2000 SUMMARY OF SIGNIFICANT CASES AND LEGISLATION
By: Gunnar J. Gitlin
The Gitlin Law Firm, Woodstock, Illinois
© 2005
www.gitlinlawfirm.com
Update of Significant Case Law: Note the references to GDRs are to the Gitlin on Divorce Reports. Please call Tim Born at (800) 303-8035, if you would like to receive online access to all the Reports or click here for further ordering information.
Update of Significant Case Law:
| Wildman, Harrold, Allen and Dixon v. Gaylord, 317 Ill.App.3d 590, 251 Ill.Dec. 420, 740 N.E.2d 501 (1st Dist., 1st Div. 2000), GDR 01-19, holding that: | ||
| Attorney's Fees — Fees Sought Against Lawyer's Own Client —
A Primer on Law Applicable to Breach of Contract Actions: In proceedings
in which a lawyer seeks to recover fees from his own client pursuant to
a breach of contract action, the lawyer is not required to present detailed
contemporaneous records in order to sustain his burden of establishing that
the attorney's fees sought are reasonable. The standard of review in such
cases is the manifest weight of the evidence. Furthermore, unlike fee petitions
and claims for quantum meruit fees, in which the trial court makes an independent
valuation of reasonable attorney fees, where an express contract governs
the compensation due an attorney, the hourly rate agreed to by the parties
is the starting point of the court's analysis. Comment: This is a well reasoned case. 508(c) provisions contain similar language the Gaylord. Under 508(c) court considers engagement agreement if drawn correctly and enforces its terms. Issue is “performance under the contract.” Total amount must be “fair compensation” under the contract that were “reasonable and necessary.” |
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| IRMO Shaddle, 317 Ill.App.3d 428, 251 Ill.Dec. 444, 740 N.E.2d 525 (4th Dist. 2000), GDR 01-16, holding that: | ||
| Removal — Consideration of Indirect Benefits: The Fourth District appellate
court rejects the line of reasoning of the Second District appellate court. In doing
so, the Fourth District court ruled that where a custodial parent chooses to leave
the state without the children if the petition for removal is denied, the trial court
must consider whether the children's best interest is to reside out of state with the
custodian or in state with the non-custodian.
Where the trial court denies the mother's first petition for leave to remove (filed in anticipation of her proposed move to Florida), it was improper for the court to penalize the mother when she filed another petition for removal, after the mother actually moved without the children, thus forcing the issue of whether there should be a modification custody. Comment: The Fourth District appellate court rejected the line of reasoning of the Second District appellate court. |
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| IN RE Gattone, 317 Ill.App.3d 346, 251 Ill.Dec. 65, 739 N.E.2d 998 (2d Dist. 2000), GDR 01-11, holding that: | ||
| 1) Maintenance Despite Short Term Marriage and Significantly Disproportionate Property Distribution; 2) Guerra Analysis Favored Determination of Gift to Marriage; 3) 508(b) Fees Must be Reasonable: Despite the fact that marriage was only four years long, trial court did not abuse its discretion by ordering maintenance for six years at $1,000 per year and distributing estate 74%/26% favoring wife, where wife gave up her job in Wisconsin at beginning of the marriage and husband had non-marital estate of $800,000. |
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| In light of four Guerra factors, the trial court did not err in finding that the husband did not overcome the presumption of gift to the marriage when title to real estate placed in joint tenancy. In reviewing size factor (size of gift relative to the entire estate) issue is size at time of divorce but not marriage. (Guerra size was 44%.) Other factors: 2) whether purchase price, improvements, and taxes paid on the property were paid from non-marital funds and who exercised control and management over property; 3) when asset was purchased; and 4) how the parties handled prior financial dealings with each other. |
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| Finally, per Section 508(b), fees must be reasonable and there must be a finding that non-compliance was without compelling cause or justification. |
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| IRMO Carter, 317 Ill.App.3d 546, 251 Ill.Dec. 252, 740 N.E.2d 82 (4th Dist. 2000), GDR 01-6, holding that: | ||
| Dissipation - Marriage's Breakdown May Have Occurred upon Parties'
First Separation in 1992 Instead of on 2nd Separation in 1998: Where
the evidence showed that the wife filed a divorce petition in 1992 which
was later dismissed on purported condition that the husband not incur more
debts and where parties for the most part thereafter lived separate lives
but lived in same household, court erred in finding breakdown of marriage
after second separation in 1999. Court did have authority to order wife
to obtain loan secured by marital residence to address debt situation but
court should use this power very sparingly. (Loss of bargaining power relative
to creditors and rights in bankruptcy proceedings may be implicated). Comment: Carter and Cerven may show a trend following the O'Neill decision to allow dissipation claims where the facts are “close.” |
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| IRMO Drury, 317 Ill.App.3d 201, 251 Ill.Dec. 284, 740 N.E.2d 365 (4th Dist. 2000) GDR 01-1, holding that: | ||
| Maintenance - Permanent Maintenance Where 29 year Marriage with Four Children: Where wife was earning $30,000 and husband was earning $77,000, trial court erred in awarding maintenance for three years. Appellate court opined that case law favored award of permanent maintenance reviewing significant factors: 1) significant disparity in the present and future earning capacities of the parties; 2) Lawrence had the opportunity to continue and advance his career during the marriage because of Phyllis' contributions to the family; (3) Phyllis will not be able to enjoy a standard of living similar to the one she enjoyed during the marriage; 4) she will be forced to sell her limited assets to meet her needs; 5) Lawrence is able to contribute to Phyllis' needs while still meeting his own; and 6) the 29-year marriage was of significant duration. |
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| IRMO Mayhall,311 Ill.App.3d 765, 244 Ill.Dec. 227, 725 N.E.2d 22 (4th Dist., 2000), GDR 00-18, holding that: | ||
| Maintenance: Despite 14 Year Long Marriage, No Error in Awarding Permanent Maintenance: The case stated, "In the present case, we cannot say it was improper to place the burden of proof on Edward to show that a substantial change of circumstances has occurred in order to terminate or reduce maintenance. Tammy has incentive to improve her economic situation even without a limited period of maintenance." Quoted with approval in Drury. |
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| IRMO McGillicuddy,315 Ill.App.3d 939, 249 Ill.Dec. 203, 735 N.E.2d 1028 (3d Dist. 2000), GDR 00-91, holding that: | ||
| Joint Parenting Agreement May Provide Differing Standards from
610 if Residential Parent Moves from Area: Where the joint parenting
agreement provided for reconsideration of the residential parent if he or
she moved out of county with the children, the mother waived the presumption
in favor of her that would otherwise have been implied under IMDMA 610
after she made such a move. Comment: Case was based upon 610(b) (modification two years after custody judgment) and it addressed the burden of proof — clear and convincing evidence standard. Note this portion of the statute also uses the word “necessary” to serve the best interest of the children. |
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| IRMO Sweet,316 Ill.App.3d 101, 249 Ill.Dec. 212, 735 N.E.2d 1037 (2d Dist. 2000), GDR 00-88, holding that: | ||
| Imputing Income in Modification Proceedings Where Payor Starts His Own Business: Where ex-husband in bad faith voluntarily left employment with an exterminating firm and became self-employed by starting his own business, trial court could properly impute income to him commensurate with his ability to earn and increase child support based upon the needs of the children. |
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Update of Significant Statutory Law:
| Percentage Orders of Support (Public Act 91-655), GDR 00-8, www.ilga.gov/legislation/publicacts/pubact91/acts/91-0655.html, providing: |
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| The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor's net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.
This legislation may render irrelevant the Supreme Court's IRMO Mitchell decision which addressed void versus voidable percentage orders of support. There has been no case law addressing whether a percentage order without a finding per Section 505(a)(5) [stating that all or a portion of the net income is uncertain as to source, timing or amount] would render the order voidable. |
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| Right to Evaluator In Custody, Visitation and Removal Proceedings (New Section 604.5 of the IMDMA), P.A. 91-746, SB 1533, www.ilga.gov/legislation/publicacts/pubact91/acts/91-0746.html providing: |
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| Evaluation of child's best interest. (a) In a proceeding for custody, visitation, or removal of a child from Illinois, upon notice and motion made within a reasonable time before trial, the court may order an evaluation concerning the best interest of the child as it relates to custody, visitation, or removal. The motion may be made by a party, a parent, the child's custodian, the attorney for the child, the child's guardian ad litem, or the child's representative. The requested evaluation may be in place of or in addition to an evaluation conducted under subsection (b) of Section 604. The motion shall state the identity of the proposed evaluator and set forth the evaluator's specialty or discipline. The court may refuse to order an evaluation by the proposed evaluator, but in that event, the court may permit the party seeking the evaluation to propose one or more other evaluators. |
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| (b) An order for an evaluation shall fix the time, place, conditions, and scope of the evaluation and shall designate the evaluator. A party or person shall not be required to travel an unreasonable distance for the evaluation. |
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| (c) The person requesting an evaluator shall pay the fee for the evaluation unless otherwise ordered by the court. |
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| (d) Within 21 days after the completion of the evaluation, if the moving party or person intends to call the evaluator as a witness, the evaluator shall prepare and mail or deliver to the attorneys of record duplicate originals of the written evaluation. The evaluation shall set forth the evaluator's findings, the results of all tests administered, and the evaluator's conclusions and recommendations. If the written evaluation is not delivered or mailed to the attorneys within 21 days or within any extensions or modifications granted by the court, the written evaluation and the evaluator's testimony, conclusions, and recommendations may not be received into evidence. |
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| (e) The person calling an evaluator to testify at trial shall disclose the evaluator as an opinion witness in accordance with the Supreme Court Rules. |
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| (f) Subject to compliance with the Supreme Court Rules, nothing in this Section bars a person who did not request the evaluation from calling the evaluator as a witness. In that case, however, that person shall pay the evaluator's fee for testifying unless otherwise ordered by the court. |
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| This is critical legislation affecting custody evaluations and was a
reaction to the IRMO Divelbiss
opinion, Ill.App.3d 198, 241 Ill.Dec. 514, 719 N.E.2d 375 (2d Dist. 1999),
GDR
99-99. In Divelbiss, the mother
“lost” custody to the father. While the mothers motion for a
Supreme Court Rule 215 examination was granted the trial court stated
in pertinent part: It is a mental examination of your client, and what
is relevant for the purpose of the examination is to determine his mental
status as it relates to his ability to parent or be the custodial parent.
This is not a custody evaluation. This isnt your expert sitting down and
doing the same type of evaluation that [the court appointed conciliator]
has done. The appellate court commented that the mother did not file a
motion for an investigation and report concerning custodial arrangements
for the child pursuant to Section 605 of the IMDMA. Accordingly, the Divelbiss
court found that there was no error by the trial court. It is also important
because it specifically allows appointment of such an expert in removal
proceedings. |
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| Special and Limited Appearances (Public Act 91-145), effective January 1, 2000, GDR 00-10 www.ilga.gov/legislation/publicacts/pubact91/acts/91-0145.html, providing that: |
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| Objections to jurisdiction over the person. (a) Prior to the filing of any other pleading or motion other than a motion for an extension of time to answer or otherwise appear, a party may object to the courts jurisdiction over the party's person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process. Such a motion may be made singly or included with others in a combined motion, but the parts of a combined motion must be identified in the manner described in Section 2-619.1. Unless the facts that constitute the basis for the objection are apparent from papers already on file in the case, the motion must be supported by an affidavit setting forth those facts. |
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| (a-5) If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all objections to the court's jurisdiction over the party's person. |
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| (b) In disposing of a motion objecting to the court's jurisdiction over the person of the objecting party, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon contested issues of fact. The court shall enter an appropriate order sustaining or overruling the objection. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof. A decision adverse to the objector does not preclude the objector from making any motion or defense which he or she might otherwise have made. |
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| (c) Error in ruling against the objecting party on the objection is waived by the partys taking part in further proceedings unless the objection is on the ground that the party is not amenable to process issued by a court of this State. |
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G:\DOCS\ARTICLES\Summaries\summary 2000.doc
April 25, 2003