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;

1. Attorneys’ fees ex-wife incurred defending a criminal visitation interference case not recoverable under Sections 508 of the IMDMA. Ex-wife filed a petition for attorneys’ fees under sections 508(a)(1) and 508(a)(6) of the IMDMA after ex-husband filed a complaint with the Elmhurst police department for visitation interference. Ex-wife was charged with unlawful visitation or parenting time interference but found not guilty. She then filed a petition for attorneys’ fees under section 508 of the IMDMA and ex-husband moved to dismiss arguing that criminal prosecution did not fall under Section 508 of the IMDMA. The trial court properly dismissed the petition for fees. Section 508(a)(1) applies only to “proceedings under [the] Act,” which creates various civil causes of action, but does not authorize criminal prosecution for violation of a judgment. With respect to 508(a)(6), which refers to “ancillary litigation (1) incident to or (2) reasonably connected with proceedings under this Act,” the criminal case was brought to punish ex-wife for allegedly violating the judgment and was brought by a party (the State of Illinois) with no involvement in the underlying divorce. It was also brought in a different court, heard by a different judge, and decided upon a higher burden of proof. Therefore, the criminal proceeding was not ancillary to the post-dissolution proceedings which occur under the continuing jurisdiction of the civil court, and therefore no attorneys’ fees are recoverable. In re the Marriage of Miklowicz, 2022 IL App (2d) 210713.
In re Marriage of Miklowicz, 2022 IL App (2d) 210713.pdf

2. Denial of plenary order of protection reversed. Petitioner sought a plenary order of protection and attached an affidavit detailing four instances of abuse with the Respondent. The most recent allegations included her boyfriend allegedly punching her in the back of her head, choking her, and telling her he was going to kill her. At the hearing, Petitioner testified in detail about 4 specific events occurring over the span of 2021 (1 event), 2020 (1 event) and 2015 (2 events). The trial court denied the plenary order of protection finding that Petitioner’s credibility was damaged where her testimony regarding one of the incidents went substantially beyond the allegations in her petition. The court further found that it was equally likely that either petitioner or respondent had started the 2021 physical altercation and therefore, petitioner had failed to carry her burden of proof. The court specifically stated in its mind the operative question was whether the Respondent initiated the most recent physical altercation. The Appellate Court reversed. Section 214(e)(1) of the DVA provides the trial court may deny a remedy only if the Respondent has cause for justifiable use of force. The evidence must show that the use of force was necessary, that the Respondent subjectively believed that a danger existed that required his use of force, and that use of force was objectively reasonable. If any of these elements is negated, a claim of justifiable use of force is also negated. Respondent did not testify that he believed his use of force was necessary, the trial court did not find that his use of force was objectively reasonable, and any threat of force ended before respondent struck petitioner (which was undisputed). Therefore, a plenary order of protection should have been issued. Richardson v. Booker, 2022 IL App (1st) 211055.
Richardson v. Booker, 2022 IL App (1st) 211055.pdf

3. Trial court reversed awarding frozen embryos to husband, the party who did not wish for them to be used by either party in the future. In a heavily litigated case on a number of issues, the trial court ruled that the husband should be awarded the frozen embryos held at a fertility clinic in Connecticut. The parties were both Russian, married in Israel, and later moved to the United States. They settled in upstate New York and had one child who was less than 2 years old when wife petitioned for divorce. The child was born via invitro fertilization because Wife was not able to carry a child to term. Husband testified that he did not wish to have additional children with wife and be financially obligated to support those children. Wife argued that these embryos were her only future ability to have any children. The trial court awarded husband exclusive possession and control of the embryos finding there was no agreement regarding their use and that the process of creating the embryos was done for the benefit of the parties’ marriage. Husband’s desire to donate the embryos to another couple was closer to the parties’ original intent – that a child be born to married parents. The Appellate Court reversed. The Court followed Szafranski I, 2013 IL App (1st) 122975 and Szafranski II, 2015 IL App (1st) 122975-B, the First District cases which adopted the balancing test approach when the contract with the fertility clinic does not dictate the disposition of the embryos in the event of divorce. The Court then applied factors enumerated in a recent Colorado Supreme Court case of Rooks, 2018 CO 85, 429 P.3d 579. The Rooks factors outline factors a court should and should not consider which include:
The intended use of the party seeking to preserve the frozen embryos, with greater weight being placed on the interest of the party seeking to become a genetic parent through implantation of the embryos than that of one who desire to donate the embryos to another couple;
The demonstrated physical ability or inability of the party seeking to implant the embryos to have biological children through other means;
The parties’ original reasons for pursuing IVF, such as to preserve a spouse’s ability to have biological children in the face of fertility-impacting medical treatment, such as chemotherapy;
The hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and
Either spouse’s bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings.
Factors the court should not consider are:
(1) liming family size based on financial and economic distinctions;
(2) the number of a party’s existing children; and
(3) whether a party seeking to use the embryos could instead adopt a child or otherwise parent nonbiological children.

The trial court’s finding that the parties wanted a child to be born only to married parents was against the manifest weight of the evidence, as was the court’s conclusion that wife wanted to have a child out of wedlock. There was no evidentiary support for these conclusions in the record. The trial court was also in error when it concluded that a baby born via surrogacy would have both husband and wife as its presumed parents since the Gestational Surrogacy Act defines “intended parent” as a person who enters into a gestational surrogacy contract pursuant to which he or she shall be the intended parent. Applying the Rooks factors, the Court awarded the embryos to Wife due to her inability to carry a child to term. Her interest in preserving and potentially using the embryos to procreate outweighs husband’s interest in donating them. In re Marriage of Katsap, 2022 IL App (2d) 210706.
In re Marriage of Katsap, 2022 IL App (2d) 210706.pdf

4. Trial court’s denial of an emergency motion for substitution of judge which was made after the trial court presided over several temporary hearings upheld. In a heavily contentious case, the trial court dealt with and ruled on several temporary orders dealing with child support, property division, and allocation of parental responsibilities (referencing a ruling on the selection of day care). All were issues directly related to the merits of a case and part and parcel to the underlying dissolution of marriage claim. The motion for SOJ was properly denied. The Court noted that wife had brought the motion for SOJ after the court ruled against her choice of daycare selection. In re Marriage of Katsap, 2022 IL App (2d) 210706.
In re Marriage of Katsap, 2022 IL App (2d) 210706.pdf

5. Selection of daycare for the minor child upheld. The trial court ordered that the minor child attend daycare at an institution recommended by the GAL, which was not the daycare Wife had argued for at trial. Where the parties cannot agree on an allocation of parental responsibilities, that determination falls to the court. It was clear that Wife wanted the child in a facility that would not share information pertaining to the facility or the child with husband or the GAL. The trial court found that Wife showed “little or no regard for speaking truthfully.” It also found that Wife showed little or no regard for the importance of a father-son relationship; and that she moved under the cover of darkness from New York to Illinois in order to prevent Husband from having a relationship with his son. The record was also clear that the daycare was suggested by the GAL, not the court, as Wife argued. In re Marriage of Katsap, 2022 IL App (2d) 210706.
In re Marriage of Katsap, 2022 IL App (2d) 210706.pdf

6. Child support awarded reversed due to trial court not considering all appropriate factors when deviating downward. Wife appealed the trial court’s child support award which was $100 per month. The guideline calculation was $636 per month based on Husband’s income of $4800 per month and her income of $3000 per month. The trial court’s deviation down to $100 per month was due to the expense Husband would incur to visit the child from New York. The only finding the court made for the deviation downward was the travel costs husband would need to make traveling from New York to Chicago to visit the child. In deviating downward, the court focused solely on husband’s resources and needs but failed to consider the child’s resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved, and the child’s physical and emotional condition and his educational needs. Because the court failed to consider all of the 505(a)(2) factors, the order was vacated and remanded to the trial court for recalculation taking into account all of the relevant factors. In re Marriage of Katsap, 2022 IL App (2d) 210706.
In re Marriage of Katsap, 2022 IL App (2d) 210706.pdf

7. Ketubah held unenforceable due to being unconscionable. Wife appealed the trial court’s ruling that a ketubah entered into between her and husband was unenforceable, specifically the property provision which obligated husband to pay her $1 million out of any property he now owns or may own in the future. The document presented to the trial court was in Hebrew and no certified translation was offered into evidence. The Court noted while the translation was unreliable, not being certified, even if it was, it would still be unenforceable. Wife did not seek to enforce any reasonable terms as pertaining to Jewish law. Instead, she sought to enforce a purported promise to pay her $1 million in a property settlement from any and all property husband may ever own. The marital estate at issue was negligible. The $1 million sum was unconscionable, and therefore, the ketubah was unenforceable. In re Marriage of Katsap, 2022 IL App (2d) 210706.
In re Marriage of Katsap, 2022 IL App (2d) 210706.pdf