1. Wife made a prima facie case of dissipation with respect to withdrawals from a bank account in excess of living expenses. At trial, wife testified about and introduced into evidence several spreadsheets which she argued made a prima facie showing that husband had dissipated over $160,000 in unaccounted for cash withdrawals from his bank accounts from 2010 through the first half of 2016. Her reasoning included an analysis of his stated living expenses on his financial disclosure compared to his total withdrawals from his bank account statements. He did not take the witness stand to rebut the evidence and argued that wife had simply not met her burden of providing a prima facie case of dissipation. The trial court agreed and ruled that no prima facie case had been made. Wife appealed and the Appellate Court reversed. Dissipation is premised on the diminution or devaluation of the marital estate. In this case, the Court held that dissipation can also be based on evidence that a spouse withdrew funds that far exceeded his or her living expenses over a period of months or years. The Court also held that wife did not meet her burden of proving at which point the marriage began undergoing an irretrievable breakdown, and therefore she was limited to claiming dissipation at the time of the parties’ actual separation. In re Marriage of Hamilton, 2019 IL App (5th) 170295.
2. Trial court’s order that the marital home and a rental property be sold and the proceeds divided was not an abuse of discretion due to lack of competent valuation evidence. At trial, neither party presented the trial court with expert opinion testimony as to the value of the marital residence and a piece of rental property. While husband testified as to her own personal knowledge of what he believed the combined values of the two properties were worth, and wife presented evidence as to the assessed value of the properties based on the real estate taxes, both of those opinions of value were rendered two years prior to the entry of judgment. The trial court ultimately ordered the properties sold and the proceeds split and wife appealed. The Appellate Court upheld. It is the responsibility of the parties in a divorce action to provide the court with sufficient evidence of the value of the property. The trial court did not abuse its discretion in ordering the properties sold in light of the lack of relevant valuation evidence. In re Marriage of Hamilton, 2019 IL App (5th) 170295.
3. Horse-related expenses are in the nature of extracurricular activity expenses for minor child. The trial court held that expenses associated with the minor child having her own horses (which were bought by agreement of the parties during the marriage) and participating in horse-related events were not in the nature of extracurricular activity expenses because it was not part of her educational curriculum. The Appellate Court reversed relying heavily on the language of the 2017 IMDMA amendments even though the amendments were not in effect when the trial court ruled. The language of Section 505(a)(3.6) explains extracurricular activity expenses as those expenses which are intended to enhance the educational, athletic, social, or cultural development of child. The child’s horse activity expenses clearly enhanced her development in each of the areas, and therefore should not have been excluded from the court’s judgment. The Appellate Court remanded to the trial court for determination whether all or some portion of those expenses were reasonable and in what amount the husband should be required to contribute to. In re Marriage of Hamilton, 2019 IL App (5th) 170295.
4. Illinois Supreme Court holds attorney appointed as guardian ad litem in probate case had quasi-judicial immunity because appointment corresponded to GAL appointment under the IMDMA. In a matter of first impression, the Illinois Supreme Court held that an attorney’s appointment as a guardian ad litem (GAL) under the Probate Act was akin to a the appointment of a GAL under the IMDMA and reversed the Appellate Court’s holding that the GAL could be held liable for allegedly failing to protect his client’s interest in a probate proceeding. The Court engaged in a lengthy discussion of the various amendments of the IMDMA’s provisions pertaining to GALs and Child Representative compared to the language of the Probate Act as well as several Illinois and out-of-state opinions on the limitations on liability of a GAL. Relying on the U.S. Supreme Court case of Cleavinger v. Saxner, 474 U.S. 193, the Court utilized the “functional test” to evaluate whether the GAL’s role is sufficiently connected to the judicial process such that immunity from litigation was warranted. Ultimately, the Court held that the early cases decided under the Probate Act, where GALs acted much like traditional attorneys, were outdated, and that the appointment corresponded to a GAL under the IMDMA. It relied on the case of In re Mark W, 228 Ill.2d 365 (2008) which held the traditional role of the GAL is not to advocate for what the ward wants but, instead, to make a recommendation to the court as to what is in the ward’s best interests. This is consistent with the function of the GAL under the IMDMA as an investigator. Therefore, the GAL was protected by quasi-judicial immunity. Nichols v. Fahrenkamp, 2019 IL 123990.
5. Bifurcation order reversed after litigant’s death. The trial court entered a bifurcated judgment in the middle of trial due to allegations made on the record that husband’s health was dire. Husband did not appear for a day of trial and the record provided that his counsel advised the court he was in the hospital and was in line for a liver transplant. Wife did not agree with the representations made by husband’s counsel but conceded that her husband had significant health issues. The court found sua sponte that there were appropriate conditions to warrant a bifurcated judgment. Wife opposed the ruling because under a premarital agreement she had waived off on any of husband’s retirement benefits. Husband’s Personal Representative filed a confession of error and adopted wife’s position that there was not enough actual evidence regarding husband’s health on the record, nor a written request for a bifurcated judgment, which would be appropriate circumstances to enter the bifurcation. In light of the confession of error, the Court reversed the bifurcated judgment, which ultimately allowed wife to receive the survivor benefit of husband’s pension. While the Court limited the holding to the facts of the case, this holding emphasizes the importance of having a written motion for bifurcation on file as well as supporting evidence in the record to support the bifurcation. Claxton v. Reeves, 2019 IL App (5th) 170200.