Jul 1, 2020

Family Law Flash Points - July 2020

1. Court erred when considering new evidence at motion to reconsider hearing regarding relocation.  The trial court denied mother’s request to relocate her three minor children from Naperville, Illinois to Evansville, Indiana.  Mother subsequently filed a motion to reconsider which the trial court granted. Husband appealed and the Appellate Court reversed resulting in the mother not being permitted to relocate the children. During argument on the motion to reconsider, mother’s counsel attempted to argue facts not originally admitted into evidence including: (1) that direct flights between Chicago and Evansville did exist and (2) that since the underlying hearing father had failed to hire anyone to watch the children after school.  The trial court rejected the evidence regarding the direct flights because that could have been offered at the original hearing.  However, it accepted some of mother’s arguments regarding father’s inability and difficulty securing supervision for the children, of which there was no evidence.  The Court noted that father had admitted in his pleadings that he had not yet hired a sitter and that his own father and the eldest child (who was now emancipated) had watched the two minor children when he worked late.  While there is no issue with accepting these admissions into evidence, the court abused its discretion at the motion to reconsider hearing by accepting anything beyond what was admitted in the pleadings.  In re the Marriage of Prusak, 2020 IL App (3d) 190688.

2. Trial court erred when it reversed itself upon reconsideration of the issue of whether a reasonable parenting schedule could be fashioned in a relocation case.  The trial court ruled that a reasonable parenting schedule could not be created between the minor children and their father who lived in Naperville, Illinois if the children were relocated to Evansville, Indiana, and therefore denied mother’s petition for relocation.  The court was reluctant to enter the parenting scheduled suggested by the guardian ad litem because the children would have been burdened with significant travel time (approximately 10 hours in a car) and the schedule would have interfered with the opportunity for the children to meaningfully participate in extracurricular activities with their friends over the summer, among several other reasons.  Further, mother had presented no evidence regarding her search for affordable housing in Illinois and her employment was not dependent upon her living in Evansville.  Although the trial court reversed itself upon reconsideration and ruled that a reasonable parenting schedule could indeed be fashioned, the Appellate Court disagreed and reversed.  The trial court had originally issued a detailed nine-page written decision in which it stated that it found that the mother had failed to present sufficient evidence that the relocation was in the children’s best interests.  Such a decision was supported by the evidence.  Further, mother decided to leave her children and move to Evansville prior to the ruling on her petition for relocation.  The Appellate Court stated: “A parent should not be allowed to benefit from such a preemptive decision when they fail to establish that relocating the children to that area is in the parent’s and the children’s best interests.” In re the Marriage of Prusak, 2020 IL App (3d) 190688.

3. Standard of review on a motion to reconsider a relocation order clarified.  Mother filed a petition to relocate three minor children to Indiana which was denied.  However, the circuit court granted mother’s motion reconsideration which effectively allowed her to remove the children.  Father appealed the order on the motion to reconsider and the Appellate Court emphasized that the issues on appeal were limited to whether the trial court erred when it granted the motion to reconsider – not the original relocation issues.  Father appealed on two bases: (1) that the court misapplied the law when it ruled that it could not fashion a reasonable parenting schedule and (2) that the court considered evidence of post-hearing facts concerning father’s difficulty in securing supervision for the children while he worked.  The Appellate Court applied the de novo standard of review when looking at whether the trial court erred when it ruled that it could not fashion a reasonable parenting schedule if the children moved to Indiana.  Further, it applied the abuse of discretion standard when evaluating the court’s reliance on facts that occurred after the hearing regarding father’s alleged difficulty securing child care for the children while he worked.  A special concurrence was filed arguing that the manifest weight of the evidence should have been applied which the majority addressed in a footnote stating that had the appeal been focused on the original relocation order, the manifest weight of the evidence standard would have been the appropriate standard of review.  In re the Marriage of Prusak, 2020 IL App (3d) 190688.

4. Attorneys’ fees awarded in connection with appeals deemed interim fees and thus, the Appellate Court did not yet have jurisdiction to adjudicate.  In a procedurally complex case which has been up on appeal twice, the trial court ordered ex-husband to pay ex-wife, $32,952 for fees incurred on one appeal and $89,465.50 for fees incurred in a second appeal.  Both parties agreed and argued that the Appellate Court had jurisdiction to hear the issue because the trial court had entered the fee awards pursuant to Section 503(j) and that it was a final fee award.  However, the Appellate Court noted that neither the original petition for fees nor the court’s order cites to Section 503(j).  The Court evaluated Sections 508(a), 503(j) and 501(c-1) and ultimately relied on the case of In re Marriage of Derning, 117 Ill.App.3d 620 (1983) when reaching the conclusion that the order for attorneys’ fees was inextricably tied to the remaining personal property issues which remained partially unresolved.  Despite the fact that order included Rule 304(a) language that the order was a final appealable order, the trial court’s order cannot confer the Appellate Court with jurisdiction.  Therefore, the appeal was dismissed for lack of jurisdiction.  In re Marriage of Crecos, 2020 IL App (1st) 182211.

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