IICLE Family Law Flash Points - March 2022

Trial Court’s Finding of Non-Cohabitation by Maintenance Recipient Reversed

In In re Marriage of Churchill, 2022 IL App (3d) 210026, the husband filed to terminate maintenance for the second time based on allegations that the wife was involved in a continuing, resident, conjugal relationship with her boyfriend. The trial court denied the petition, and the appellate court reversed, relying on the facts that the wife was involved in a three-and-one-half-year relationship and the couple spent a significant period of time together on a regular basis, were in a monogamous sexual relationship, traveled together, and spent holidays together. The facts showed that the couple did not share a joint bank account. The wife’s boyfriend traveled a significant period of time for work, considered his permanent residence Texas, and had downloaded some dating apps while they were dating. The couple shared an account at a jewelry store, at the veterinarian, and at an auto shop. They had also exchanged rings. There was conflicting evidence on the symbolism of the rings and how often they were worn. The appellate court stated: “The exchange of rings is a significant fact to support a finding of a de facto marriage.” 2022 IL App (3d) 210026 at ¶42. The appellate court disagreed with the trial court’s not interpreting the rings as a symbol of engagement or marriage. It also stated that the wife’s explanation of why she received packages at her home with her boyfriend’s last name (that it was a signal to her that she should not open the package until her boyfriend was with her) “makes zero sense.” Id. As a result, the case was reversed and remanded.

Admission of §604.10(b) Expert’s Evidence Deposition by Trial Court Reversed

In a procedurally complex parentage case, the trial court held a trial on the issue of parental responsibilities and parenting time. In re Parentage of K.E., 2022 IL App (5th) 210236. During the trial, the court admitted the evidence deposition of the expert appointed pursuant to §604.10 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., over the mother’s objection due to her counsel’s inability to appear at such deposition and, therefore, the expert was not subject to cross-examination. The trial court admitted the deposition transcript, and the appellate court reversed. At issue was the fact that the father’s counsel scheduled the deposition five days after notice was sent, which the court held was unreasonable given the circumstances of the case. The court was sympathetic to the father’s counsel’s attempts to accommodate opposing counsel’s schedule to mutually agree on a date and time for the deposition but stated that Supreme Court Rule 201(k) should have been invoked instead of the father’s counsel moving forward ex parte with the deposition after failure to agree on a date and time. The court also noted that the trial court had the authority to stay the proceedings until a new deposition could be scheduled, which would have allowed the mother’s counsel to cross-examine the witness.