Mar 26, 2024

IICLE Family Law Flash Points - March 2024

Finding of Cohabitation Denied Upon Motion for Directed Finding

The husband filed a petition to terminate maintenance on the grounds that the wife was engaged in a continuing, conjugal relationship postjudgment in In re Marriage of Larsen, 2023 IL App (1st) 230212. At the close of the husband’s case-in-chief, the wife orally moved for a motion for a directed finding on the grounds that the husband had failed to meet his burden of proof. The evidence presented to the trial court was lengthy over a four-day hearing and included testimony by the parties, the wife’s boyfriend, and a couple of private investigators. The trial court granted the motion for directed finding, and the husband appealed. The appellate court issued a lengthy opinion affirming the trial court in which it noted that while the Herrin factors (see In re Marriage of Herrin, 262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994)) are the most relied on list of factors under which to analyze a cohabitation issue, the Illinois Supreme Court has not adopted the Herrin factors as the required list of factors to consider (see In re Marriage of Edson, 2023 IL App (1st) 230236). Rather, the law has shifted, the court stated, to focus on whether the relationship is “husband-and-wife-like” in nature based on the totality of the circumstances. 2023 IL App (1st) 230236 at ¶117. The evidence in the trial court showed that the couple in question, while they were in an intimate dating relationship, did not share any financial accounts or real estate and did not comingle their funds, with the exception of sharing cash for dinners and travel expenses and other nominal expenses. The wife’s boyfriend maintained his own residence and was responsible for his own household expenses. There was also a lack of evidence that the couple intended the relationship to be permanent in the way a marriage is. Therefore, the trial court’s decision was not against the manifest weight of the evidence.

In Camera Interview of Minor Child Regarding Sexual Abuse Violations Violated Father’s Due-Process Rights

In re Marriage of Doe2024 IL App (1st) 230935, concerned a mother’s petition for an order of protection on behalf of her daughter against the father under the Domestic Violence Act, 750 ILCS 60/101, et seq. The mother and father divorced in 2020, and the order of protection was sought in 2021 on the grounds that the father had sexually abused his daughter over a number of years, beginning in the fourth grade. The trial court was concerned with the daughter reliving the trauma through testimony (she was 18 years old at the time the hearing took place) and invoked the in camera provision of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., which allows a judge to question a child in chambers regarding the allocation of parental responsibility. The father’s attorney did not have an opportunity to cross-examine the child, and the trial court granted the plenary order of protection. The father appealed, and the appellate court reversed. The in camera interview violated the father’s due-process rights because the only evidence of the sexual abuse was the daughter’s testimony and the father was prevented from challenging her credibility. The trial court could have permitted the child to testify via Zoom so she would not have to be in the same room with her father during her testimony or in the guardian at litem’s office with the GAL present for her support. The court remanded for a new evidentiary hearing.

Trial Court’s Decision To Deny Father’s Request To Compel Deposition of Minor Child Affirmed

The father in Doe, supra, sought the deposition of his 18-year-old daughter who accused him of sexual abuse in a petition for an order of protection, which the trial court denied. The father argued that his daughter made serious allegations of sexual abuse against him over a number of years (see above) and that he had a right to depose her ahead of time. The trial court reasoned that it did not want to retraumatize the daughter both through a deposition and potential testimony. The mother had filed a motion for an in camera interview with the child, which the trial court ultimately granted, and the in camera interview was conducted. The father appealed, and the appellate court affirmed the trial court’s denial of his deposition motion. A trial court has great latitude in ruling on discovery matters. Minors are entitled to special protections in the discovery process, and the trial court reasonably refused to allow the daughter to be deposed due to concerns that she would be retraumatized. It was noted that the father was able to review the daughter’s victim impact statement and police reports before the trial. The court also stated that its decision was based on a highly deferential standard of review and that its holding should not be interpreted to prohibit the deposition of all minors in cases alleging sexual abuse.

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