2002 SUMMARY OF SIGNIFICANT CASES
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:
| Lipscome v. Wells, 326 Ill. App. 3d 760, 260 Ill. Dec. 374, 761 N.E.2d 218 (1st Dist. 2001) | ||
| Tolling the Statute of Limitations in Parentage Cases: It is a fraudulent
act for a mother to falsely state in her complaint for paternity that the
defendant is the father. This fraud will toll the application of the two
year limitation of section 2-1401 of the Code of Civil Procedure. Section
7(b-5) of the Illinois Parentage Act of 1984 allows for an action to declare
the nonexistence of paternity subsequent to an adjudication of paternity
if as a result of a DNA test the man is not the father of the child, however,
there must be DNA testing before such petition may be filed. The statute
does not force the mother to have a DNA test. |
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| IRMO Turrell, 335 Ill. App. 3d 297, 269 Ill. Dec. 633, 781 N.E.2d 430 (2d Dist. 2002) | ||
| Maintenance Modification and the Burden of Proof: The party
petitioning for modification of maintenance has the burden of proof. The
trial court abused its discretion on the obligor's petition to reduce maintenance
in allowing a reduction based upon its finding that the mother failed to
offer evidence to support her claim that her Lyme's disease prohibited her
from being employed. The appellate court held that the obligor alone bore
the burden of showing that a substantial change in circumstances justified
reducing maintenance. The recipient did not have the burden to prove she
was entitled to continued maintenance. |
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| Debilio v. Rogers, 337 Ill. App. 3d 614, 272 Ill. Dec. 9, 786 N.E.2d 548 (3d Dist. 2002) | ||
| Parentage Removal Case -- Reasons for Modifying Visitation Must
be Consistent with Best Interest of the Children: When an unmarried
parent seeks to remove a non-marital child from Illinois, under Section
16 of the Illinois Parentage Act, a court must first decide whether the
removal of the child out of Illinois is in the child's best interest. If
so, then a modification of visitation can be sought to permit the custodial
parent to remove the child. If the custodial parent removes the child before
a modification order is entered, the custodial parent risks contempt proceedings
by not complying with visitation orders previously entered by the court.
Melton II. Here, the trial court erred when it determined that a
modification of visitation was appropriate because the mother and child
were moving to Florida, not because the move was in the best interest of
the child. The appellate court remanded to the trial court to determine
if the move was in the best interest of the child before entering a modification
of visitation for the father. |
||
| IRMO Cutler, 334 Ill. App. 3d 731, 268 Ill. Dec. 496, 778 N.E.2d 762 (5th Dist. 2002) | ||
| Business Valuation -- Improper Use of Income Approach Because of
Covenant Not to Compete: When the husband had a Geico insurance
agency under a contract with a one-year non-competition clause, and husband
would have no renewals if the contract was terminated, the trial court erred
by valuing the business without regard to these factors that would significantly
affect the sale. Furthermore, the trial court cannot simply select a value
between the values opined by the two experts when one of the appraisals
is not based upon proper evidence. |
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| IRMO Menken, 334 Ill. App. 3d 531, 268 Ill. Dec. 295, 778 N.E.2d 281 (2d Dist. 2002) | ||
| No Authority of Trial Court to Order Signature of QILDRO for Pre-QILDRO
Legislation Participant: The trial court lacks the authority to
order a state governmental plan participant to execute a consent for issuance
of a QILDRO but the trial court has authority to enter a “triangular”
type order, that is, one in which the participant is ordered to pay over
the appropriate portion of his or her pension funds if and when received. |
||
| IRMO Ackerley, 333 Ill.App.3d 382, 266 Ill.Dec. 973, 775 N.E.2d 1045 (2d Dist. 2002) | ||
| A Primer on Support Modification and Proper Determination of Net
Income in Cases where Issue is Bonus, How to Handle FICA, etc.:
Ackerley reads as a primer on the law as to calculation of support
in complex cases. It holds: 1) Monies received in excess of base pay but
not explicitly characterized as bonus funds was in actuality a bonus.
2) Once high income child support obligor has reached his maximum FICA
obligation, he cannot continue deducting the percentage amount applicable
for FICA. 3) Even if the amount of child support ordered to be paid is
90% of the mother's total budget, (with one child and live-in boyfriend
contributing $530 per month) a child support increase to $3,000 per month
was affirmed on the basis of the standard of living the child would have
if the parents had remained married. |
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| IRMO Worrall, 334 Ill. App. 3d 550, 268 Ill. Dec. 411, 778 N.E.2d 397 (2d Dist. 2002) | ||
| Per Diem Expenses May be Deducted in Determining Support if Payor
Maintains Burden of Proof that Reimbursements Not for Economic Gain:
In determining that the father's net income per Section 505 did not include
certain per diem expenses the trial court erred. The father was a
truck driver whose compensation consisted of his base pay plus an amount
designated as per diem, which was designed to cover expenses for
meals and lodging while on the road. Worrall stated, “It is important
to recognize that Crossland did not definitively reach the question
of whether amounts designated as “per diem” should be included
in income for purposes of calculating child support. It was unnecessary
to do so because no part of the child support obligor's pay was designated
as per diem. Viewing Crossland as a whole, the limited holding
of the case is that a parent owing support may not reduce his or her net
income by an amount representing per diem if his or her employer
does not designate any portion of his pay as “per diem.”
The appellate court concluded, “We therefore conclude that per diem
allowances for travel expenses generally constitute income for the purpose
of calculating child support. This income, however, is subject to reduction
to the extent that the child support payer can prove that the per diem was
used for actual travel expenses and not for his or her economic gain.” |
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| IRMO Crook, 334 Ill. App. 3d 377, 268 Ill. Dec. 323, 778 N.E.2d 309 (4th Dist. 2002) | ||
| Consideration of Social Security Benefits for Purposes of Property
Distribution -- New Law in Illinois: The trial court abuses its
discretion when it fails to consider one party's current or anticipated
social security benefits when dividing marital property. The appellate court
stated, “Upon remand, the court must consider the fact petitioner
expects to receive a substantial social security benefit and fashion a division
of respondent's pension benefits that will place each party in similar
financial situations.” This case goes against prior Illinois case law,
specifically, IRMO Hawkins (1987). |
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| IRMO Webb, 333 Ill. App. 3d 1104,267 Ill. Dec. 640, 777 N.E.2d 443 (2nd Dist. 2002) | ||
| Voluntary Dismissals and Discovery Misconduct: The trial
court must determine if petitioner engaged in discovery misconduct before
assessing expenses under Rule 219(e) against petitioner who moved to voluntarily
dismiss divorce. |
||
| Melton II (Harbour v. Melton), 333 Ill. App. 3d 124, 266 Ill. Dec. 729, 775 N.E.2d 291 (4th Dist. 2002) | ||
| Parentage Removal -- Custodian Cannot be Held in Contempt Unless
There is a Disruption to the Visitation Schedule: Custodian of non-marital
child may remove child from Illinois without court order under the IMDMA
removal statute, Section 609. Finding child's father in contempt for removing
the child without court order was reversed. The appellate court commented,
“In the case at bar, although the petition for rule to show cause recited
that visitation was adversely affected, no evidence of that was presented
and no argument was made that removal of the child disrupted visitation
in violation of the trial court's custody order. That argument has also
not been made in this court.” Also significant is the appellate court's
noting that the original custody order did not require the custodial parent
to seek permission of the court prior to removal. |
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| IRMO Seitzinger, 333 Ill. App. 3d 103, 266 Ill. Dec. 720, 775 N.E.2d 282 (4th Dist., 2002) | ||
| Joint Custody Award (Decision Making) Affirmed on Appeal Despite Mother's
Contention that Parties Could not Cooperate. Trial court improperly conditioned
award of primary physical custody on mother's remaining in two specified
counties.: First, Seitzinger is an important case addressing sole
versus joint custody. It has been added to my spreadsheet reviewing the
issue of joint versus sole custody awards. Second, an important aspect of the case is the restriction on the custodial parent's ability to move with the children. The appellate court stated, “A trial court has broad powers in custody matters, including conditioning custody upon a custodian living within a reasonable distance from the noncustodial parent so visitation may be facilitated.” [Citing Manuele — the other case which upheld a joint custody award. In Manuele the appellate court found that the limitation to one county was unreasonably restrictive.] The appellate court stated:, “Here, the restriction ... is arbitrary if the purpose of the restriction is ease of visitation. Geographical location is not, per se, determinative of ease of visitation. Ease of transportation may be just as important. Other counties located near Roger's home in Ashland might prove just as easy to get to as would a location in the farthest corner of Sangamon or Cass County. More important, however, the trial court erroneously conditioned not only Kimberly's primary physical custody of Sabrina on her remaining in Sangamon or Cass County but also the continuation of joint custody. ... The custody status of a minor child should not change automatically with the removal of a parent from his or her present location. Instead, the best interest of the child should be considered when a child of custody is anticipated.” Accordingly, the appellate court reversed the trial court's order automatically changing the primary physical custody as well as terminating joint custody since neither provision allowed the trial court to consider the child's best interest. Third, the appellate court found that the trial court erred when it ordered the custodial parent to provide insurance. The appellate court commented that under Section 505.2 of the IMDMA, the noncustodial parent is required to provide a contribution to the cost and that therefore the trial court should have ordered the father to contribute half the cost of health insurance of the child. |
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| Melton II (Harbour v. Melton), 333 Ill. App. 3d 124, 266 Ill. Dec. 729, 775 N.E.2d 291 (4th Dist. 2002) | ||
| Appellate Court Parentage/Removal Case Suggests the Difficult Issues
Which Will Likely be Addressed in Future Case Law: This parentage
removal case contains a good review of case law including S.L., Adams,
Melton, R.M.F, M.M.W. One argument made by the non-custodial parent
was the argument that it would be improper for her to have to meet the statutory
burden set forth in Section 610(a) to modify custody within two years. The
appellate court commented, “Section 16 of the Illinois Parentage Act
states that modification of custody or visitation ‘shall be in accordance
with the relevant factors specified' in the Marriage Act. Applying the narrow
statutory construction analysis previously utilized in these types of cases,
the “factors” are set out in Section 610(b) of the Marriage Act.
We do not decide that question.” The appellate court commented that
there was no issue as to several items including whether the removal endangered
the child's mental or emotional health or whether Section 610(a) was incorporated
within the Parentage Act. The non-custodial mother raised the issue of discrimination
toward illegitimate children. However, she failed to serve notice on the
Attorney General of her intent to raise an issue of the constitutionality
of a statute as required by SCR 19. It appears that if the court were to
rule that Section 610(a) to custody modification proceedings occasioned
by the removal would be applicable, that the prior case law as to constitutionality
may be in error. RMF had suggested that illegitimate children are
afforded the same procedural rights as legitimate children even though there
was a different route traveled to access those rights. I had previously
commented that this is not the case if Section 610(a) would apply to custody
modification proceedings brought within two years. |
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| O'Brien v. Scovil, 332 Ill. App. 3d 1088, 266 Ill. Dec. 360, 774 N.E.2d 466 (3rd Dist. 2002) | ||
| Malpractice Action Barred by Statute of Repose: Malpractice
action against a lawyer is barred by statute of repose, despite situation
where there likely would have been malpractice due to lawyer's failure to
have QDRO entered and due to subsequent death of the participant. The issue
re the application of the statute of repose as the date of the termination
of the lawyer's employment. |
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| IRMO Collingbourne, 332 Ill. App. 3d 665, 266 Ill. Dec. 342, 774 N.E.2d 448 (2d Dist. 2002) | ||
| Second District Removal Case Reaffirms Rejection of Indirect Benefits
Line of Cases: The Second Appellate court ruled that it is insufficient
to focus only on the improvement in the custodial parent's life because
this is significant only to the extent that it increases and furthers the
child's quality of life. “While respondent presented evidence that
she would enjoy an increased standard of living, live in a larger home,
and earn a greater income working for her prospective husband's company,
an increased standard of living will occur in almost every case of remarriage
as we stated in Berk.” The appellate court reversed the trial
court's granting leave to remove after focusing on the effect on the father's
visitation rights. What was also noteworthy was the offer was for the same
amount of parenting time that the father had exercised but the father would
be precluded from spending the day time hours with the child during much
of his parenting time because of his work schedule. The appellate court
also commented, “[T]he visitation schedule set forth by the trial court
will require Tyler to travel by air 9 to 10 times per year for visitation,
which is not only time consuming but burdensome for adults and children
alike.” Note: Case has now been reversed by the Illinois' Supreme Court as I had anticipated. Please see my Q&A regarding removal, my updated article regarding removal, etc. |
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| IRMO Keip, 332 Ill. App. 3d 876, 266 Ill. Dec. 157, 773 N.E.2d 1227 (5th Dist. 2002) | ||
| Permanent Maintenance Award Should Have Been Ordered in 22 Year
Marriage Case with Significant Income Disparity and Other Factors Favoring
Long Term Award: In 22 year marriage case in which there were four
children and two minor children with the husband earning a gross income
of $98,000 and the wife earning a net income of $14,568, it was error to
award maintenance for one year with no review. The appellate court required
maintenance to be in the amount of 10% of the husband's net income (doubling
the amount) and requiring the maintenance award to be permanent. The marital
estate has a negative net worth. |
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| IRMO Roney, 332 Ill. App. 3d 824, 265 Ill. Dec. 851, 773 N.E.2d 213 (4th Dist. 2002) | ||
| Turning Over Evidence of Eavesdropping: The act of turning
over tape recorded telephone conversations obtained by eavesdropping in
violation of criminal law constitutes a incriminating testimonial communication
protected by the fifth amendment privilege. |
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| IRMO Carrier, 332 Ill. App. 3d 654 265 Ill. Dec. 893, 773 N.E.2d 657 (2d Dist. 2002) | ||
| Statutory Interest on Order Requiring Payment Rather Than a Money Judgment:
Mandatory statutory interest on judgments, per Section 2-1303 of the Code
of Civil Procedure, does not apply to awards in divorce proceedings, and
the fact that the award was pursuant to a marital settlement agreement incorporated
in the judgment does not alter this rule. In divorce proceedings interest
is discretionary. Wife, by divorce judgment (MSA) was awarded an interest in husband's IRA. After the judgment wife initially undertook the transfer of the sum awarded to her, but thereafter it became husband's responsibility. It was not an abuse of discretion not to award wife statutory interest for the time she undertook responsibility for the transfer. Statutory interest is addressed in two sections of Gitlin on Divorce: Section 8-19 and Section 16-6. A breakdown of the post-Finley case law as to whether statutory interest is mandatory follows: |
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| Carrier: Second District, 2002: Statutory interest is not mandatory
citing with approval the Kaufman decision. Steinberg: 1st District, 1998: Statutory interest was permissive in this child support case. Case relied upon Kaufman which in turn relied upon Finley. GDR 99-99. Kaufman: 1st District, 1998: Maintenance arrearage not subject to mandatory interest. GDR 93-108. Sloan: Second District, 1993. Sloan gave a narrow application to Finley and ruled that statutory interest was mandatory. Ahlness, 229 Ill.App.3d 761, 171 Ill.Dec. 244, 593 N.E.2d 1064 (4th Dist. 1992). GDR 92-78. (Not cited in Gitlin on Divorce: A Guide to Illinois Matrimonial Law.) Ordering interest on an award of money, as part of the property distribution in a divorce, lies within the sound discretion of the trial judge. The statutory interest on judgments provided by the Code of Civil Procedure, is not controlling. GDR 92-78. Scafuri: 2nd Dist. 1990: Interest at 1% over prime where wife to receive $375,000 in installments over a ten-year period, as part of property distribution, reversed. The appellate court held this was a judgment and therefore only the statutory interest rate of 9% could accrue. GDR 91-13. Morris: 1st District, 1989: Under order requiring husband to pay wife a lump sum of maintenance and a lump sum of money in installments on account of property settlement, the ordering of statutory interest was mandatory. GDR 89-86. |
| Partipilo v. Partipilo, 331 Ill. App. 3d 394, 264 Ill. Dec. 440, 770 N.E.2d 1136 (1st Dist., 6th Div. 2002), GDR 02-56 | ||
| Substitution of Judge — Ruling on Substantial Issue:
A judge's ruling denying a party's motion to stay the divorce proceedings
until collateral actions between the husband and wife are resolved is a
substantial ruling and it was not error for the judge to deny motion for
substitution of judge as a matter of right, after the judge ruled on a motion
to stay the divorce proceedings. |
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| Macaluso v. Macaluso, 334 Ill. App. 3d 1043, 268 Ill. Dec. 636, 779 N.E.2d 250 (3rd Dist. 2002), GDR 02-55 | ||
| Timing Re Contribution Hearing in Post-Judgment Cases: Petition for contribution
fees in post-judgment proceedings need not be filed before final judgment
is entered, and such a petition may be filed at any time before the trial
court loses jurisdiction. Comment: The Second District Konchar opinion held that in post-divorce judgment proceedings a petition for contribution fees must be filed before the entry of the final judgment. Case is contrary to Konchar and reasons that the timing requirements of the contribution statute do not apply to post-divorce matters because Section 503(j)'s references to "the final hearing on all other issues between the parties,” is specific to the bifurcated hearing required in pre-decree proceedings. |
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| IRMO Lindsey-Robinson, 331 Ill.App.3d 261, 265 Ill.Dec. 17, 771 N.E.2d 976 (1st Dist., 1st Div. 2002), GDR 02-54 | ||
|
Waiver of Right to Object to Timing Re Contribution Action: Section 503(j)
of the IMDMA requires petitions for contribution by the other side to
be filed and heard after proofs have closed and before judgment is entered.
The statutory timing requirement, however, may be waived by lack of objection
and, at the hearing, by arguing to the merits of the fee petition. |
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| IRMO Ludwinski, 329 Ill.App.3d 1149, 64 Ill. Dec. 257, 769 N.E.2d 1094, 264 Ill.Dec. 257 (4th Dist 2002), GDR 02-50 | ||
| Electronic Communications for Visitation: The trial court's
visitation order, which was entered on remand for the purpose of setting
a visitation schedule, and which visitation order contained provisions for
telephone, tape recorder, e-mail communications, etc. by the children with
the noncustodial parent, was in keeping with the directions on remand. |
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| IRMO Means, 329 Ill.App.3d 392, 264 Ill.Dec. 797, 771 N.E.2d 501 (4th Dist. 2002) GDR 02-48 | ||
| Intrastate Removal of the Children Not Affected by JPA: A joint parenting
agreement which requires the parties to jointly decide what major issues
concerning the children's “education, religious training and extraordinary
healthcare” does not prohibit the custodian from removing the child
intrastate. COMMENT. IRMO Findlay, 296 Ill.App.3d 656, 231 Ill.Dec. 31, 695 N.E.2d 548 (2d Dist. 1998), GDR 98-65: The JPA stated that the parties “will jointly decide matters of substance regarding the children, including, without limitation intended, important questions of education, religion and elective medical care.” The appellate court in Findlay ruled that the language of the JPA was ambiguous as to whether a proposed move with the children would be construed as a “matter of substance regarding the children.” There was, however, no such broad language in Means. IRMO Wycoff, 266 Ill.App.3d 408, 203 Ill.Dec. 338, 639 N.E.2d 897 (4th Dist. 1994), GDR 94-10: This was relied on by the mother in Means. It ruled: “It is not necessary for a custodial parent, or a parent with the primary physical custody of a child, to obtain permission from a court before moving to another location in Illinois.” IRMO Yndestad opinion, 232 Ill.App.3d 1, 173 Ill.Dec. 507, 597 N.E.2d 215 (2d Dist. 1992), GDR 92-94: The JPA stated that the mother, the primary custodian, would continue to reside within a fifty mile radius from her present residence. Following the mother's petition to remove the child from Illinois, the appellate court concluded that “petitions to remove a child from Illinois are governed by section 609 * * * despite any provisions in a joint parenting agreement purporting to limit the right of removal.” IRMO Manuele, 107 Ill.App.3d 1090, 63 Ill.Dec. 760, 438 N.E.2d 691 (4th Dist. 1982): Means cited this case for the proposition that JPAs may impose reasonable limitations upon the custodian's choice of residences. In Manuele the trial court, in order to assure the father's visitation, required the mother to continue to reside in Sangamon County. The Maneule opinion ruled that protection of the father's rights of visitation would justify a reasonable residential restriction as a condition of the mother receiving custody of the children. However, Manuele also ruled that the limitations of the residence to Sangamon County was unreasonably restrictive and instructed the trial court, on remand, to reconsider this matter. |
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| IRMO Ricketts, 329 Ill.App.3d 173, 263 Ill.Dec. 753, 768 N.E.2d 834 (2d Dist. filed April 25, 2002), GDR 02-47 | ||
| Joint Custody Modification When Cross-Petitions for Sole Custody: When
each party to a joint parenting agreement files a modification petition
seeking sole custody, the parties, in effect, agree to a termination of
the joint custody and per section 610 of the IMDMA, the court may make the
custody modification on the basis of what is in the child's best interest
rather than a proof of changed circumstances by clear and convincing evidence,
as is usually required in custody modification cases. Failure to Allow Visitation — Alienated Child: A child custody transfer was warranted where evidence established the mother failed to foster a close and continuing relationship between the child and the father by repeatedly interfering with the father's visitation schedule; the mother did not facilitate a calm and positive environment for the child at the point of transfer for visitation; and the mother made derogatory remarks concerning the father and his family in the child's presence. COMMENT BY GUNNAR J. GITLIN: There is an excellent article in the ABA Journal addressing Dr. Richard Gardner's “parental alienation syndrome” theory. Vol 35, No. 3, Fall 2001, Carol S. Bruch. Dr. Richard Gardner is an excellent self-promoter who has advanced the theory that often high conflict custody disputes where a child wants to have little or nothing to do with the other parent or cases of sexual abuse allegations brought during divorce proceedings, are the result of what he coiled “parental alienation syndrome.” The article is critical of many of Dr. Gardner's conclusions. One of his conclusions is that the child is generally better off with the non-alienating parent, even where the other parent has been the primary caretaker of the child. More recently, mental health professionals focus is on the child and not necessarily the actions of the other parent. Thus, in such cases, mental health professionals will use the term “the alienated child.” |
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| IRMO Drag, 326 Ill.App.3d 1051, 261 Ill.Dec., 762 N.E.2d 1111 184 (3d Dist. 2002), GDR 02-46 | ||
| Pre-UPAA Premarital Agreements: | ||
| Conflict of Interest: When wife-to-be accepted from her fiancee names
of three lawyers and chose one, who disclosed that he had previously represented
the husband in his divorce, the wife-to-be's oral waiver of attorney-client
privilege did not invalidate the premarital agreement because of conflict
of interest. Unconscionable Agreement: An unconscionable agreement is one which no reasonable person would make and no honest person would accept. When husband made full disclosure of assets, including his worth of $6 million, and wife received in the divorce an award of $1,400 per month for six years, plus $150,000 in lump sum an account of property and $51,000 as half of the tax return, the agreement was no unconscionable. Disproportionality Test: Parties engaged to be married, before signing a premarital agreement, are in a confidential relationship. Where provisions for maintenance are disproportionate to the value of the other spouse's assets, there rises a presumption of concealment, overcome by a showing of total disclosure. |
| Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002), GDR 02-45 | ||
| Visitation by Grandparents: IMDMA Sections 607(b)(1) and
607(b)(3) regarding “grandparent visitation” are facially unconstitutional
because they unreasonably interfere with parents' fundamental liberty interests
to raise the children. |
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| Donaldson v. Central Illinois Public Service Company, 199 Ill. 2d 63, 262 Ill. Dec. 854 , 767 N.E.2d 314 (2002) Based on Illinois Supreme Court, (April 2002) | ||
| Illinois Supreme Court Rejects Frye Plus Standard: The holding of the Donaldson case was that under the circumstances of the case it was harmless error not to hold a separate Frye hearing as to the testimony of the Plaintiff's experts. The case stated: | ||
| Illinois law is unequivocal: the exclusive test for the admission of expert
testimony is governed by the standard first expressed in Frye. (Citations
omitted.) The Frye standard, commonly called the “general acceptance”
test, dictates that scientific evidence is only admissible at trial if the
methodology or scientific principle upon which the opinion is based is “sufficiently
established to have gained general acceptance in the particular field to
which it belongs.” Frye, 293 F. At 1014. |
| Focus on Methodology — Not Conclusions: Donaldson stated that
with “general acceptance” the focus is on the underlying methodology
used to generate the conclusion, “If the underlying method used to
generate an expert's opinion are reasonably relied upon by the experts in
the field, the fact finder may consider the opinion — despite the novelty
of the conclusion rendered by the expert.” (Citations omitted). General Acceptance Does not Mean Accepted by Majority of the Experts: “Simply stated, general acceptance does not require that the methodology be accepted by unanimity, consensus or even a majority of experts. A technique, however, is not “generally accepted” if it is experimental or of dubious validity. Thus, the Frye rule is meant to exclude methods new to science that undeservedly create a perception of certainty when the basis for the evidence or opinion is actually invalid.” The Frye test therefore applies only where the scientific principle, technique or test offered to support the conclusion is “new” or “novel.” The case then states, “Generally, however, a scientific technique is ‘new' or ‘novel' it is ‘original or striking' or does not resemble something formerly known or used.” (Citing Webster's Third New International Dictionary.) |
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| IRMO Stopher, 328 Ill.App.3d 1037, 263 Ill.Dec. 199, 767 N.E.2d 925 (4th Dist. 2002) | ||
| Mental and Physical Health of Parties to Custody Proceedings — Low
IQ of One Parent vs. Emotional Maturity of Other Parent: Award of custody
to a mother who had an IQ of 67 (a reading level of second grande, etc.)
was affirmed when evidence showed that she could care for the child but
the father was compulsive and impatient. Trial court properly awarded custody
to mother despite the recommendation of the custody evaluator that custody
should be awarded to the father due to his opinion that because of the mother's
cognitive limitations, she would be unable to meet the child's developmental
needs as the son grew older. |
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| Peck v. Otten: (329 Ill.App. 3d 266, 263 Ill.Dec. 688, 768 N.E.2d 769 (3d Dist. 2002) | ||
| Breaking son's pool stick because son did not complete his homework and
housework and where father had acted similarly on prior occasions when he
came home late after drinking, constituted harassment and abuse under the
IDVA. The trial court erred in prohibiting the father from having contact with his son as a remedy. The trial court also erred in failing to provide for a termination date with respect to the OP. Note: Dissent. |
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| IRMO Flannery, 328 Ill.App.3d 602, 263 Ill.Dec. 274, 768 N.E.2d 34 (2d Dist. 2002) | ||
| Standards Applying to Hearsay Allegations of Abuse in Proceedings
under IDVA in Which Physical Possession of Child is Sought / Corroboration
of Abuse — Verbal Acts Accompanying Statements: (1) Section 8-2601 of the Code applies and Section 606(e) does not apply to admissibility of hearsay statements of abuse in domestic violence proceedings where the relief sought is possession/visitation rather than legal custody. Thus, the trial court should have conducted a prior hearing to determine the reliability of the child's statements. (2) Verbal acts (child's physical conduct) cannot corroborate hearsay statements of abuse, i.e., hearsay cannot corroborate hearsay under either the IDVA or Section 606(e) of the IMDMA. Section 606(e) provides that prior statements of abuse “shall be admissible in evidence in a hearing concerning custody or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination shall be sufficient in itself to support a finding of abuse or neglect.” Section 8-2601 of the Code addresses hearsay statements of sexual abuse for children under age 13. Thus, note that the Code provisions address sexual abuse while the IMDMA provides address any sort of abuse “within the meaning of the Abused and Neglected Child Reporting Act” or within the meaning of the Juvenile Court Act.” |
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| IRMO Deem, 328 Ill.App.3d 453, 262 Ill.Dec. 741, 766 N.E.2d 661 (4th Dist. 2002), holding: | ||
| Trial Court Should Not Provide for Custody to One Parent During School
Year and to Other During Summer Where Children are Young: Trial court improperly
awarded the Wife sole custody during the school year and the husband custody
during the summer. Trial court therefore also erred in award of child support
to the husband during his summer parenting time. Contrast, IRMO Dullard, 176 Ill.App.3d 817, (1988) where the court upheld such an arrangement. The case states, “alternating custodial arrangements have been looked upon with disfavor unless the child is mature enough to cope with the custodial arrangement and visitation is difficult to organize because of the child's activities.” Case cited cases such as Oros and Swanson disapproving of shifting custody between parents. Concurring opinion pointed out that language was misguided but time allocation was not. |
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| IRMO Bielawski and Rycroft 328 Ill.App.3d 243, 262 Ill.Dec. 137, 764 N.E.2d 1254 (1st Dist. 2002), holding: | ||
| Maintenance in Lieu of D.B. Plan Distribution: Where a party
enters into a MSA which treats an interest in a defined benefit plan as
an income stream for the purpose of unallocated maintenance rather than
dividing this asset pursuant to a QDRO, the trial court properly refused
to grant the ex-wife's 2-1401 motion. The appellate court distinguished
Brackett, 309 Ill.App. 3d 329 (2nd Dist. 1999)
because Brackett involved a contested divorce rather than a MSA and
because there were present value determinations as to the plan interest. |
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| IRMO Murphy 327 Ill.App.3d 845, 261 Ill.Dec. 684, 763 N.E.2d 933 (4th Dist. 2002), which was reversed by Illinois Supreme Court's decision 327 Ill.App.3d 845 (2003) | ||
| Attorney's Fees for Prosecution of Successful Appeals: My
previous comment stated, "Cert. Has been accepted in this case. Expect a
reversal from the Illinois Supreme Court." As anticipated, the Illinois
Supreme Court ruled that to recover fees for the prosecution of a successful
appeal under Section 508(a)(3.1) of the Illinois Marriage and Dissolution
of Marriage Act the appellant does not need to obtain at least half the
relief sought in the entire appeal. Instead, under Section 508(a)(3.1),
fees are given for each issue in which the appellant substantially prevails. |
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| IRMO Scroggins 327 Ill.App.3d 333, 261 Ill.Dec. 268, 762 N.E.2d 1195 (4th Dist. 2002), GDR 02-24, holding: | ||
| Party Entitled to SOJ as of Right in Domestic Violence Proceedings
after Issuance of Emergency Orders: The trial court erred by not
granting motion for substitution of judge as of right, even when filed the
day before scheduled hearing on plenary order of protection, because motion
was timely filed and made before hearing and before judge had ruled on any
substantial issue in the case (court on its own motion had extended EOP
after the filing of an appearance by husband's attorney). |
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| IRMO Osborne, 327 Ill.App.3d 249, 261 Ill.Dec. 606, 763 N.E.2d 855 (3rd Dist. 2002), GDR 02-13 holding: | ||
| Provision for Life Insurance Did Not Terminate on the Emancipation of
the Children: Marital settlement agreements must specifically refer to life
insurance policies as being tied to child support obligation to terminate
obligor's payment of premiums upon emancipation of the children. In this
case the marital settlement agreement merely provided that the husband was
to pay the premiums on six life insurance policies that named the his wife
as the irrevocable beneficiary. The court denied the former husband's post-emancipation
petition to terminate his obligation to provide life insurance. Comment: No doubt this case involved a poorly drafted MSA that did not reflect the intent of the parties. Section 510(d) provides that child support does not terminate on the death of the parent providing support, “unless otherwise agreed in writing or expressly provided in a judgment.” If the life insurance is provided in a MSA to secure payment of child support, MSA should also provide that should there be compliance with the obligation to maintain life insurance, support terminates on death of the payor. Case law authorizes a party to provide life insurance to secure payment of support: In re Janssen, 292 Ill.App.3d 219, 685 N.E.2d 16 (4th Dist. 1997). |
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| IRMO Kates,198 Ill.2d 156, 260 Ill. Dec. 309, 761 N.E.2d 153 (2001) GDR 02-11. (Illinois Supreme Court), holding: | ||
| Non-Existence of Paternity Proceedings Following Adjudication Requires
Prior DNA Test Results: Before trial court can consider petition brought
under Section 7(b-5) of the Illinois Parentage Act of 1984 (to declare the
nonexistence of paternity after an adjudication and judgment of paternity),
DNA test results disproving paternity must be obtained. Comment: Case shows danger of acquiescing to parentage “adjudication” if there is any doubt — including . Keep in mind that an adjudication = voluntary acknowledgment of parentage. Section 7(a)(4) vs. 8(a)(5): The statute of limitations period is set forth in Section 8(a)(4) which provides for the bringing of such a petition not more than six months after August 6, 1998 or more than two years after obtaining “actual knowledge of relevant facts.” The statute states, “The 2-year period shall not apply to periods of time when the natural mother or the child refuses to submit to DNA tests.” Key: Obtain test results disproving parentage either on consent or just with father and child. |
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