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.
1. Petition for maintenance allowed despite being filed after deadline set for review period. The Second District reversed a trial court’s order granting husband’s motion to dismiss wife’s petition for maintenance under the principle that adherence to arbitrary filing deadlines, which would bar maintenance for a disable former spouse, was inequitable. The Court noted the case was “particularly extreme” given wife’s severe mental health and substance abuse issues, her inability to support herself, and her level of need. At issue was approximately eight days between the maintenance termination date and the date the petition to extend maintenance was filed. The trial court found the petition was untimely, but it granted wife leave to file a new maintenance petition because reviewable maintenance is “always reviewable” on terms that the court deems just. The trial judge who issued this ruling was then transferred and a successor judge eventually granted husband’s motion to dismiss the petition for maintenance on the grounds that the petition for maintenance was untimely. In addition to citing to the extreme inequity in barring wife from continuing to receive maintenance, the Appellate Court also stated the original judge’s orders should have received more careful consideration and that it is incumbent upon the successor judge to carefully scrutinize the prior proceedings to determine the court’s previous directives. In re Marriage of Watson and Cox, 2022 IL App (2d) 210137.
In re Marriage of Watson, 2022 IL App (2d) 210137.pdf
2. Grandparent visitation denied under grandparent visitation statute when child has subsequently been adopted. Grandmother appealed a trial court’s order granting the adoptive parents’ motion to dismiss petition for grandparent visitation pursuant to Section 602.9 of the IMDMA. The minor child had been adopted by her biological mother’s cousin and her cousin’s husband after the biological mother’s parental rights were terminated and the father never established parentage. The trial court dismissed the grandmother’s petition because she did not satisfy the necessary conditions of Section 602.9(c)(1) to seek grandparent visitation. Grandmother appealed arguing that she satisfied subsection (c)(1)(E): (i) the child is born to parents who are not married to each other; (ii) the parents are not living together; (iii) the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child; and (iv) the parent-child relationship has been legally established. The Court held that subsection (c)(1)(E) has no application when a child has been adopted and that this subsection applies only when a biological parent has unreasonably denied visitation so as to cause harm to the child. The Court also cited constitutional concerns which deem the subsection inapplicable in an adoption context since it is well-settled law that parents have a fundamental right to made decisions regarding the care, custody, and control of their children. In re V.S., 2022 IL App (2d) 210667.
In re V.S., 2022 IL App (2d) 210667.pdf
3. Motion for directed finding upheld on parenting time modification petition. The Appellate Court affirmed the granting of a motion for directed finding made by mother’s counsel at the end of father’s case in chief on the basis that father had not produced sufficient evidence to support a finding of a substantial change in circumstances or that a modification was in the best interest of the children. The only possible substantial change in circumstances was mother’s move into a new residence only 10 miles aways which resulted in a change of school districts. The evidence at the hearing did not show how this change negatively impacted the children or how it prevented the parties from being able to abide by their current allocation judgment. The trial court’s ruling was not against the manifest weight of the evidence based on the evidence presented. The Court vacated the trial court’s imposition of sanctions against father under Section 610.5(f) which permits the trial court to bar a parent from filing a motion to modify for a period of time if the parent has repeatedly filed frivolous motions for modification. In this case, father filed an initial petition as a pro se litigant and then hired counsel who put two amended petitions on file. The sanctions were improper because where an amendment merely attempts to bring the pleading up to date with available evidence, but the relief sought is generally the same, the amendment does not constitute a new cause of action and should not be deemed frivilous. In re Marriage of Vickers, 2022 IL App (5th) 200164.
In re Marriage of Vickers, 2022 IL App (5th) 200164.pdf
4. Trial court reversed for sua sponte modifying parenting schedule after granting a motion for directed finding. After an evidentiary post-judgment hearing on the modification of parenting time filed by father, the trial court granted mother’s motion for a directed finding on the basis that father had not produced sufficient evidence which warranted a substantial change of circumstances or that a modification was in the best interest of the children. Thereafter, the court modified the parenting time which resulted in giving father some additional time under Section 610.(e)(2) of the IMDMA which permits a court to make minor modifications to a parenting plan without the showing of a substantial change in circumstances. The court’s minor modification order resulted in father having an additional 13 days of parenting time. Pursuant to Section 2-1110 of the Illinois Code of Civil Procedure, if a motion for directed finding is granted, a judgment dismissing the action shall be entered. The trial court erred in entering an order which granted 13 additional days of parenting time which was not a minor modification, and deprived mother the right to present any evidence to defend against the request for additional parenting time since her motion for directed finding was granted. In re Marriage of Vickers, 2022 IL App (5th) 200164.
In re Marriage of Vickers, 2022 IL App (5th) 200164.pdf