Case Law


Compliance with Statutory Prerequisites Is a Different Issue than Whether a Trial Court Has Subject-Matter Jurisdiction

In In re Marriage of Armstrong, 2016 IL App (2d) 150815, a case brought before the Second District on a Uniform Interstate Family Support Act (UIFSA) claim, the ex-husband appealed the denial of his motion to dismiss the ex-wife’s postjudgment claim concerning modification of support on the grounds that the original Illinois trial court order modifying his support was void for lack of subject-matter jurisdiction. The parties had divorced in Connecticut, but both had subsequently relocated to DuPage County. The husband enrolled the Connecticut judgment in Illinois, and the Illinois trial court subsequently modified his support obligation before the husband challenged the validity of the order. The appellate court affirmed the trial court’s denial of his motion to dismiss, reiterating the line of cases providing that although §211 of UIFSA (750 ILCS 22/211) uses the terminology “jurisdiction,” it must be understood only as a procedural limit on when the trial court may modify a support order issued in another state, and not a precondition to the exercise of the court’s inherent authority since the trial court is vested with authority to hear justiciable matters through the Illinois Constitution. See McCormick v. Robertson, 2015 IL 118230, ¶18, 28 N.E.3d 795, 390 Ill.Dec. 142.

Postjudgment Modification of Parental Decision-Making Upheld

In the highly litigated postjudgment modification trial In re Marriage of Wendy LD, 2016 IL App (1st) 160098, the court ultimately modified sole parental decision-making to allocate it from the mother to the father. The trial court heard over 30 days of testimony, including testimony from the court’s expert evaluator, who issued an original report and update, and the mother’s own expert evaluator. The original report of the court’s evaluator recommended decision-making be modified from the mother to the father, but the updated report opined that the mother had shown improvement in taking responsibility for her actions and acknowledging that her actions harmed the children, and therefore a modification was not necessary. The child representative also recommended that decision-making stay with the mother. However, the trial court decided that a modification was in the best interests of the children. The appellate court affirmed, noting that the trial court was in the best position to make judgments with respect to the parties’ credibility (the trial court noted the mother was not credible throughout her testimony) and that the trial court was not obligated to follow the recommendations of the expert evaluator or child representative. In its opinion, the trial court wrote that the biggest factor that weighed in favor of the modification was that the father was more likely to facilitate a relationship between the mother and the children than the mother was with the father.

Illinois Had Personal Jurisdiction Under the Parentage Act over Mother Who Resided in North Carolina

In In re Parentage of W.J.B., 2016 IL App (2d) 140361, after the father filed a petition to establish a parent-child relationship, the mother filed a motion to dismiss on the basis that Illinois did not have personal jurisdiction over her. The trial court disagreed and entered a preliminary injunction preventing the mother from removing the minor child from Illinois. The mother, a resident of North Carolina, filed a petition for leave to appeal, which was granted on the sole issue of jurisdiction. The appellate court affirmed based on §201(a) of UIFSA (750 ILCS 22/201(a)), which provides that Illinois may exercise personal jurisdiction over a nonresident if the child resides in Illinois as a result of the acts or directives of the nonresident. In this case, the child came to reside in Illinois after the mother notified the child’s paternal grandparents that she was having surgery and needed care for the child during her recovery. The paternal grandmother retrieved the child, and the child proceeded to stay in Illinois for five and one-half months even though the mother returned to work three days after the surgery and made no effort to retrieve him until she was served with the father’s petition.

Denial of Children’s Name Changes Upheld

In In re Marriage of Piergari, 2016 IL App (2d) 160594, ___ N.E.3d ___, 409 Ill.Dec. 174, the wife filed an interlocutory appeal after she was enjoined from hyphenating the parties’ three children’s last names during the pendency of the divorce case. The wife had filed a petition under §21-101 of the Code of Civil Procedure (735 ILCS 5/21-101) claiming that she anticipated resuming the use of her maiden name and that it would facilitate her ability to register the children for school, appointments, and activities if they shared her last name postdivorce. She had also established a web page for one of the children using the hyphenated name when the child had undergone surgery. Because the mother could not prove by clear and convincing evidence that the change in name was necessary to serve the children’s best interests, as required by statute, the trial court properly denied the mother’s petition and enjoined her from using the hyphenated name on any official records. Also, the appellate court harshly struck down the mother’s argument that, merely because she had 80 percent of the parenting time, she would be the parent responsible for enrolling the children in their extracurricular activities since the parties had joint decision-making.

Common-Law Claims Based on Years of Premarital Cohabitation Denied

In In re Marriage of Allen, 2016 IL App (1st) 151620, 62 N.E.3d 312, 407 Ill.Dec. 67, the parties to a divorce action had been married for less than seven months when they both cross-petitioned for a dissolution of marriage. Shortly before trial, the wife petitioned the court to amend her petition to include common-law rights based on 13 years of premarital cohabitation based on the First District Appellate Court opinion Blumenthal v. Brewer, 2014 IL App (1st) 132250, 24 N.E.3d 168, 388 Ill.Dec. 260. The trial court denied her petition, and the appellate court affirmed, holding that the Illinois Supreme Court case Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204, 31 Ill.Dec. 827 (1979), did not allow such claims to proceed because it rejected equitable or quasi-contract claims between unmarried couples of the opposite sex. This decision is consistent with the Illinois Supreme Court’s decision in Blumenthal v. Brewer, 2016 IL 118781, which ultimately overturned the First District’s opinion.
Thank you for this month’s contributions to IICLE Family Law, Donald C. Schiller & Michelle A. Lawless, Schiller DuCanto & Fleck LLP.

In re Marriage of Goesel, 2017 IL App (3d) 150101, January 24, 2017, Will Co., CARTER, Reversed and vacated; remanded. In dissolution proceedings, wife filed petition for interim attorney fees. Court found that neither party had current ability to pay attorney fees and ordered husband’s attorney to disgorge $40,952 of attorney fees that husband had paid to her. Court did not have discretion to consider wife’s assets when determining her ability to pay attorney fees. Court within its discretion in refusing to order wife to sell real estate to pay attorney fees. When retainer money is available to be refunded to client under retainer agreement as to time of notice of motion for interim attorney fees, those funds are also “available” for disgorgement under Section 501(c)(1)(3) of Marriage and Dissolution of Marriage Act. A court may not require payment of interim attorney fees by disgorgement of retainer funds previously paid to attorney when, prior to attorney receiving notice of petition for interim fees, attorney has already earned those funds. (HOLDRIDGE and SCHMIDT, concurring.)

In re Parentage of A.H., 2017 IL App (1st) 133703, January 20, 2017, Cook Co., 5th Div., LAMPKIN, Affirmed and remanded. In action against biological father, mother filed petition to recognize and enroll a foreign judgment (in Thailand) that established the father’s paternity of triplets, who were conceived through method of assisted reproduction, and imposed support obligations. Court properly extended comity to Thai judgment as it was not contrary to Illinois public policy. Father failed to show that judgment was obtained by fraud or that he was denied fair opportunity to present defense in Thai proceeding. (GORDON and REYES, concurring.)


Wife Not Awarded Survivor Benefit Under Military Retirement Pension

In In re Marriage of Coviello, 2016 IL App (1st) 141652, ___ N.E.3d ___, 408 Ill.Dec. 343, the appellate court affirmed a trial court’s decision to not order the husband to maintain the wife as a survivor beneficiary under his federal military retirement pension, and instead made the wife and their child beneficiaries of a $400,000 life insurance policy. The appellate court noted that it did not interpret the trial court’s decision to mean that the survivor benefit was not marital property. Rather, it favored an interpretation that meant it was marital property but should not be awarded to the wife. Under the husband’s pension, the wife would only receive the monthly benefit so long as the husband was alive. If she remarried prior to the age of 55 she would no longer be entitled to the benefit. Also, if she died before the husband, her estate would not receive the benefit. Furthermore, the husband could not name any future spouse as a survivor beneficiary, even if he remarried and was still married at the time of his death. Since the survivor benefit was simply not divisible under federal law, the court had an all-or-nothing decision to make and decided the most equitable result was to deny the wife the survivor benefit but make her and the minor child beneficiaries of the existing life insurance policy.

Husband’s Power of Attorney and the Recipient of Sales Proceeds of Marital Business Properly Joined as Third-Party Defendant in Divorce Case

In In re Marriage of DiFiglio, 2016 IL App (3d) 160037, ___ N.E.3d ___, 408 Ill.Dec. 302, the husband’s brother-in-law, who was also a resident of California and his power of attorney, received $575,000 of the sales proceeds of a marital business during the pendency of his divorce case. The wife successfully moved to join the brother-in-law as a third-party defendant. He subsequently moved to dismiss the third-party complaint against him for lack of personal jurisdiction, which was denied. The appellate court affirmed. Illinois had personal jurisdiction because both the requirements of the long-arm statute (735 ILCS 5/2-209) were met and due process was satisfied. The brother-in-law received possession and control of the sales proceeds of a company in Illinois and those proceeds were the subject of the wife’s third-party complaint. He also traveled to Illinois for the sale of the company and to appear in court with the husband as well as keeping in regular communication with the husband. He had also acted as the husband’s attorney-in-fact pursuant to an Illinois power of attorney drafted in Illinois.

Bifurcated Judgment Upheld

In In re Marriage of Breashears, 2016 IL App (1st) 152404, the trial court properly granted the husband’s emergency petition to bifurcate a judgment for dissolution of marriage due to his terminal illness. The husband testified at the hearing that he wished to marry his girlfriend, whom he had been in a relationship with for seven years and dispose of his estate free of his wife’s influence. The evidence showed the parties had been separated for approximately ten years. The trial court granted the bifurcated judgment and the husband died less than a month later. The court relied on Copeland v. McLean, 327 Ill.App.3d 855, 763 N.E.2d 941, 261 Ill.Dec. 692 (4th Dist. 2002), and held that the impending death of a party can represent an appropriate circumstance for the entry of a bifurcated judgment. The court also noted that the trial judge was in the best position to determine the effect that the bifurcated judgment would have on its ability to dispose of the marital estate and that it did not abuse its discretion when granting the emergency petition.

Ex-Wife Not Entitled to Percentage of Ex-Husband’s Income Tax Refund as Child Support

In In re Marriage of Eastburg, 2016 IL App (3d) 150710, ___ N.E.3d ___, 408 Ill.Dec. 276, the ex-wife filed a motion to modify child support and the parties subsequently stipulated to an agreed increase. She then immediately sought 28% of the ex-husband’s 2014 tax refund. The trial court denied and the appellate court affirmed. The record showed that the ex-husband intentionally over-withheld taxes each year and received a large tax refund. The ex-wife had his 2014 W-2 and 2014 tax return at the time she stipulated to the increase in child support payments. The question was not whether the ex-husband’s withholding on his paycheck was correct, but rather whether his child support payment was properly calculated based on his actual net income. Because the parties stipulated to his support obligation after the close of discovery and after receipt of his tax return, the trial court did not err in computing his net income, and if his net income did not adjust for the overwithholding, that was the ex-wife’s error, not the court’s.

Indirect Civil Contempt Order that Did Not Contain a Purge Provision Was Void

In In re Marriage of Knoll, 2016 IL App (1st) 152494, a highly contested postjudgment visitation proceeding in which the father alleged both visitation abuse and indirect civil contempt against the mother due to several alleged missed visitation periods by him including regular weekend time, Father’s Day, winter break, and summer vacation time, the trial court found that the mother was both in indirect civil contempt of court and had engaged in visitation abuse. The mother appealed. The trial court heard significant testimony from both parties regarding each specific period of time that alleged missed visitation occurred and the appellate court supported the trial court’s findings that it was concerned that the mother permitted the child to “pick and choose” when he would visit with his father and that the mother had allowed the child to play in a baseball game after being too ill to visit with his father the prior day. However, a valid indirect civil contempt order must contain a purge provision which lifts the sanction when the contemnor complies with the order. Because the contempt order did not contain a valid purge, but rather just provided for the parties to agree upon make-up visitation time, the order was void. The father’s participation was a necessary prerequisite to establishing the make-up parenting time, and prior case law dictates that it is improper to require action by a third party to effectuate a purge.

Finding of Visitation Abuse Upheld

In In re Marriage of Knoll, supra, the trial court found the mother to have been engaged in visitation abuse pursuant to §607.1 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., and the appellate court affirmed. The trial court ordered make-up visitation for the periods of time the father was unable to exercise his visitation, which was a remedy that was expressly authorized by §607.1.

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In re Marriage of Schomburg, 2016 IL App (3d) 160420, December 14, 2016, Tazewell Co., CARTER, Affirmed. (Court opinion corrected 1/6/17.) Court properly denied husband’s request for reimbursement of monies garnished from his severance and bonus checks, which had been paid to his 1st ex-wife for child support and child support arrearages via child support lien was requested by IDHFS on husband’s subsequent earnings. There was no indication there were any competing claims on earnings at time husband’s former employer paid out garnished wages from severance and bonus checks. There is no legal or factual justification for husband’s claim that amount garnished was improper, or for his claim for reapportionment to distribute between his 2 current child support orders. (O’BRIEN and WRIGHT, concurring.)

In re Marriage of Kane, 2016 IL App (2d) 150774,  December 29, 2016, DuPage Co., SPENCE, Affirmed. Dispute over fees sought by husband’s attorney, who represented husband for portion of dissolution proceedings. Attorney sought award of $48,000, which was in addition to $37,500 he had already been paid; after evidentiary hearing, court awarded attorney $12,500 on his petition against husband, and denied attorney’s request for contribution from wife. Although attorney provided line-by-line itemization of his fees, court was not required to provide such itemization for its reduction, and court provided numerous reasons for reduction, including absence of progress in case and that attorney participated in only 2 contested hearings. (McLAREN and SCHOSTOK, concurring.)

In re Marriage of Allen, 2016 IL App (1st) 15162, December 29, 2016, Cook Co., 4th Div., McBRIDE,   Affirmed. Husband and wife were married for less than 7 months when they cross-petitioned for dissolution of marriage. Shortly before trial, wife sought to amend petition with common law claims based on 13 pre-marital years of cohabitation. Given legislature’s ongoing ban on common law marriage, court was within its discretion in denying wife’s motion, refusing wife’s offer of proof, and in awarding property and maintenance, upon entry of judgment of dissolution, on basis of brief marriage. Parties had option to marry at any point during 13 years preceding their wedding. (GORDON and REYES, concurring.)

In re Parentage of I.I., 2016 IL App (1st) 160071,  December 23, 2016,  Cook Co., 5th Div., GORDON, Affirmed in part and vacated in part. Court granted mother’s motion to modify child support, for parties’ one minor child, from $100 to $3,000 per month based on father’s financial circumstances. Court within its discretion in denying father’s request for continuance of hearing, given father’s repeated lack of responsiveness to discovery requests and defiance of discovery orders. Court within its discretion in denying father’s motion to reopen proofs, as court found father not credible, and only additional evidence would have been father’s own testimony, and father was absent on 2nd day of hearing. Court found that it could not determine father’s income and thus used section 505(a)(5) to set child support based on child’s needs. Court properly ordered father to provide health insurance for child; irrelevant that mother already had insurance policy. Court had authority to order retroactive child support at modified higher amount only starting on date mother filed petition to modify child support. (LAMPKIN and REYES, concurring.)

Lynn v. Brown, 2017 IL App (3d) 160070, January 12, 2017, Peoria Co., CARTER,  Affirmed. Court entered plenary order of protection against Respondent. As Respondent failed to file transcript of order of protection hearing, and common law record does not include docket entries, court presumes that order entered conformed to law and had sufficient factual basis. Court appeared to base its initial decision to enter emergency OP on allegations in petition that parties had a contentious relationship culminating in incident of domestic violence. Respondent’s concern that OP will prohibit from seeing his child is addressed by parties’ agreed visitation order allowing for 3 visits per week. (SCHMIDT, specially concurring; McDADE, dissenting.)

Hernandez v. Cardoso, No. 16-3147, December 22, 2016, N.D. Ill., E. Div. In application under Hague Convention filed by plaintiff-Mexican father seeking return of his son under circumstances where mother had taken son from Mexico and relocated herself and son to Chicago, Dist. Ct. did not err in denying father’s application, after finding that son faced grave risk of physical or psychological harm if son were returned to father’s custody in Mexico. Under Hague Convention child abducted in violation of rights of custody must be returned to child’s country of habitual residence unless certain exceptions exist, and mother established one of said exceptions to required return of child where Dist. Ct. found that mother was credible when she testified that husband physically abused her in front of son, and that such conduct posed great risk of physical or psychological harm to son.

In re Marriage of Armstrong, 2016 IL App (2d) 150815, December 29, 2016,  DuPage Co., McLAREN, Affirmed. (Court opinion corrected 1/17/17.) Parties were married in Illinois; Connecticut court entered judgment of dissolution and then ordered husband to pay child support and spousal support. Parties later relocated to DuPage County where Circuit Court granted husband’s petition to enroll Connecticut judgments and, upon husband’s motion to modify child support and maintenance, lowered amount but extended time period for paying maintenance. In filing motion to modify support and maintenance, husband raised a claim falling within general class of cases trial court had inherent power to hear and decide, and thus had subject-matter jurisdiction over husband’s motion. Thus, court properly denied his Section 2-1401(f) motion to vacate court’s judgment which increased period of time to pay maintenance. (SCHOSTOK and SPENCE, concurring.)

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Imputation of Income to Husband Was Appropriate When Setting Maintenance Award

In In re Marriage of Blume, 2016 IL App (3d) 140276, in setting a maintenance award, the trial court imputed income to the husband of approximately $70,000 from farming that he had historically earned during the marriage. The husband appealed claiming that the farming income varied from year to year, was not guaranteed, and that he had not planted a current crop that would yield additional income. The appellate court affirmed the trial court. The evidence showed that the husband was a farmhand earning a salary of $42,000 per year while the wife earned $10.60 per hour working at a nursing home. The husband also independently farmed crops prior to the divorce and had earned between $70,000 and $78,000. The parties’ marital residence, where the husband resided, was paid for by his employer, as were most of the utilities and a car that he used for both work and personal reasons. The court stated it was proper to impute the husband’s farming income for purposes of setting maintenance because the trial court should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work. The trial court had also found that the husband had voluntarily discontinued farming in light of the divorce and in an attempt to evade his support obligation. The appellate court also affirmed the amount of the maintenance award which was $2,000 per month.

New Maintenance Guidelines Under January 1, 2015, Amendments to IMDMA Maintenance Provision Should Not be Applied Retroactively

In In re Marriage of Cole, 2016 IL App (5th) 150224, the trial court ordered the husband to pay the wife $2,088 per month in maintenance. The husband appealed claiming that the court should have applied the revised Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., maintenance guidelines that took effect January 1, 2015, which would have resulted in an award of $1,328 per month. In this case, the hearing took place and proofs closed on October 24, 2014, before the new maintenance statute took effect. The trial court took the case under advisement and did not rule until after January 1, 2015. Just because the matter was taken under advisement but not ruled on until 2015 does not warrant retroactive application of the law.

Inadequate Bystanders Report Renders Record on Appeal Inadequate for Appellate Court To Rule

In In re Parentage of G.E., 2016 IL App (2d) 150643, the mother was found in indirect civil contempt for her failure to bring the minor child to Illinois for visitation with the father over the Thanksgiving holiday. The proceeding was not transcribed, but the court issued an order holding the mother in contempt and sentenced her to jail with a purge amount of $10,000. The court also denied the mother’s motion to stay the proceedings on the same day. Several months later, the court and counsel appeared and put on the record a summary of what happened at that hearing because the court did not want to certify the bystander’s report that was submitted. The mother then submitted this record as her bystander’s report in the appellate court. However, the report was improper because Supreme Court Rule 323(c) contemplates a collaborative process for the generation of a bystander’s report, including that the appellant serve the appellee with a copy of the proposed report. The record showed that the father was not in court when the retroactive summary record of the hearing took place and there was no indication that the mother provided the father with her proposed bystander’s report. Therefore, the trial court erred when it certified the bystander’s report. Because the report was invalid, the judgment of the trial court was affirmed.

UIFSA Does Not Create a Duty of Support and Cannot be Utilized To Establish an Initial Child Support Order if Illinois Statutory Authority Does Not Provide for such an Order

In Department of Healthcare and Family Services v. Arevalo, 2016 IL App (2d) 150504, the Department of Healthcare and Family Services (Department) filed a uniform support petition on behalf of a mother, a resident of Mexico, against the father of their two children, a resident of Illinois. The record showed that the mother and father were married in Mexico in 1996. Section 303 of the Uniform Interstate Family Support Act (UIFSA), 750 ILCS 22/100, et seq., requires a trial court to rely upon the law of the forum state to determine whether the respondent owes a duty of support. Because no dissolution of marriage proceeding was on file, the IMDMA did not grant authority for a support order to be entered. The Illinois Parentage Act of 2015, 750 ILCS 46/101, et seq., did not apply because no determination of parentage was being sought and any determination would involve a custody judgment which is prohibited by the UIFSA. Finally, the Illinois Public Aid Code, 305 ILCS 5/1-1, et seq., also did not apply because the Department was not enforcing a child support obligation. Therefore, the trial court properly dismissed the Department’s petition.

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In re Marriage of Eastburg, 2016 IL App (3d) 150710, October 13, 2016, Knox Co., SCHMIDT, Affirmed. In post dissolution proceedings, husband’s federal income tax refund for 2014 was part of his net income for 2014, not an addition to it. Thus, husband’s overwithholding did not affect his current child support computation, and court properly denied wife’s motion to modify child support. Wife failed to disclose a straightforward account of her own income, and thus failed to support her argument that there was a substantial disparity in parties’ incomes to justify modification of wife’s obligation to pay minors’ uninsured medical expenses. (O’BRIEN, concurring; CARTER, specially concurring.)

In re Marriage of Rivera, 2016 IL App (1st) 160552, September 30, 2016, Cook Co., 4th Div., HOWSE, Certified question answered. The settlement proceeds received from a wrongful conviction action are marital property when the coerced confession and initial conviction occurred before the marriage, and the conviction was reversed during the marriage. The date of the completed tort of malicious prosecution determines whether lawsuit is marital property or nonmarital property. Petitioner did not have a property interest in his lawsuit until appellate court vacated his murder conviction in 2011, which was during the parties’ marriage, and thus, because lawsuit accrued during the marriage, it is marital property subject to distribution pursuant to factors set forth in Section 503 of Dissolution Act. (McBRIDE and BURKE, concurring.)

In re Marriage of Knoll, 2016 IL App (1st) 152494, September 30, 2016, Cook Co., 5th Div., GORDON, Vacated in part and affirmed in part. Court found Petitioner in civil contempt for depriving Respondent of his visitation rights with their minor child following dissolution of parties’ marriage. Court determined that husband was denied his visitation instead of voluntarily electing to forego it, as wife contended. Court’s civil contempt order was invalid as it did not contain a purge provision, or set forth conditions upon which wife may dissolve indirect civil contempt. Court properly found that, under Section 607.1 of Dissolution of Marriage Act, wife had committed visitation abuse for 2 days, and court properly ordered make-up visitation for periods of time in which husband was unable to exercise his parenting time, which is a remedy expressly authorized by statute.(HALL and REYES, concurring.)

In re Marriage of Liszka, 2016 IL App (3d) 150238, September 27, 2016, Will Co., LYTTON, Affirmed in part and reversed and remanded in part. In dissolution action, prior to trial, court barred husband’s expert from testifying as to value of a corporation started by and owned by the parties, as a discovery sanction. Court abused its discretion in barring husband’s expert. Although expert’s opinions and report were not disclosed until 4 days prior to trial, late disclosure was a result not of husband’s conduct, but of wife’s failure to provide husband and his expert with necessary financial information necessary to reach conclusions as to value of corporation. Court erred in imputing gross monthly income of $17,500 to husband, for child support purposes, as there was no evidence presented that he could obtain a job at that salary based on his qualifications. Court did not err in refusing to treat wife’s attorney fees as advances against the marital estate, as her attorney fees were significantly higher than husband’s, and wife’s higher fees were at least partially incurred during collaborative process. Court properly denied husband’s request for maintenance, based on court’s review of applicable factors, as husband was in good health, age 44, had a college degree, and had already started another business of his own. (WRIGHT, concurring.; McDADE, concurring in part and dissenting in part.)

PNC Bank v. Pattermann, 2016 IL App (3d) 150568, September 23, 2016, 3d Dist., Will Co., O’BRIEN, Certified question answered. A former spouse does not, as a matter of law, lose her homestead exemption in property by virtue of a divorce decree that grants her an interest in the property but does not address or dispose of the former spouse’s homestead interest in the property. (HOLDRIDGE and WRIGHT, concurring.)

In re Marriage of O’Malley, 2016 IL App (1st) 151118, Nos. 1-15-1118, 1-15-2908 (cons.), Fifth Division, September 23, 2016, Cook Cty, affirm in part and vacate in part. After judgment of dissolution was entered, which incorporated MSA signed by parties, parties continued to litigate terms of MSA. Court abused its discretion in finding husband in “indirect civil contempt” for failing to abide by MSA’s deadline for selling marital residence or buying out wife’s interest in the residence and its orders as to distribution of proceeds from sale of marital residence and awarding wife attorney’s fees. Court properly entered alternative finding that husband was in breach of MSA, and awarding damages (prejudgment interest and $64,229 in attorney’s fees and costs) to wife.Court was not modifying terms of MSA, but only enforcing terms of MSA, when it calculated amount due to wife by using 2008 contract price instead of 2012 price. (REYES and BURKE, concurring.)

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