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
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
- Trial court reversed for finding that petition for adult disabled child support was untimely.In a post-judgment matter, mother petitioned for adult disabled child support for a child who was a 21- year old high school graduate who had autism and was still living with her. Mother alleged in her petition that she was incapable of ever living independently and that the child required long term financial support due to her disabilities that dated back to at least the age of 6, when the autism diagnosis occurred. The trial court denied the petition as untimely due to the fact that the child was already emancipated at the time mother filed her petition and mother appealed. The Appellate Court reversed. The petition was not untimely on its face just because the child had turned 18 and graduated from high school since the autism diagnosis had occurred when the child was a minor. Pursuant to Section 513.5(a), the disability must have arisen when the child was eligible for support. In re Marriage of Moriarty, 2024 IL App (1st) 230270.
In re Marriage of Moriarty - Adult disabled child support awarded after child reaches the age of majority. In a case of first impression, the First District held that a 21-year old adult who had graduated from high school, but was still living with her mother due to an autism diagnosis, was eligible for adult disabled support. (See Flash Point #1). Pursuant to Section 513.5, a disabled individual means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such an impairment. 513.5(a) limits awards to situations as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. However,arrival at majority and emancipation are two distinct life events and have two distinct meanings. The record indicated that the child was not otherwise emancipated because despite being of majority age and high school graduate with a part-time job, she was not mentally able to take care of herself and has not left the protection and influence of her mother’s home. She had not demonstrated the ability to manage her own affairs or to live partially independently or wholly independently.In re Marriage of Moriarty, 2024 IL App (1st) 230270.
In re Marriage of Moriarty - First District issues revised opinion: In re Marriage of Tener, 2024 IL App (1st) 220890.In February, we reported on the aforementioned case which concerned an interlocutory appeal where a guardian ad litem (GAL) was appointed by the divorce court for wife in the dissolution proceedings. At issue were interim attorneys’ fees which the trial court awarded to the GAL. The Court issued a revised opinion on April 5, 2024,revising its original opinion. Wife had argued that the court order appointing the GAL was void and therefore the trial court had no authority to award interim attorneys’ fees. However, because wife did not attack the trial court’s personal or subject matter jurisdiction, she was really arguing that the appointment did not comport with statutory authority. Alleged lack of statutory authority does not deprive the trial court of jurisdiction, resulting in a void order. Additionally, wife did not appeal the actual appointment order, which did not enable the Court to determine whether that order was a step in the procedural progression leading to the appealed fee awards. In its revised opinion, the Court removed several paragraphs addressing whether the trial court had inherent authority to appoint the GAL in the dissolution proceeding for a party. It should be noted that the removed language did not change the resulting opinion. In re Marriage of Tener, 2024 IL App (1st) 220890. The revised opinion can be read here:
In re Marriage of Tener and Walter