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
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092;

1. Assisted-reproduction statute governs issue of paternity, not the Parentage Act, when pregnancy results from artificial insemination.  In a factually complex case, a same-sex female couple used the sperm of a male friend to conceive a child.  No written legal agreement between the couple and the sperm donor was executed regarding the sperm donor’s intentions for paternal rights, although the evidence presented confirmed that the sperm donor had no desires or intentions to have any parental rights with respect to the child.  During corollary proceedings to adjudicate the minor child as neglected, the GAL filed a petition to declare the non-existence of a parent-child relationship (disestablishment petition) under section 204(a)(1) of the Parentage Act.  The GAL sought to rebut the presumption that the biological mother’s wife was the child’s “parent”  when a DNA test confirmed who the biological father of the child was. The trial court denied the petition and the Appellate Court affirmed.  The issue before the Court was whether the Parentage Act or the assisted-reproduction statute governed the paternity of the child.  Section 201(a)(1) of the Parentage Act presumes that the spouse of the biological mother is the other parent if the parties are married at the time the child is born, but such a presumption can be rebutted with DNA evidence.  However, mother’s wife argued correctly that the parent-child relationship in this case was governed by the assisted-reproduction statute under section 103(d) (750 ILCS 46/103(d)) because assisted reproduction means artificial insemination and does not include any pregnancy achieved through sexual intercourse.  Under section 703(a) (750 ILCS 46/703(a)), any individual who is an “intended parent” is the “legal parent” of any child resulting from assisted reproduction.  Further, if the donor and the intended parents do not have a written agreement in which the donor relinquishes all rights to the resulting child, the court shall determine parentage based on the evidence of the parties’ intent at the time of the donation.  Therefore, the GAL failed to overcome the presumption that the biological mother’s wife was the child’s parent where she was his intended parent under the assisted-reproduction statute.In re J.M., 2023 IL App (4th) 220537.
In re J.M.

2. Trial court’s ruling that sperm donor did not intend to be a “parent” affirmed despite no written agreement between donor and intended parents.  At hearing on the GAL’s disestablishment of paternity petition (see Flash Point #1), the GAL argued that (1) the trial court had no evidence of the sperm donor’s intentions at the time the insemination occurred since therewas no have a written agreement with the intended parents; and (2) the donor’s participation in the court proceedings never showed an intention to not be a father.  The trial disagreed and the Appellate Court affirmed.  The biological mother’s wife made a proffer, which both parties accepted at the hearing, that there was no intention between the three parties that the donor was to be a parents and that the legally married couple’s intention was to have a child of their own.  Further, nothing with respect to the donor’s behavior contradicted the evidence as he submitted to DNA testing only in response to a court order for him to do so and only after he was held in contempt of court for not complying.  After he was found to be the biological father of the child as a result of the DNA test, he surrendered his parental rights in open court.  The trial court correctly determined parentage of the child in question under the assisted-reproduction statute that the donor did not intend to be a parent and the legal parents of the child were the married couple who intended to be parents of the child.  In re J.M., 2023 IL App (4th) 220537.
In re J.M.

3. Post-judgment allocation of stock options pursuant to undisclosed asset provision of MSA upheld.In a post-judgment matter, wife sought the allocation of stock options received by husband during the marriage but not disclosed in the marital settlement agreement (MSA) pursuant to an undisclosed asset provision set forth in the MSA.  During the dissolution proceedings husband activated a dormant LLC entity and entered into a contract with a third party for consulting services to which he was compensated only in the form of stock options.  The option agreement was executed in husband’s name individually, rather than that of the LLC.  By the time judgment was entered, 160 of the options had vested.  Formal discovery was ongoing in the matter at the time settlement discussions ensued but was not completed.  Included in the language of the MSA was that both parties had fully disclosed all of their assets (with an attached balance sheet) and an undisclosed asset provision which provided if there were marital assets discovered and not otherwise disclosed, they would be divided 50/50.  Wife subsequently filed a petition for allocation of the undisclosed options post-judgment and the trial court ordered that all options awarded during the marriage were subject to a 50/50 division.  Husband appealed.  In its opinion, the Appellate Court relied heavily on the fact that the options were in husband’s individual name, not the LLC which was awarded to him in the MSA.  In affirming the trial court, the Court distinguished the case of In re Marriage of Goldsmith, 2011 IL App (1st) 093448 which dealt with a Section 2-1401 motion alleging that husband had concealed assets in an attempt to vacate a judgment.  A Section 2-1401 motion is based on newly discovered evidence and an inquiry of whether due diligence had been exercised at the time the judgment was originally entered by the petitioning party.  By contrast, in this case, due diligence on wife’s part was not required to be shown because she did not seek to re-open judgment.  She merely petitioned the court to enforce the MSA and the undisclosed asset provision.  In re Marriage of Hyman,  2023 IL App (2d) 220041.
In re Marriage of Hyman

4. The barring of pre-settlement negotiation evidence regarding disposition of business entity in post-judgment hearing to allocate undisclosed asset affirmed. In a post-judgment hearing regarding whether an asset was undisclosed in the MSA, husband sought to introduce evidence as to the settlement negotiations leading up to the entry of judgment.  Such settlement negotiations concerned the disposition and allocation of a business entity awarded to husband in the MSA.  However, because the stock options in question at the post-judgment hearing were not owned by the aforementioned business, but were owned by husband outright, the trial court properly barred such settlement negotiations.  The trial court correctly identified the sole issue was whether the options had actually been disclosed.  Discussions about negotiations regarding a business were irrelevant to whether husband had told anyone about stock options he owned outright at the time of entry of judgment. Since the trial court found the options were not disclosed, there was no error in a post-judgment proceeding in the exclusion of evidence relating to pre-judgment discussions.In re Marriage of Hyman,  2023 IL App (2d) 220041.
In re Marriage of Hyman