has previously consented at any point to the father’s parenting of the child, but the Appellate Court disagreed. Section 622 of the Parentage Act gives the mother of a child conceived as a result of conduct defined in (a)(1) or (a)(2) of Section 622 complete autonomy to decide the issue of parenting rights. Relying on the dissent in the Fifth District case of Deaver v. Jordan, 2020 IL App (5th) 200084-U, the Court held that because mother filed an affirmative defense to father’s petition, this was enough to establish that she did not give her consent to father’s parenting time or parental responsibilities request. The Court did engage in a lengthy discussion and addressed the potential dangers of allowing a mother to give and then withdraw consent. Colton S. v. Aura C. -K., 2021 IL App (1st) 192257.
2. Trial court reversed for ordering a 50/50 parenting schedule. In a post-judgment parenting time modification proceeding filed by father, the trial court modified the parenting schedule to provide that the parents would have equal parenting time under a 2-2-3 arrangement. Prior to the modification petition, mother had nine overnights and father had five. The trial court did not adopt the GAL’s recommendation which would have given father nine nights and mother five. Father appealed. In its ruling, the Third District focused on the case law which traditionally viewed a 50/50 parenting schedule with caution in cases where the parents had too much animosity
to cooperate. The evidence in this matter indicated the parties had high conflict communication skills and there was questionable judgment at mother’s home regarding third parties present, the child’s bedtime routine and sleeping arrangements, and several other issues. The Appellate Court noted “The record is replete with evidence that the parties have too much animosity to sufficiently cooperate.” The evidence also showed there had been six orders of protection, multiple DCFS investigations, criminal proceedings, and mutual restraining orders. The Court reversed and remanded with direction to provide father with the majority of parenting time. Justice Lytton wrote a lengthy dissenting opinion on the matter. In re Marriage of Virgin, 2021 IL App (3d) 190650.
3. Trial court’s reduction of maintenance from $20,000 per month to zero based upon husband’s retirement reversed and remanded. Husband, who had been employed as a vice president of Caterpillar filed a petition to terminate his maintenance obligation of $20,000 per month after he was advised by his employer that he would no longer be employed by the company. Instead, he chose to retire. The parties had been married for 28 years and had nine children at the time of the divorce, only one of whom was a minor at the time the trial court ruled on the maintenance modification issue. At the time of the parties divorce, they equally divided a $5 million estate and husband earned over $100,000 gross per month. He was ordered to pay to wife $20,000 per month in permanent maintenance as well as 25% of his short term incentive plan. At the time the parties completed their financial affidavits in the post-judgment proceeding, husband had approximately $12 million in assets and his anticipated retirement income was $23,5000 per month. Wife held approximately $4.25 million in assets and her income was approximately $20,000 per month, not including any maintenance. Both parties had extravagant living expenses which was representative of the marital lifestyle. The trial court found that husband’s loss of employment was not in bad faith and constituted a substantial change in circumstances. It reduced his maintenance obligation to zero and required him to submit period job search entries to wife and provided that the issue of maintenance would be reviewed if and when husband secured subsequent employment. Wife appealed and the Appellate Court reversed and remanded. The record was clear that husband had the ability to pay maintenance when his assets were worth $12 million and zero payment order was against the manifest weight of the evidence. His expenses were not such that he did not have the inability to continue to pay maintenance and his lifestyle and investment decisions clearly supported the fact that he had the ability to pay. In re Marriage of Folley, 2021 IL App (3d) 180427.
4. Trial court abused its discretion in reviewing jurisdiction indefinitely in maintenance modification proceeding. In a post-judgment maintenance modification proceeding where the trial court found husband’s retirement a substantial change in circumstances and reduced his maintenance payment to zero, it also ordered that wife could file a petition to review maintenance if and when husband secured subsequent employment. However, the trial court placed no time limitation for review, essentially reserving its jurisdiction over the issue indefinitely. Such order was an abuse of discretion as the trial court should have set a reasonable time for the review. In re Marriage of Folley, 2021 IL App (3d) 180427.