Top Ten Family Law Flash Points of 2023

6. Trial Court’s Granting of Relocation from Illinois to Colorado Upheld

In Kenney v. Strang, 2023 IL App (1st) 221558, the husband appealed the trial court’s granting of the wife’s petition to relocate twins from Illinois to Colorado. The husband argued, in addition to the argument that the court misapplied the relocation factors, that the wife had failed to comport with the notice requirement under the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq. The appellate court did not find error with the trial court’s reasoning that the notice requirement did not apply because the children were constantly being moved from Illinois to Colorado, and the husband knew the wife was taking the twins to stay in Colorado on the day she left and that there was no particular planned date for their return. The evidence suggested that the wife herself may not have known that she intended to permanently relocate to Colorado until a month or two later. The children had a better support system and healthier environment with their maternal grandparents in Colorado, the wife had a deeper history and quality relationship with the children, and it was uncontested she was their primary caregiver.

7. 59-Year-Old Adult Putative Son’s Action for Paternity Allowed To Proceed Under 2015 Parentage Act

The adult putative son of blues musician Buddy Guy filed a petition to establish parentage. In re Parentage of Miller, 2023 IL App (1st) 210774. At the time he filed his petition he was 59 years old, and Buddy Guy was 83 years old. His petition sought no monetary relief, and Guy did not challenge the DNA test results that established biological paternity. The trial court found §607(a) of the Parentage Act of 2015, 750 ILCS 46/607(a), which permits a petition to establish parentage to be commenced at any time, even after the child becomes an adult, but only if the child initiates the proceeding, to be unconstitutional as applied to the facts. The trial court dismissed the petition to establish parentage, and the appellate court reversed. The appellate court held that there was no dispute that §607 of the 2015 Act authorized the putative son’s lawsuit. On appeal, Buddy Guy argued for an equitable extension of the statute of limitations of the former Parentage Act of 1984, meaning that the putative son would have had two years after the effective date of that statute to establish parentage and thereafter be prohibited from bringing suit. However, Guy offered no cases or other authority to support such an equitable extension argument, and the court held that such an equitable extension was not appropriate.

8. Witnesses Are Prohibited from Discussing Testimony with Counsel Once They Take Witness Stand

A civil party does not have a right to consult with his or her counsel at any time about any matter during the course of his or her testimony. Reynolds v. Alabama Department of Transportation, 4 F.Supp.2d 1055 (M.D.Ala. 1998). In In re Marriage of Keegan, 2022 IL App (2d) 190495, the appellate court noted that Reynolds was not precedential but agreed with the summation of its decision and applied it. Further, a testifying party is permitted to engage in nontestimonial matters with counsel during the period of testimony, including strategizing, developing tactics, and generally managing the case. The court also noted that even in criminal proceedings, a defendant does not possess the right to discuss testimony with his or her counsel while that testimony is in progress.

9. Denial of Motion To Dismiss Lawsuit Filed by Testator’s Children To Enforce a Judgment for Dissolution of Marriage Entered 36 Years Earlier Affirmed

In In re Marriage of Krilich, 2023 IL App (1st) 221198, the testator’s children filed a petition against the representatives of the testator’s estate to enforce the terms of a 1985 judgment for dissolution of marriage, specifically the provision that provided that both parties agreed to execute wills leaving not less than 50 percent of their respective estates to children or grandchildren of their marriage. The parties to the divorce judgment had six children, and at issue when the testator died was the distribution of an estate valued in the hundreds of millions of dollars. The testator, who resided in Florida at the time of his death, left his estate to a pass-through trust of which his second wife was the primary beneficiary and his children the remainder beneficiaries. The testator’s representatives filed a motion to dismiss for lack of personal and subject-matter jurisdiction, which the trial court denied. The representatives sought an interlocutory appeal, which was granted, and the appellate court affirmed the trial court’s ruling. The trial court’s jurisdiction is predicated on a judgment in which it explicitly retained jurisdiction to enforce. Further, the relief sought by the children in this proceeding was not similar to the pending probate action in Florida. While the representatives argued that the trial court had no personal jurisdiction over them, they were not being sued as individuals but rather in their capacity as representatives of the testator’s estate, and an action against a decedent that arises in his or her lifetime lies against the administrator in his or her representative capacity. The representatives also argued that the trial court lacked quasi in rem jurisdiction over the testator’s estate, but because the court retained personal jurisdiction over the testator to enforce its judgment, quasi in rem jurisdiction was not required for the case to proceed.

10. Trial Court’s Finding of Residence Owned by Husband Prior to Marriage and Transferred to Land Trust with Wife as Beneficiary as Marital Property Affirmed

The husband appealed the trial court’s ruling that the home he owned prior to the marriage, and which would later become the marital residence, was marital property in In re Marriage of Klose, 2023 IL App (1st) 192253. During the marriage, the parties retained the services of an estate planning attorney who created a land trust to which the husband transferred ownership of the home and of which the wife was named the beneficiary, as well as reciprocal trusts for the parties. The estate planning attorney testified at trial regarding the creation of the trusts. He also testified that the husband contacted him when the marriage was deteriorating and attempted to remove the wife as the beneficiary of the land trust. The trial court found that the husband’s meetings with the estate planning attorney to potentially remove the wife as the land trust’s beneficiary evidenced that he understood he had gifted the home to the wife. The finding was further corroborated by the estate planning attorney’s testimony. The husband presented no evidence refuting the estate planning attorney’s testimony or establishing that he was forced to sign the trust documents. Therefore, the trial court’s ruling was not against the manifest weight of the evidence.