Trial Court Abused Discretion in Barring Husband’s Business Valuation Expert from Testifying at Trial

In In re Marriage of Liszka, 2016 IL App (3d) 150238, the husband disclosed his controlled business valuation expert in accordance with Supreme Court Rule 213 more than 60 days prior to trial, but failed to disclose her opinions until just 4 days before trial. The late disclosure was due to the wife failing to provide the expert with necessary financial information, including financial statements and general ledgers. The husband did not receive the financial information until less than a month before trial and more than a month after the discovery deadline had passed. The husband should not have been penalized for the wife’s failure to comply with discovery. The court noted that the proper remedy would have been to have granted the husband’s motion to continue and allow the wife time to depose his business valuation expert prior to the trial.

Trial Court Abused Discretion when Imputing $17,500 per Month to Husband when Setting Child Support

In In re Marriage of Liszka, supra, the court found that the husband was voluntarily unemployed and unwilling to pay the necessary support for his children. Thus, the court imputed $17,500 per month to him when calculating support because that was the amount of money he was living off of each month. However, the amount of income imputed to a payor spouse must be based on earning capacity. The husband had been involuntarily terminated from his CFO position at the family business during the divorce. No evidence was presented at trial that the husband could obtain a job earning $17,500 per month, and therefore the trial court decision was reversed. The issue was remanded for a proper determination of how much income should be imputed to him based on his earning capacity, not his expenses.

Husband’s settlement proceeds from wrongful conviction lawsuit are marital property.

In In re Marriage of Rivera, 2016 IL App (1st) 160552, the appellate court answered in the affirmative the following certified question: “Whether the settlement proceeds received from a wrongful conviction action are marital property when (a) the coerced confession and initial conviction occurred before the marriage, and (b) the conviction was reversed during the marriage.” The husband was incarcerated beginning in 1992 and married his wife in 2000. In 2001, the appellate court affirmed the husband’s second conviction, and a third trial was ordered in 2005 on the basis of new DNA evidence. The husband was convicted for a third time in 2009. In 2011, the appellate court reversed the third conviction and he was released from prison in January 2012. In October 2012, he filed a 42 U.S.C. §1983 action, which under federal law accrued when his conviction was reversed, alleging violation of his civil rights based on his wrongful conviction. He then filed a petition for dissolution of marriage in 2014 and in 2015 settled his federal §1983 lawsuit for $20 million. The appellate court found that the settlement proceeds were marital property because a cause of action is marital property if the cause of action accrues during the marriage. Because the cause of action arose only when the third conviction was reversed in 2011, eleven years after the marriage, the settlement proceeds were marital property.

Trial Court Upheld on Finding that Husband had Breached Terms of MSA by not Either Timely Buying Out Wife’s Interest in Former Marital Residence or Completing Sale.

In In re Marriage of O’Malley, 2016 IL App (1st) 151118, a protracted postjudgment matter, the husband was required to either buyout the wife her 50 percent interest in the former marital residence by a date certain or sell the residence by the same date. The husband did neither, even though he testified that he had the funds to buyout the wife. Instead, he listed the residence for sale after the list date in the MSA and proceeded to aggressively negotiate the sale, causing the buyers to walk away from the deal at the last minute. The wife brought a petition for rule to show cause against the husband. While the litigation proceeded, the residence sold and the proceeds were held in escrow. The trial court held the husband in indirect civil contempt and made an alternative finding that he had breached the terms of the MSA. The court also awarded the wife judgment interest, attorneys’ fees, and distributed the escrow account according to the formula set forth in the MSA. The appellate court reversed the finding of contempt because the husband could not purge himself of the contempt once the residence sold, but upheld the alternative finding that he had breached the MSA, the award of attorneys’ fees, and judgment interest.

Wife had no Common Law Cause of Action for Unjust Enrichment or Quantum Meruit Based on 13 Years of Premarital Cohabitation.

In In re Marriage of Allen, 2016 IL App (1st) 151620, the parties were married for less than seven months when they filed cross petitions for dissolution of marriage. Prior to trial on their matter, the wife sought leave to amend her petition with common law claims based on 13 years of premarital cohabitation. The trial court denied her motion and the wife appealed. The wife argued that the First District’s ruling in Blumenthal v. Brewer, 2014 IL App (1st) 132250, 24 N.E.3d 168, 388 Ill.Dec. 260, which essentially allowed a spouse in a same-sex relationship to advance common law theories of recoveries, allowed the wife in this case to also advance common law theories. The trial court rejected this argument relying on the Supreme Court case of Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204, 31 Ill.Dec. 827 (1979), which bans common law equitable or quasi-contract claims between unmarried couples. The appellate court agreed and declined to extend its holding in Blumenthal to married couples of the opposite sex. It should be noted that since this decision was rendered, the Illinois Supreme Court has overruled the First District Blumenthal ruling, which can be found at Blumenthal v. Brewer, 2016 IL 118781.

Thank you to IICLE Family Law Flashpoints for its contributions this month. Donald C. Schiller & Michelle A. Lawless, Schiller DuCanto & Fleck LLP, Chicago.

In re Marriage of Difiglio, 2016 IL App (3d) 160037, October 19, 2016, Will Co., LYTTON, Affirmed. In dissolution action, wife filed 3rd-party complaint against husband’s brother-in-law and attorney-in-fact, alleging that he owed money to the marital estate. Court properly denied 3rd-party Defendant’s motion to dismiss for lack of personal jurisdiction. Third-party Defendant obtained possession and control of proceeds of sale of company while they were in Illinois, and wife’s cause of action against him arose from his possession and control of those funds. Thus, court had jurisdiction over him, pursuant to Section 2-209(a)(10) of Illinois long-arm statute. Illinois’ assertion of jurisdiction over 3rd-party Defendant comports with due process clauses of Illinois and federal constitutions because he had sufficient minimum contacts with Illinois. His numerous contacts with Illinois establish that he purposefully availed himself to privilege of conducting activities in Illinois. (CARTER and McDADE, concurring.)

In re Marriage of Piegari,  2016 IL App (2d) 160594, November 3, 2016, 2d Dist., DuPage Co., HUTCHINSON, Affirmed. Wife appeals from court’s interlocutory order that denied her petition to hyphenate her children’s surnames and that, on husband’s motion, enjoined wife from hyphenating the children’s surnames on any “official document.” The consistent use of a single name is important to a child’s emotional development. Wife failed to present any evidence or offers of proof to trial court on issue that name change she requested was necessary to serve best interest of each child. Wife’s greater share of parenting time should not equate with a position of power as to the children’s surnames. Injunction was justified by evidence and was appropriately tailored to circumstances of case. (SCHOSTOK and BURKE, concurring.)

In re Marriage of Breashears, 2016 IL App (1st) 152404, October 17, 2016, Cook Co., 1st Div., HARRIS, Affirmed and remanded with directions. Appropriate circumstances existed for granting husband’s emergency petition for bifurcated judgment of dissolution. Husband had been diagnosed with skin cancer and had, 6 weeks prior to filing his emergency petition, been advised by his doctor that he had 6-12 months to live. Husband died 3 weeks after court entered order dissolving marriage while reserving ruling on marital estate. Impending death of a party can be an “appropriate circumstance” for entry of bifurcated judgment of dissolution. Trial court is in best position to determine how petitioner’s actions would affect marital estate and the respondent.(CONNORS and MIKVA, concurring.)

Thank you to ISBA e-clips for its contributions this month.