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;

Finding that marital settlement agreement was valid and enforceable upheld. Husband appealed the trial court’s finding that two marital settlement agreements the parties entered into after their separation were valid and enforceable. In a procedurally complex case, the Fifth District upheld the agreements. The first agreement dealt with issues maintenance, child support, college expenses, allocation of certain children’s expenses, division marital property and liabilities, custody, and parenting time. The second agreement provided that husband would be responsible for the loan associated with wife’s car. In her response to the husband’s petition for dissolution of marriage and her counter-petition for dissolution of marriage, wife alleged the existence of these two agreements and requested that they be enforced. Husband objected to the validity and enforceability of the agreements and the trial court conducted an extensive evidentiary hearing regarding their validity and enforceability. After the hearing, the trial court ruled that the agreements were not the result of coercion or duress and they were not unconscionable. Husband then filed a motion to reopen proofs so that he could present evidence that the original agreement lacked acceptance and consideration; He also argued that the prior hearing was not a hearing on all matters concerning the validity and enforceability of the agreements. After a hearing on whether proofs could be reopened, the trial court denied husband’s motion and he offered an extensive offer of proof. The Court noted that husband had the ability to file a motion for declaratory judgment prior to the evidentiary hearing on the validity of the agreements, and it was clear that both parties understood the full intention of the hearing. Further, husband failed to raise his argument concerning acceptance and consideration in the trial court until four months after the first hearing. Therefore, the trial court did not error in its refusal to reopen proofs for additional evidence. In re Marriage of Stoker, 2021 IL App (5th) 200301.
https://In re Marriage of Stoker, 2021 IL App (5th) 200301.pdf

Denial of motion to modify child support upheld. Husband filed a motion to modify child support due to a substantial change of circumstances since the time at which he entered into a marital settlement agreement. Husband was a pilot for Delta Airlines and agreed to pay $9,600 per month in maintenance and child support. However, he voluntarily took a hiatus from Delta to return to the Air Force to fly fighter jets which resulted in a lower income. A voluntary change of employment resulting in diminished financial status may constitute a substantial change in circumstances if undertaken in good faith. Significant in the analysis is whether the payor’s change was driven by a desire to evade paying support. While the job with the Air Force would allow him to become eligible for retirement with the military sooner, and allow him more time with the children, his hiatus with Delta would end at the point his maintenance was scheduled to end, and he would resume receipt of his full income. The trial court found that husband was unreasonably failing to take advantage of an employment opportunity at Delta in order to evade his support obligations and therefore denied his motion to modify. In re Marriage of Stoker, 2021 IL App (5th) 200301.
https://In re Marriage of Stoker, 2021 IL App (5th) 200301.pdf

Trial court’s determination of date of cohabitation upheld. Husband appealed the trial court’s finding of the date that his ex-wife began cohabitating with her boyfriend, and thus, the date by which maintenance would terminate. After a four day hearing, the trial court noted that the ex-wife and her boyfriend’s relationship had evolved over time and there were concerns about the ex-wife’s credibility as to many of the factual assertions. The evidence showed that the parties had commingled finances, were living together in a home, the ex-wife was gifted a ring that she wore on her left ring finger, and that she had told friend she was engaged. There was also evidence that the relationship was rocky and the couple fought consistently. Additionally, the ex-wife’s boyfriend passed away in an automobile accident prior to trial. The trial court found that maintenance would terminate on the date husband filed his petition to terminate maintenance because pinpointing an exact date was difficult to impossible. The Second District affirmed the trial court noting that demonstrating that the evidence reasonably supports a different outcome does not demonstrate that the trial court’s decision was against the manifest weight of the evidence. In re Marriage of Andres, 2021 IL App (2nd) 191146.
https://In re Marriage of Andres, 2021 IL App (2d) 191146.pdf

Finding of contempt during maintenance termination proceedings upheld. Husband appealed the trial court’s finding that he was indirect civil contempt for failure to make maintenance payments to ex-wife during the pendency of the maintenance termination proceedings due to ex-wife’s alleged cohabitation. Husband argued that his obligation to pay maintenance terminated upon ex-wife’s cohabitation, and therefore he had a legal justification to stop making the payments. The Appellate Court disagreed and upheld the trial court’s finding of indirect civil contempt. An order must be obeyed until such time as it is set aside by the reviewing court. Further, a litigant’s disagreement with the court’s decision does not excuse the litigant from the obligation to obey it. In re Marriage of Andres, 2021 IL App (2nd) 191146.
https://In re Marriage of Andres, 2021 IL App (2d) 191146.pdf

Third District reverses admissibility of hearsay statements by children in plenary order of protection hearing. Wife filed for an order of protection and a petition for supervised parenting time against husband. The trial court granted both petitions and entered a plenary order of protection under the Domestic Violence Act (DVA). Husband appealed the plenary order of protection. Evidence at the hearing included statements made by the children to wife regarding alleged abuse by husband towards the children which the trial court admitted under Section 606.5(c) of the IMDMA which does not require a separate hearing regarding the admissibility of a child’s proposed hearsay statements (unlike the DVA which requires one). The Third District acknowledged the split in the Appellate Districts on this issue. The Third District had previously applied the IMDMA statute in Daria W. v. Bradley W., 317 Ill.App.3d 194 (2000) and husband requested the Court review its decision in light of Arika M., 2019 IL App (4th) 190125 which held that the DVA was the correct statute to apply. The Court reversed and remanded back to the trial court for a reliability hearing consistent with the DVA to determine whether the children’s hearsay statements should be admitted which effectively overrules Daria W. v. Bradley W.
In re Marriage of Portillo and Martinez, 2021 IL App (3d) 200221.
https://In re Marriage of Portillo, 2021 IL App (3d) 200221.pdf