Jun 13, 2022

IICLE Family Law Flash Points - June 2022

Motion To Vacate Judgment for Dissolution of Marriage and Allocation Judgment on Grounds of Judicial Recusal Denied

In a litigious and procedurally complex case, the husband appealed the denial of a motion to vacate a judgment for dissolution of marriage and allocation judgment. In re Marriage of Cummings, 2022 IL App (1st) 211507. During the proceedings, the husband filed a motion in the circuit court for substitution of judge (SOJ) for cause. At issue were several comments the judge had made off the record such as that she was “sick of this case,” that she should recuse herself, and that she wanted “every piece of paper on this case out of [her] chambers.” 2022 IL App (1st) 211507 at ¶¶8 – 9. When the trial court entered the order transferring the case for hearing on the SOJ motion, the box was checked on the form order indicating that an SOJ for cause had been filed, and the box was also checked indicating that the motion was granted. The wife’s counsel filed a motion for clarification because the trial court judge could not grant the motion against herself. Eventually, the SOJ motion was transferred to another judge for hearing, it was denied, and the original judge was reassigned to the case, who presided over the case through entry of judgment. On appeal, the husband argued the case was similar to In re Marriage of Peradotti, 2018 IL App (2d) 180247, 117 N.E.3d 1242, 427 Ill.Dec. 305, in which a judge’s statements indicating he was recusing himself from a case was in fact a recusal and all orders entered after that statement were void. The appellate court noted, however, that in Peradotti the judge recused himself and, upon reconsideration, rescinded the recusal. Therefore, application of Peradotti to this case depended on whether the trial judge had actually recused herself. The parties agreed that the trial judge said that she should recuse herself but did not enter any recusal order. The appellate court held that the record did not evidence that the trial judge had actually recused herself by the order that was entered and declined to vacate the judgment for dissolution of marriage and allocation judgment and extend Peradotti to this case. The court also noted that the issue of a judge’s authority to rule on substantive matters after a petition for substitution has been filed, but before the petition is heard, is not yet settled under Illinois law.

Appointment of Receiver Postjudgment Upheld

In re Marriage of Padilla2022 IL App (1st) 200815, involved the fourth appeal in a dissolution of marriage proceeding. At the beginning of the opinion, the court noted that since the commencement of the proceedings, the husband filed 12 motions for substitution of judge (11 for cause), 3 motions to reconsider the denials of such motions, 1 motion to vacate the denial of such a motion, 1 motion to transfer venue, and 3 interlocutory appeals related to various judges. The husband had also filed a bankruptcy case in the middle of the proceedings. In this instant appeal, the wife brought an emergency motion to appoint a receiver due to the husband’s failure to comply with the judgment for dissolution of marriage and his history of fraudulently concealing assets. The emergency motion was granted, and the receiver was appointed. The day before the filing of the emergency the appointment on several grounds, all of which were denied: First, the trial court had subject-matter jurisdiction over the dissolution proceedings and therefore had the authority to rule on a such a motion. Second, the trial court had the authority to appoint a receiver in a postjudgment dissolution proceeding even though the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., does not specifically grant such authority since the trial court retains indefinite jurisdiction to enforce the terms of its judgment. Third, the trial court did not abuse its discretion in making such an appointment in this case. The appellate court noted that the husband failed to provide the court with a complete record to evaluate the trial court’s abuse of discretion, so the appellate court was required to presume that the trial court had not abused its discretion motion, the husband had filed another motion for substitution of judge, which was not ruled on at the time the trial court appointed a receiver. The appellate court held that there was no evidence that the motion for substitution of judge was properly before the court on the day the emergency motion was granted or that the trial court took any action to prevent it from being heard thereafter. The husband appealed.

Evidentiary Hearing Required on Whether Husband Lacked Income To Pay Child Support at Certain Level

At issue In re Marriage of Jones, 2022 IL App (5th) 210104, was the language of an agreed order modifying a child support obligation (2018 order), which contained language that the parties agreed that, in exchange for the modification of support therein and the wife’s ability to move to St. Louis, Missouri, no further reduction or increase in child support would be requested by either party except in certain limited circumstances. The order also contained a “penalty” provision for the calculation of any potential further modified amount if the husband did seek to further reduce his support obligation. The husband, who was employed as an eye surgeon and earned more than $1 million per year, filed an emergency motion to modify support in May 2020 due to the COVID-19 pandemic and the executive orders entered by Governor Pritzker eliminating the vast majority of his business, which was elective surgery. The wife opposed, arguing that the husband had not proven that his income had declined and filed a petition for rule to show cause to trigger the penalty provision of the 2018 order. The husband filed a motion to dismiss the petition for rule to show cause, arguing that the penalty provision and prohibition on filing for a further reduction were against public policy because they denied him a statutory right to seek a reduction on a substantial change of circumstances. The husband ultimately withdrew his motion for modification. The trial court denied the husband’s motion to dismiss the wife’s petition for rule, and the husband appealed. The appellate court affirmed the trial court’s denial of the husband’s motion to dismiss because an evidentiary hearing was necessary to determine the husband’s actual ability or inability to pay support. While the court can take judicial notice of a global pandemic, the petition raised questions about the husband’s actual ability to earn income. Just because a business may have been restricted from performing services during COVID-19, it could have received government funds to pay salaries. An evidentiary hearing was needed to make such a determination.

Modified Child Support Amount in Agreed Order Improperly Vacated

In Jones, supra, during a hearing on the husband’s motion to dismiss a petition for rule to show cause filed by the wife, the trial court struck four different provisions of an agreed order entered in 2018, which modified child support by agreement, allowed the wife to relocate to St. Louis, Missouri, and prohibited either party from filing for future modifications for support. There was also a “penalty” provision if the husband did move to further reduce child support except in limited circumstances in terms of the way child support would be calculated. The issue regarding the penalty provision and the provision prohibiting further modifications of support were abandoned on appeal, so those provisions remained stricken from the order. The appellate court reversed the trial court with respect to the paragraphs related to the modified support amounts. The court found that the parties had attempted to negotiate an acceptable support arrangement between themselves, the parties were represented by counsel at the time, and those provisions should be reinstated as the parties had negotiated and agreed to. The court also said that the reasoning for vacatur due to a petition relating to a modification of support not being on file at the time the order was entered was unsound and that the trial court may enter an agreed order despite the lack of an underlying petition if the court finds the order is in the best interests of the child.

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