Oct 2, 2018

IICLE Family Law Flash Points - October 2018

1.  Judgment for dissolution vacated due to trial court recusing itself, subsequently reconsidering the recusal, and rendering a decision at trial.  At issue was whether a trial judge has the authority to reconsider its own recusal. The issue arose when the trial court announced in open court that his nephew was now working at the law firm representing wife.  The judge orally recused himself and entered an order transferring the case to another judge.  When the matter came before the court again for a pre-trial conference, the judge announced that he was no longer recusing himself. There was a discrepancy over whether an actual recusal order was ever entered.  Husband then brought a motion for substitution for cause which was denied.  The case proceeded to trial and a judgment was entered which husband appealed.  The Second District held that once a judge recuses himself or herself, the judge has no power to enter further substantive orders absent an agreement by counsel for the judge to remit the recusal.  Therefore, the judge cannot reconsider his or her own recusal because that would be a substantive decision.  Therefore, the entire judgment for dissolution of marriage was vacated and remanded.  In re the Marriage of Peradotti, 2018 IL App (2d) 180247

2.  Supervised parenting time order upheld.  Mother filed an emergency motion to restrict father’s parenting time due to father’s alleged controlling and angry behavior.  After a lengthy hearing which included testimony from the parties’ 15 year old daughter, the court granted mother’s petition and ordered supervised visitation.  Father appealed arguing that mother did not meet her burden of proof that his behavior seriously endangered the children.  The Appellate Court upheld citing three specific instances of father’s behavior.  The record contained evidence that father responded to heated situations by using profanity, speaking poorly of the children’s mother, and threatening dangerous punishment, including telling the daughter to get out of the car and walk home while they were on the interstate.   In re the Marriage of Mayes, 2018 IL App (4th) 180149.

3.  Company deemed to have receipt of Notice to Withhold for purposes of statutory penalty. Wife filed a third-party complaint against her husband’s employer (he was employed by a family-owned business which his father owned) for failure to comply with a Notice to Withhold.  The trial court found the company had been served with the Notice and assessed a $66,700 penalty.  The company appealed and wife cross-appealed seeking a higher penalty amount.  The Appellate Court affirmed the finding the company had received noticed.  The company had “refused” service of the certified mailing containing the Notice to Withhold, but had received actual notice when the Notice to Withhold had been sent via regular mail to the attention of “payroll.”  The trial court also noted that the father knew that the couple was getting divorced, that the husband would have to pay child support, and the name of the law firm representing the wife.  The Court modified the date of receipt to the date the “refused” certified mailing was sent to the company.  The Court reversed in part with respect to the calculation of the $100 per day penalty and remanded to the trial court for the imposition of $100 per-day penalty limited to the days the wife went without the support payment after the statutory seven business day grace period expired.  In re the Marriage of Schmidgall, 2018 IL App (3d) 170189.

4.  Fair and reasonable disclosure in a premarital agreement does not mean “complete” disclosure.  Wife challenged the validity of a premarital agreement on the grounds that it was unconscionable; that there was not a fair and reasonable disclosure of property by husband; that she did not execute a written waiver of disclosure; and that she did not have adequate knowledge of husband’s assets.  It was not contested that there was no written waiver by wife to her right to disclosure of the property or financial obligations of husband beyond the disclosure provided.  The disclosure did not include husband’s earnings from a business, his various cars, and furniture; and it did not place values on some disclosed assets such as husband’s home and farmland that he owned.  However, the statutory requirements of a fair and reasonable disclosure requires less than a complete disclosure, and the failure to disclose any particular asset is not fatal to the enforcement of the agreement.  Wife had the burden of proving husband’s disclosure was not fair and reasonable.  Because she had lived in the home for six years prior to the execution of the agreement, she was aware of husband’s lifestyle, cars, and the furniture.  Additionally, because she failed to provide the court with values for the property that was disclosed but not valued, there was no evidence those assets were of any material value at the time the agreement was executed.  Because wife had not met her burden proving husband’s disclosure was not fair and reasonable, the Court did not address the issue of unconscionability. In re the Marriage of Woodrum, 2018 IL App (3d) 170369.

5.  Premarital agreement which did not create marital property upheld.  Wife appealed the trial court’s entry of a judgment for dissolution of marriage on the grounds that discovery had not been completed and the trial court did not make specific findings regarding the parties’ property.  The Appellate Court affirmed the judgment noting that the trial court did make findings with respect to the property.  The trial court found there was no marital property to divide because the premarital agreement did not create any marital property and all property was non-marital.  The Court also affirmed the trial court’s award of temporary maintenance to wife during the pendency of the case because the premarital agreement only had mutual waivers of maintenance upon divorce or dissolution of marriage contemplated by the agreement.   In re the Marriage of Woodrum, 2018 IL App (3d) 170369.

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