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. Trial court’s finding of non-cohabitation by maintenance recipient reversed. Husband filed to terminate maintenance for the second time based on allegations that wife was involved in a continuing, resident, conjugal relationship with her boyfriend. The trial court denied the petition and the Appellate Court reversed. The Court relied on the fact that wife was involved in a 3 ½ year relationship; the couple spent a significant period of time together on a regular basis; were in a monogamous sexual relationship; traveled together; and spent holidays together. The facts showed that the couple did not share a joint bank account. Wife’s boyfriend traveled a significant period of time for work, considered his permanent residence Texas, and had downloaded some dating apps while they were dating. The couple shared an account at a jewelry store, at the veterinarian, and an auto shop. They had also exchanged rings. There was conflicting evidence on the symbolism of the rings and how often they were worn. The Appellate Court stated: “The exchange of rings is a significant fact to support a finding of a de facto marriage.” The Court disagreed with the trial court not interpreting the rings as a symbol of engagement or marriage. It also stated that wife’s explanation of why she received packages at her home with her boyfriend’s last name (that it was a signal to her that she should not open the package until her boyfriend was with her), “makes zero sense.” As a result, the case was reversed and remanded. In re Marriage of Churchill, 2022 IL App (3d) 210026.
In re Marriage of Churchill, 2022 IL App (3d) 210026.pdf
2. Admission of 604.10(b) expert’s evidence deposition by trial court reversed. In a procedurally complex parentage case, the trial court held a trial on the issue of parental responsibilities and parenting time. During the trial, the court admitted the evidence deposition of the court-appointed 604.10(b) expert over mother’s objection due to her counsel’s inability to appear at such deposition, and therefore, the expert was not subject to cross-examination. The trial court admitted the deposition transcript and the Appellate Court reversed. At issue was the fact that father’s counsel scheduled the deposition five days after notice was sent, which the Court held was unreasonable given the circumstances of the case. The Court was sympathetic to father’s counsel’s attempts to accommodate opposing counsel’s schedule to mutually agree upon a date and time for the deposition, but stated that Rule 201(k) should have been invoked instead of father’s counsel moving forward ex parte with the deposition after failure to agree upon a date and time. The Court also noted that the trial court had the authority to stay the proceedings until a new deposition could be scheduled which would have allowed mother’s counsel to cross-examine the witness. In re Parentage of K.E. 2022 IL App (5th) 210236.
Parentage of K.E. 2022 IL App (5th) 210236.pdf
3. Trial court’s order on parental responsibilities and parenting time reversed and remanded for relying on outdated 604.10(b) report. In a litigious and procedurally complex parentage case, the trial court ordered joint decision-making and an equal parenting time schedule. Mother appealed. The court-appointed 604.10(b) expert report relied upon by the trial court was dated February 8, 2019, and was provided to the trial court on the first day of trial, April 26, 2021. No update was procured. The report was outdated, as it was completed more than two years prior to the first day of trial. Reliance upon the outdated report was error under the statute and rendered the court’s findings and conclusions against the manifest weight of the evidence. In re Parentage of K.E. 2022 IL App (5th) 210236.
Parentage of K.E. 2022 IL App (5th) 210236.pdf
4. Evidentiary hearing necessary to determine question of husband’s due diligence pursuant to Section 2-1401. Husband appealed the trial court’s granting of wife’s motion for summary judgment which was filed against his Section 2-1401 petition alleging that wife had fraudulently concealed an $800,000 condominium during the underlying divorce proceedings. Husband filed his 2-1401 petition four years after prove-up when he learned that wife had bought the property in 2009 in an all-cash transaction through a single member LLC entity which was not disclosed on her Financial Affidavit. The trial court relied on the case of In re Marriage of Goldsmith, 2011 IL App (1st) 093448 when granting wife’s motion for summary judgment and ruling that no material issue of fact existed due to the fact that the parties acknowledged in the marital settlement agreement that they had engaged in informal discovery and had waived their right to formal discovery. The Appellate Court distinguished Goldsmith because the case at bar involved an allegation of fraudulent concealment of assets and the petitioner in Goldsmith had not made such an allegation. In this case, the trial court impermissibly sidestepped the fraudulent concealment allegation in favor of a prohibition against obtaining relief under 2-1401 whenever a party waives formal discovery. The decision to forego formal discovery is not a per se lack of diligence, and an evidentiary hearing was needed to properly evaluate husband’s diligence in the original proceeding within the context of his claim of fraudulent concealment, including whether he knew or should have reasonably known of the property, whether wife intentionally concealed such ownership, and if so, whether husband’s reliance on her representations were reasonable. In re Marriage of Brubaker, 2022 IL App (2d) 200160.
Marriage of Brubaker 2022 IL App (2d) 200160.pdf