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
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 failing to rule on issue of temporary support request as part of petition for order of protection.In an independent action for an order of protection, the trial court issued an emergency order of protection and subsequently a plenary order of protection, but denied petitioner’s request for temporary support from the respondent, with whom she shared a child. The trial court denied the request twice, the first time being because it believed the respondent did not have adequate notice of the proposed support order and the second time because it believed the Domestic Relations Division (Cook County) was the appropriate Division to deal with the support issue. Petitioner appealed and the Appellate Court reversed. The Domestic Violence Act (DVA) lists several remedies that may be included in an order of protection and one of those remedies is temporary child support. Even if the trial court does not customarily rule on child support issues, under the DVA, it has the authority to do so when requested as a remedy along with an order of protection. Further, the court only has the discretion to not decide “contested” support issues, meaning it must decide any uncontested issues of temporary support; and if the issue of temporary support is contested, the trial court must still decide the issue if it is necessary to protect a child from abuse, neglect, removal, concealment or separation. Because the order of protection in this matter was entered by default, and therefore uncontested, the trial court did not have the discretion to decline to rule on the requested remedy. The Appellate Court further stated that whenever a trial court exercises discretion to not rule on a request for temporary child support, it has a mandatory duty under Section 212(b) and (c) of the DVA to reserve the issue and transfer the matter to the appropriate court or division to rule on the issue. And if the court is unable to effectuate a transfer for any reason, it must decide the issue itself. Martinez v. Leon 2024 IL App (1st) 231058.
Martinez v. Leon - Under SCR 102, personal service of respondent effectuated via Zoom court appearance with respect to a claim for temporary child support in connection with a petition for order of protection. In an independent action for a petition for order of protection, the trial court declined to rule on petitioner’s request for temporary child support (see Flash Point #1). The Court analyzed whether the trial court satisfied the notice requirements for a default plenary order of protection that included a request for temporary child support. The Court noted that while most remedies under the DVA may be ordered if the respondent has notice of the underlying petition, temporary child support requires actual notice, which includes personal service or the entering of a general appearance. In this case, the record reflected that the respondent was personally served at the Zoom court date which ultimately set the hearing on the underlying petition. Under Supreme Court Rule 102, a respondent who appears for a remote proceeding and is read the operative terms of the order of protection filed against him/her is deemed to have been personally served with process. Because the respondent appeared on the date that the court set a hearing date on the petition for plenary order of protection, and because he subsequently failed to appear on the following hearing date, the DVA authorized the trial court, by the entry of the default on the petition for plenary order of protection to deal with temporary child support.No additional notice to respondent was required. Martinez v. Leon 2024 IL App (1st) 231058.
Martinez v. Leon