IICLE Family Law Flash Points - June 2016

3.         Section 2-1401 motion should not have been dismissed for lack of wife’s due diligence in pursuing such motion. The parties were originally divorced in 2005 and at the time of the filing of that petition, husband owned 46.5% of the stock in a business. Under that judgment husband received his interest in the business but no value was placed on it.  Less than two hours after the judgment was entered, he agreed to sell the business for $16 million.  The record showed that at no point did wife know that he was contemplating the sale or know that the business was valued at $16 million.  Two years later, the parties remarried and five days before their marriage they singed a prenuptial agreement.  Husband’s assets were listed at $7,833,053.  Wife discovered the possible fraudulent concealment of the sale of the business during the discovery phase of their second divorce and brought a 2-1401 motion. The trial court dismissed wife’s 2-1401 motion because it believed that at the point wife signed the prenuptial agreement she became aware of the operative facts that gave rise to her claim by virtue of the value of husband’s assets, and that she failed to exercise due diligence in pursuing that claim.  The Appellate Court disagreed and stated it did not believe wife’s simple knowledge of the increase in value of husband’s assets put her on notice of his fraudulent concealment in the first divorce.  Wife adequately alleged fraud not only on her but also on the court and her case should not have been dismissed.  In re the Marriage of Van Ert, 2016 IL App (3d) 150433.

4.         Improper process for securing bystander’s report fatal to request for appellate review.  Father brought a petition for rule to show cause against mother for her failure to bring the minor child to Illinois for his Thanksgiving parenting time.  Mother moved to stay the contempt proceedings which was denied.  She was found to be in contempt and appealed both rulings.  Because no court reporter was present, mother attempted to create a bystander’s report to supplement the record on appeal.  Supreme Court Rule 321 sets forth the specific procedure for creating a bystander’s report, including serving the document on all parties and giving them the opportunity to propose amendments to the document before submitting it to the court for approval.  Because there was no indication in the record that the mother had properly served the proposed bystander’s report on the father or his counsel, the report was inadequate, and the trial court should not have certified it.  However, the underlying rulings of the trial court did not change as the Appellate Court upheld the finding of contempt since there was an inadequate record before it which would allow for review.  In re G.E., 2016 IL App (2d) 150643.