News and Case Studies

Recent State of Illinois News:

Civil – Appeals/ Post Dissolution 2nd Dist.

In re Marriage of Valkiunas, No. 2-08-0279 (December 18, 2008) McHenry County (Zenoff) Order granting motion to reconsider vacated.
Order allowing mother’s motion to reconsider dismissal of appeal from entry of post dissolution custody modification, because there were still two contempt petitions pending, must be vacated; because, after motion was allowed, supplemental record reveals that there is newly filed motion to disqualify mother’s attorney. Therefore, pursuant to amended SCR 303(a)(2), mother’s notice of appeal has not yet taken effect.

Civil – Dissolution Of Marriage/ Maintenance / Property Divisions 4th Dist.

In re: the Marriage of Walker, No. 4-07-0730 (November 26, 2008) Adams County (Myerscough) (COOK, special concurrence, TURNER, partial concurrence, partial dissent) Affirmed.

Trial court did not abuse its discretion when it awarded wife permanent maintenance after 26 year marriage with wife earning $37,000 and husband $204,000 by the courts calculation. Further, trial court was not required to believe husbands testimony that his 2006 bonus was extraordinary. In addition, trial courts award of property based on approximately 60/40 split, with the wife receiving mostly illiquid assets, is not error; and trial court had the authority to order the husband to maintain life insurance as security for his maintenance obligation.

Civil – Post Dissolution/ Injunctions / Pensions 1st Dist.

In re Marriage of Winter, No. 1-07-0619 (November 24, 2008) 1st div. (Garcia) Affirmed in part, reversed in part.
On interlocutory appeal, when former husband was located in England, where he is a permanent resident and beyond the contempt powers of the court, the trial court properly exercised its powers of equity when, after final judgment of dissolution of marriage awarding a portion of husbands teachers pension to wife, husband refused to execute QUILDRO, and was receiving entire annuity, it imposed constructive trust on the pension payments, named husbands attorney as Trustee, enjoined Pension Fund from making any further payments directly to husband, and directed that husbands attorney receive payments and hold proceeds in his IOLTA account. However, it exceeded its authority when it directed that payments be made payable to attorney.

Civil – Dissolution Of Marriage/ Maintenance / Property Division 4th Dist.

In re Marriage of Abrell, No. 4-06-0974 (November 19, 2008) Sangamon County (Knecht) (MYERSCOUGH, partial concurrence, partial dissent) Affirmed in part, reversed in part, remanded.

Trial court erred when it concluded that accumulated sick and vacation days by husband, a State employee, are marital property subject to division in the dissolution of the parties marriage. However, the trial court did not abuse its discretion when it denied husbands motion to reconsider its award of maintenance. Although trial court concluded that wife was essentially, unemployable in its memorandum of opinion, fact that she obtained full time employment, after proofs had closed in case but before judgment was entered, is not newly discovered evidence. The trial court, instead, properly considered the motion to reconsider as a motion to modify. However, it should have reduced the maintenance award based on the wifes newly acquired employment as of the date of filing the motion; although it was not required to reduce the maintenance by more than the $250 per month set by the court.

Civil – Child Custody/ Post Dissolution / Judges 1st Dist.

In re Marriage of Suriano v. Lafeber, III, No. 1-08-1563 (November 10, 2008) 2nd div. (Karnezis) Vacated and remanded.

Trial court lacked authority to terminate the parties joint parenting order after hearing fathers petition for rule to show cause alleging that the mother violated the provisions of the jpa by unilaterally making decisions with regards to the childrens health care and activities without consulting him. There was no pleading filed seeking a termination of the joint parenting order; the father was denied due process because he was not notified that custody was an issue; and the court failed to make the requisite findings. However, the court declines to order that the case be assigned to a different judge, pursuant to SCR 366; because the record does not show judicial bias toward the respondent and impartiality is presumed.

Civil – Defamation/ Abused And Neglected Child Reporting Act / Judges 2nd Dist.

Naleway v. Agnich, No. 2-06-1275 (October 31, 2008) DuPage County (Omalley) Affirmed.

In trial of complaint by plaintiff, father, on his own behalf and on behalf of his minor daughter, for defamation and false light invasion of privacy, as result of defendant, maternal aunts statements to police and DCFS caseworkers that plaintiff had sexually abused his daughter, it was not error for trial court to refuse to instruct jury that malice was presumed for purposes of qualified privilege contained in Abused and Neglected Child Reporting Act. Further, testimony of defendant, podiatrist, and police officer, that childs mother requested defendant to examine child is sufficient to instruct jury on defendants theory of immunity as mandatory reporter. In addition, although it was error for court to exclude testimony concerning affidavit submitted by defendant with JIB complaint against trial court, after defendant voluntarily disclosed it to plaintiff, based on privilege, it was nevertheless inadmissible as improper rebuttal.

Civil – Abuse And Neglect/ Parental Unfitness 1st Dist.

In re M. W., a Minor, No. 1-08-0981 (October 31, 2008) 5th div. (Omara Frossard) Affirmed in part, reversed in part.

Trial courts finding that minor, whose mother lost parental rights to older sibling after she allowed her paramour to inflict severe physical and sexual injuries and her parental assessment established that her psychological disorder made her incapable of protecting him from abuse, was neglected by virtue of injurious environment but was not abused because of substantial risk of physical injury, is not against the manifest weight of the evidence. However, its finding that mother is fit to assume custody and guardianship of minor with supervisory order is inconsistent with evidence that her underlying psychological disorder is unresolved; and that she was not forthcoming with regards to the criminal history and residence address of childs father.

Civil – Child Support/ Income Withholding / Jurisdiction

2nd Dist. In re Marriage of Gulla, No. 2-07-0387 (May 1, 2008) Lake County (GILLERAN JOHNSON) Affirmed

Trial court correctly concluded that it has jurisdiction to hold Mississippi employer liable for its failure to withhold income from its employee after it was served, by certified mail, with an order for withholding from Illinois court. Mississippi Code, in compliance with United States Code requirement, treats Illinois withholding order as if it were entered in Mississippi. In addition, because employer took no action after receiving clearly stated order that instructed it to contact wifes attorney if it had any questions, employer failed to rebut presumption of willfulness; and penalty of $369,000 is proper,…..

Civil – Dissolution Of Marriage/ Property Division

3rd Dist. In re: Marriage of Joynt, No. 3-06-0919 (August 16, 2007) Peoria County (LYTTON) Affirmed

Trial court did not err when it characterized retained earnings in husbands closely held corporation as non marital property. Husband owns only 33% of shares of Sub S corporation; and does not control distribution of dividends. Further, court based its finding on totality of husbands control, including significant distributions to officers in recent years, and buyout agreement between husband and his father. In addition, trial court did not abuse its discretion when it awarded wife 60% of marital assets, especially considering the obligations it imposed on husband.

Child-support enforcement

Senate Bill 1035 (Martinez, D-Chicago; Soto, D-Chicago) makes two changes. (1) Authorize municipalities to impound motor vehicles owned by responsible relatives who are delinquent in child-support payments according to the Illinois HFS. (2) Prevents the SOS from issuing, allowing, or renewing a drivers license to any responsible relative who HFS certifies as delinquent of 90 days or more in child-support payments based on a court order or an administrative order by HFS or an administrative agency of any other state. Passed both chambers. Immediate effective date

Recent article on judicial evaluations (please note that Ms. Anderson is a member of the Standing Committee on Judicial Evaluations, Illinois State Bar.)

Brittney Pescatore
The National Law Journal
August 3, 2007

As public interest in judges professional performance grows, states use of judicial performance evaluations has been on the rise.

States are increasingly institutionalizing the evaluation process, passing statutes requiring the formation of a judicial evaluation commission.

Kansas is the most recent to launch an official judicial performance evaluation program. A state commission was established in 2006. It will send out its first questionnaires to evaluators this month for judges on the 2008 ballot.

In March of this year, a Minnesota commission chaired by former Gov. Al Quie released its report on ways to preserve an impartial judiciary.

Known as the Quie Commission, the group recommends the adoption of a comprehensive performance evaluation. The proposed commission would comprise 30 members, the majority of whom are not lawyers, and would issue a data report detailing whether a judge meets established performance criteria.

In his recent State of the Judiciary Address in January, Missouri Chief Justice Michael A. Wolff called for an attempt to **~~remedy the lack of information about judges**~~ by looking at judicial evaluation systems in other states. Wolffs plan would enlist the help of the Missouri Bar to create an independent, nonpartisan program.

Florida also explored the possibility of implementing a formal judicial evaluation system, but its commission recommended against doing so in June.

Performance-evaluation programs measure criteria such as the professionalism of judges, how well they manage caseloads and the respect with which they treat people in the courtroom.

The Kansas commission plans to survey a variety of people who interact with the judges, including attorneys, jurors, appellate judges and members of the court staff. The state will issue a voter guide to the public, including a recommendation on whether to retain judges in the upcoming election, said Malia Reddick, a member of the Kansas commission and director of research and programs at the American Judicature Society.

The AJS and other legal reform groups are hailing performance evaluations as a way to hold judges accountable while respecting their independence.

**~~Its the right way to provide judicial accountability,**~~ said Reddick, adding that initiatives such as J.A.I.L. 4 Judges in South Dakota, or Judicial Accountability Initiative Law, are the wrong direction. J.A.I.L. 4 Judges was a failed constitutional amendment on the ballot in South Dakota last year that would have curtailed judicial immunity and allowed judges to be prosecuted for their rulings. The group that sponsored the amendment is seeking to get it passed in other states.

The Institute for the Advancement of the American Legal System (IAALS), based at the University of Denver, published a report in 2006 called **~~Shared Expectations: Judicial Accountability in Context,**~~ which recommended performance-evaluation programs as a responsible way to hold judges accountable. According to the report, 19 states now have systems, including Arizona, Colorado, New Mexico, Tennessee and Utah.

**~~Accountability for the judiciary is a hot topic,**~~ said Rebecca Kourlis, executive director of the IAALS and a co-author of the report, **~~but the term accountable is being held hostage by people who have political agendas.**~~

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LEGAL TERMS

Affidavit:
A written statement under oath.

Alias Summons:
A summons when the original is not served on the defendant.

Child Representative:
Please read the information under **~~Guardian Ad Litem**~~.

Child Support Guidelines:
Each state has child support guidelines which must be followed in awarding child support. The guidelines are typically a formula. There are only a few circumstances when the court can award child support higher or lower than the guidelines.

Custody:
Case type filed to determine the care, control and maintenance of a child or children.

Custody-Sole & Joint:
Refers to the legal arrangements for whom a child will live with and how decisions about the child will be made. Custody has two parts: legal and physical. Legal custody is the decision-making part: physical custody refers to where the child lives on a regular basis. Generally, the parent the child does not live with will be allowed to have regular visits with the child(ren). Parents can make any custodial arrangement that is in the best interest of their children. The standard for custody is **~~best interest of the child**~~.

Default:
A party’s failure to answer a complaint, motion or petition.

Discovery:
A way for getting information from the other side or other people. Examples of discovery are interrogatories (written questions) and depositions (questions which are usually in person or recorded).

Disposition hearing:
The disposition hearing allows the court to determine, after finding that the child has been abused and/or neglected, whether it would be in the best interest of the child that the child be made a ward of the court. At the hearing, the court determines who shall have custody and control of the child, and whether out-of-home temporary placement should continue, based upon, in part, the child care agency�s plan to protect the child from further harm.

Dissolution of Marriage:
Case type filed when a party would like to obtain a divorce.

Domestic Violence:
Any criminal case of a domestic nature in which a dispute is resolved. Domestic Violence cases involve domestic disputes and cases in which an Order of Protection is requested and/or obtained. All Domestic Violence cases must be accompanied by a criminal complaint.

Focus on Children:
Requirement by the State of Illinois that divorcing parents participate in this short program to provide them with information regarding the well being, behavioral symptoms and other important points with respect to their child(ren) as they navigate the divorce of their parents.

Grounds for Divorce:
The legal basis for divorce; the law sets out specific reasons for a divorce which have to be proven before the court can grant a divorce.

Guardian Ad Litem:
A Guardian Ad Litem is usually an attorney appointed by the court to represent the child(ren) in a legal dispute (often a divorce) concerning their custody or welfare. In many situations the parties involved in these situations are so wrapped up in his/her own problems or needs that they fail to see the situation from the perspective of the child(ren). The court appoints the Guardian so that he/she does not owe any allegiance to either party. They conduct an investigation and present to the court recommendations as to what disposition would be in the best interest of the child(ren).

Guardianship of Minor Person:
One who has the legal authority and duty to care for a person who has not reached full legal age; a child of juvenile. Also termed infant.

Joint Simplified Dissolution of Marriage:
Case type filed between partied who meet specific criteria. The marriage could not have exceeded eight years.; there are unreconcilable difference, the parties have been separated six months or more, and efforts at reconciliation have failed or future attempts would be impracticable and not in the best interests of the family; there are no children and the wife is not pregnant; neither party is dependent on the other for support; each party waives the right to spousal support; neither party has an interest in real estate; the total fair market value of all marital property, after deducting all debts owed, is less than $10,000; the total income of both parties is less than $35,000 and neither party has a gross annual income from all sources in excess of $20,000; both parties have disclosed to each other all assets and tax returns for all years of the marriage; and the parties have executed a written agreement dividing all assets in excess of $100.00 in value and allocating responsibility for debts and liabilities between themselves.

Judgement:

A court’s decision.

Jurisdiction:
The authority of the court to hear a case.

Order of Protection, Criminal:
The Illinois Domestic Violence Act of 1986 can be enforced in a criminal or civil court. To obtain an Order of Protection in a criminal court, the abuser must commit a criminal act against the victim. For example, the defendant may have committed an assault or battery, or may have stalked a victim. The criminal court will grand an Order of Protection only if the victim testifies against the abuser. Also, the victim must press charges in the original criminal case. The Order of Protection will remain valid as long as the victim cooperates with prosecutors. The state does not have to prove beyond a reasonable doubt that the abuser is guilty of the criminal act for the victim to obtain the Order of Protection, but the victim cannot drop the criminal charges in order to maintain the Order of Protection. When the State finishes its case against the abuser, the Order of Protection typically ends.

Order of Protection, Civil:
A court Order entered to protect a Petitioner (the person seeking relief) from the Respondent (the person who allegedly hurt the petitioner). A civil order of protection can only be filed against certain persons with whom the petitioner has a special relationship with: people who are married; people related by blood; people who live together or formerly lived together; people who are dating or formerly dated; people who are engaged or formerly engaged; and people with disabilities, against their caregivers.

Order on Rule to Show Cause:

Permanency Hearings:

Permanency Hearings allow the court to determine the permanent placement of a child. The court decides whether a child should be permanently returned home, or whether efforts to return the child home should cease. Where a family has made substantial progress for a child to be returned home prior to the permanency planning hearing, the court may authorize the return home of the child within a short time after the hearing. When the decision at the permanency planning hearing is not to send the child home, the court may consider adoption before accepting a lower priority option of placement such as extended foster care or long-term custody.

Petition to Register Foreign Judgment:

Registration process for Judgements entered in other counties and states other than Illinois in order that monies owed may be collected.

Preliminary Divorce Papers/Petition for Dissolution:

These are the first set of documents drafted by the attorney to start the divorce process. While these documents are filed with the county and remain on file with the Clerk of the Circuit Court, they are only preliminary and do not represent the actual divorce settlement.

Pro-se/Proper Person:

Representing yourself in court without an attorney.

Prove Up Date:

The actual divorce occurs on the **~~prove up date**~~. This is the day the Judge hearing the matter actually enters the Judgement for Dissolution, the Marital Settlement Agreement (deals with all monetary aspects of the divorce) and the Parenting Agreement (dealing with all issues related to the welfare of the children of said marriage).

Rule to Show Cause:

A rule to show cause is a legal action which takes the case back to court for further enforcement. Often seen in cases of child support and issued by the court if the non-custodial parent is not meeting the terms of the support order. At that time, it would be the non-custodial parents obligation to present to the judge sufficient evidence as to why he or she is delinquent.

Subpoena:

A form issued by the court requiring someone to appear in court and/or bring documents.

Temporary Restraining Order:

The court requiring a party(s) to refrain from doing or continuing to do a particular act or activity.

Temporary Custody Hearing
A preliminary protective hearing is held to determine if a minor(s) should be immediately removed from the custody of an accused parent or caregiver and placed with the state.

Temporary Custody:

A court awards or changes the custody arrangement of the children involved in a domestic dispute between the parents or present guardian solely to one of the parties whom the court sees as best fit in the near term.

Uncontested Divorce:

When the defendant is not going to try to stop the divorce and there are no issues for the court to decide about the children, money, or property.

Venue:

The county where the case is heard.

Visitation:

Case type filed to obtain permission by the court to visit a child or children.

Writ of Summons:
a form issued by the court directing a party to respond to a complaint, motion, or petition.
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Recent Appeals Decisions –

Civil – Child Custody/ Contempt / Appeals

1st Dist. In re Marriage of Carrillo, No. 1-06-2274 (April 13, 2007) 6th div. (McNULTY) Affirmed in part, reversed in part, remanded
Because judgment order of dissolution of marriage did not dispose of fathers petition for rule to show cause for violation of temporary visitation order, because order contained no Rule 405(a) language, there was no final and appealable order until the trial court dismissed the petition for rule. Further, the trial court, after refusing to consider petition at hearing on all matters other than grounds, abused its discretion when it dismissed rule petition without allowing father to present any evidence. However, decision to reconsider joint custody decision after husband filed motion to reopen proofs to allow him to question child representative, and award wife sole custody was not an abuse of discretion; because court was following specific recommendation of custody evaluator that joint custody would only be in childrens best interests if father allowed war with mother to end.

Civil – Appeals/ Dissolution Of Marriage

2nd Dist. In re Marriage of Waddick, No. 2-06-0363 (April 17, 2007) Kane County (McLAREN) Appeal dismissed
Written decision by trial court in dissolution of marriage proceeding which decided contested issues and directed that joint custody order was to be entered, either by agreement or order, was not final judgment because it did not contain requisite specification of each parents rights, duties, and responsibilities pursuant to Section 602.1(b) of IMDMA. Therefore, motion to reconsider filed after decision but before entry of judgment of dissolution was not a timely filed post trial motion pursuant to Section 2-1203(a) of Code of Civil Procedure; and appeal filed within 30 days of its denial is not timely.

Civil – Removal/ Child Custody

2nd Dist. In re: Matchen, No. 2-06-0749 (April 11, 2007) McHenry County (CALLUM) (BOWMAN, dissent) Affirmed
Trial court did not abuse its discretion when it denied petition by joint custodian, mother, with whom 12 and 14 year old children of the parties resides, to remove children to Wisconsin Dells to enable her to reside with her retired fianc Court found that reasonable visitation schedule could not be maintained that would allow for same level of involvement with children as father enjoys now through regular weekly contact; that children do not want to move to Wisconsin; and that move was matter of preference on part of mothers fiancas opposed to necessity.

Civil – U C C J E A
2nd Dist. In re Joseph V.D., a Minor, No. 2-06-0988 (March 1, 2007) Kane County (OMALLEY) Vacated and remanded
Trial court lacked jurisdiction to enter order on custody and support of parties minor child because, although trial court knew that there was already pending custody case in Nevada, and trial judge communicated with Nevada court, there was no record made of communication as required by Section 110 of UCCJEA.

Civil – Parental Rights/ Abuse And Neglect

Recent Illinois Appeal Decisions

4th Dist. In re: Veronica J., a Minor, No. 4-06-0849 (March 1, 2007) Logan County (APPLETON) Affirmed
Although trial courts finding that respondent failed to make reasonable progress toward return of her child is erroneous, its finding that she is unfit because she failed to protect her child from an injurious environment is not. After admitting that her infant was dependant and conceding custody, but while residing in the same home with her infant, respondent allowed drugs to be kept and sold from her residence.

Civil – U C C J E A

4th Dist. In re: Sophia G.L., a Minor, No. 4-06-0864 (March 1, 2007) Greene County (McCULLOUGH) (MYERSCOUGH, dissent) Reversed and remanded
Trial court erred when it refused to register April, 2006 Indiana child custody order filed by intervenors, the childs grandfather and his wife, with whom the childs mother and child resided from the childs birth until March, 2006. Although plaintiff filed petition in Illinois alleging that he was father of child on same date that order was entered in Indiana, he did not sign birth certificate of child, and paternity had not been established at the time of the Indiana proceeding. Hence, he did not prove that he was entitled to notice of Indiana custody proceeding. Therefore, he did not prove any of the three grounds for challenging registration of a custody order from another State set forth in Section 305 of UCCJEA.

Civil – Abuse And Neglect/ Appeals / Parental rights

1st Dist. In re: Janira T., No. 1-06-0111 (December 12, 2006) 2nd div. (HALL) Affirmed (Modification)
Appellate court lacks jurisdiction to consider appeal from finding of abuse and neglect, because respondent failed to appeal within 30 days of dispositional order. Further, State proved by clear and convincing evidence respondents failure to maintain reasonable degree of interest, concern or responsibility as to the childs welfare. She never followed service plan and made only half hearted attempts to visit her child in the years that child was in DCFS custody. Finding that it was in childs best interests to terminate parental rights was neither against manifest weight of the evidence nor abuse of discretion.

Civil – Dissolution Of Marriage/ Appeals

2nd Dist. In re Marriage of Mardjetko,
No. 2-06-0401 (January 5, 2007) Kane County (CALLUM) Appeal dismissed
Trial court lacks jurisdiction to consider appeal from dissolution of marriage judgment, which reserves issues of plaintiffs maintenance, respondents visitation with the parties children, and obligation for post high school education without making any findings explaining why the reservation was appropriate, and without making Rule 304(a) findings. Therefore, order is not final; and appeal is premature.

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