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 vacate judgment for dissolution of marriage and allocation judgment on grounds of judicial recusal denied. In a litigious and procedurally complex case, husband appealed the denial of a motion to vacate a judgment for dissolution of marriage and allocation judgment. During the proceedings, husband filed a motion in the circuit court for substitution of judge for cause (“SOJ”). At issue were several comments the judge had made off the record such as that she was “sick of this case,” “that she should recuse herself,” and that she wanted “every piece of paper on this case out of my chambers.” When the trial court entered the order transferring the case for hearing on the SOJ motion, the box was checked on the form order indicating that an SOJ for cause had been filed, and the box was also checked indicating that the motion was granted. Wife’s counsel filed a motion for clarification because the trial court could not grant the motion against herself. Eventually the SOJ motion was subsequently transferred to another judge for hearing, it was denied, and the original judge was reassigned to the case who presided over the case through entry of judgment. On appeal, husband argued the case was similar to IRMO Peradotti, 2018 IL App (2d) 180247, where a judge’s statements indicating he was recusing himself from a case was in fact a recusal, and all orders entered after that statement were void. The Appellate Court noted, however, that in Peradotti, the judge recused himself, and upon reconsideration, rescinded the recusal. Therefore, application of Peradotti to this case depended upon whether the trial court had actually recused herself. The parties agreed that the trial judge said that she should recuse herself, but the court did not enter any recusal order. The Appellate Court held that the record did not evidence that the trial court had actually recused herself by the order which was entered, and declined to vacate the judgment for dissolution of marriage and allocation judgment and extend Peradotti to this case. The Court also noted that the issue of a judge’s authority to rule on substantive matters after a petition for substitution has been filed, but before the petition is heard, is not yet settled under Illinois law. In re Marriage of Cummings, 2022 IL App. (1st) 211507.
In re Marriage of Cummings, 2022 IL App (1st) 211507.pdf
2. Appointment of receiver post-judgment upheld. This matter involves the fourth appeal in a dissolution of marriage proceeding. At the beginning of the opinion, the Court noted since the commencement of the proceedings, husband filed 12 motions for substitution of judge (11 for cause), 3 motions to reconsider the denials of such motions, 1 motion to vacate the denial of such motion, 1 motion to transfer venue, and 3 interlocutory appeals related to various judges. Husband had also filed a bankruptcy case in the middle of the proceedings. In this instant appeal, wife brought an emergency motion to appoint a receiver due to husband’s failure to comply with the judgment for dissolution of marriage and his history of fraudulently concealing assets, which was granted. The emergency motion was granted, and the receiver was appointed, and the day before the filing of the emergency motion, husband had filed another motion for substitution of judge which was not ruled upon at the time the trial court appointed a receiver. The Appellate Court held that there was no evidence that the motion for substitution of judge was properly before the court on the day the emergency motion was granted, or that the trial court took any action to prevent it from being heard thereafter. Husband appealed the appointment on several grounds, all of which were denied: First, the trial court had subject matter jurisdiction over the dissolution proceedings and therefore had the authority to rule on a such a motion. Second, the trial court had the authority to appoint a receiver in a post-judgment dissolution proceeding even through the IMDMA does not specifically grant such authority since the trial court retains indefinite jurisdiction to enforce the terms of its judgment. Third, the trial court did not abuse its discretion in making such an appointment in this particular case. The Court noted that husband failed to provide the Court with a complete record to evaluate the trial court’s abuse of discretion, so that it was required to assume that it had done so. In re Marriage of Padilla and Kowalski, 2022 IL App (1st) 200815.
Marriage of Padilla 2022 IL App (1st) 200815.pdf
3. Evidentiary hearing required on whether husband lacked income to pay child support at a certain level. At issue in this matter was the language of an agreed order modifying a child support obligation (2018 order) which contained language that the parties agreed in exchange for the modification of support therein and wife’s ability to move to St. Louis, no further reduction or increase in child support would be requested by either party except in certain limited circumstances. The order also contained a “penalty” provision for the calculation of any potential further modified amount in the event husband did seek to further reduce his support obligation. Husband, who was employed as an eye surgeon and earned in excess of $1 million per year, filed an emergency motion to modify support in May of 2020 due to the Covid pandemic and the Executive Order entered by Governor Pritzker eliminating the vast majority of his business, which was elective surgery. Wife opposed arguing that husband had not proven his income had declined and filed a petition for rule to show cause to trigger the penalty provision of the 2018 order. Husband filed a motion to dismiss the petition for rule to show cause arguing that the penalty provision and prohibition on filing for a further reduction were against public policy because they denied him a statutory right to seek a reduction upon a substantial change of circumstances. Husband ultimately withdrew his motion for modification. The trial court denied husband’s motion to dismiss wife’s petition for rule and husband appealed. The Appellate Court affirmed the trial court’s denial of husband’ motion to dismiss because an evidentiary hearing was necessary to determine husband’s actual ability or inability to pay support. While the court can take judicial notice of a global pandemic, the petition raised questions about husband’s actual ability to earn income. Just because a business may have been restricted from performing services during Covid, it could have received government funds in order to pay salaries. An evidentiary hearing was needed to make such a determination. In re Marriage of Jones, 2022 Ill App (5th) 210104.
In re Marriage of Jones, 2021 IL App (5th) 210104.pdf
4. Modified child support amount in agreed order improperly vacated. During a hearing on husband’s motion to dismiss a petition for rule filed by wife (See Flash Point #3), the trial court struck four different provisions of an agreed order entered in 2018 which modified child support by agreement, allowed wife to relocate to St. Louis, Missouri, and prohibited either party from filing for future modifications for support. There was also a “penalty” provision if husband did move to further reduce child support except in limited circumstances in terms of the way child support would be calculated. The issue of whether the “penalty” provision and the provision prohibiting further modifications of support were abandoned on appeal, so those provisions remained stricken from the order. The Appellate Court reversed the trial court with respect to the paragraphs related to the modified support amounts. The Court found that the parties had attempted to negotiate an acceptable support arrangement between themselves, were represented by counsel at the time, and that those provisions should be reinstated as the parties had negotiated and agreed to. The Court also said that the reasoning for vacatur due to a petition relating to a modification of support not being on file at the time the order was entered was unsound and that the trial court may enter an agreed order despite the lack of an underlying petition if the court finds the order is in the best interest of the child. In re Marriage of Jones, 2022 Ill App (5th) 210104.
In re Marriage of Jones, 2021 IL App (5th) 210104.pdf