Dorothy Brown, clerk of the Crook County Circuit Court

Dorothy Brown, clerk of the Crook County Circuit Court

Commentary

A version of this article appeared in the Chicago Tribune.

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Magicians call it misdirection.

When the audience is distracted looking one way, the “magic” happens. Sometimes, politics is no different.

The focus on pensions, gun permits, gambling and same-sex marriage during the just-finished General Assembly session created the perfect distraction for politicians looking to slip in other bills under the radar.

Enter Dorothy Brown, the clerk of the Cook County Circuit Court.

The Better Government Association found Brown quietly lobbied lawmakers to let her office raise millions in new revenue, pushing four money-generating bills in Springfield. All of them thankfully died as quietly as they were introduced.

Brown’s office — which handles court filings such as lawsuits, and is the keeper of millions of court records — is as bad as a bureaucracy gets in Illinois. Visit her main offices in the Daley Center in the Loop, and you’ll see workers standing around, more interested in talking to one another than helping long lines of customers.

You’ll see computer terminals with blinking black and green screens, so outdated it’s a wonder they’re even working. And, if you’re lucky enough to actually get your hands on the court file you’re looking for (many are lost), there’s no guarantee it will be complete.

Efficiency is the answer, not more money.

But Brown soldiered on in Springfield. One of her bills called for hiking two court filing fees — for automation and storage — by as much as $10 each, so they’d be $25 apiece.

Right now, filing a civil lawsuit can cost as much as $337, depending on the type of case. Lawyers say Cook County has some of the highest filing fees in the country.

And these high fees don’t just affect attorneys. They affect anyone trying to use the courts, whether it’s for a simple divorce, a small-claims lawsuit or a probate case after an elderly loved one passes away. Raising fees could deter people from using the courts, and put a greater burden on the poor.

Brown’s office says the storage and automation fee hikes would have generated an extra $13 million a year, to be used to rent more warehouse space to hold paper records and to expand automation (i.e. completely overhauling the antiquated computer system that’s now being used to manage and look up documents.)

Automation, plus e-filing, would bring electronic access to court records. Right now, nearly all Cook County court filing needs to be done in person. E-filing would let lawyers and others file paperwork over the Internet.

Automation and e-filing are crucial steps to modernize the office. Federal courts have been automated for years. Other county court systems are leaps and bounds ahead of Cook, too. While automation is great, Brown should look to trim her 1,800-person staff before she asks to hike fees.

But that would mean cutting back on patronage, the friends and political supporters who make up a large chunk of Brown’s workforce.

“We get complaints about lost files (and) poor customer service,” said Malcolm Rich, executive director of the Chicago Council of Lawyers, a nonpartisan lawyers group that focuses on improving the court system. “You start wondering about the needs for these kind of (court fee) increases.”

Brown’s operation is so bad, one high-ranking Cook County court official told the BGA, that Brown’s staff has stamped court papers with the wrong years, creating even more headaches.

Despite the fact that automation would bring greater efficiency, Brown says she has no plans to cut the number of employees.

“We (are) hurting tremendously right now,” Brown claims, referring to recent budget cuts mandated by Cook County government. “There are not enough efficiencies in the office that we could find.”

Brown also brushed aside questions about an Alabama company, On-Line Information Services, hired by her agency to handle an e-filing pilot program that started in 2009.

The company and people affiliated with it have donated more than $16,000 to Brown’s campaign fund since 2001, state records show.

One of Brown’s top aides, Bridget Dancy, is a village trustee in Matteson, and her campaign fund accepted another $1,500 in donations from people affiliated with the firm. Brown says the donations had nothing to do with hiring the company.

Let’s hope On-Line Information Services and Brown can make e-filing work, although we have our doubts. In the meantime, Brown should find the money to automate her office without raising fees.

Brown’s office plans to push these bills to raise fees again, so the next time there’s magic in Springfield, we should all be watching.

This analysis was written and reported by the Better Government Association’s Patrick Rehkamp and Patrick McCraney, who can be reached at prehkamp@bettergov.org or (312) 386-9201.

how far do the drugs go and how far in will county as well as cook county?

I hope that this tid bit of information will be investigated further. I question Steele’s utilization of a person who has admitted to dealing drugs to judges in the very court system and state in which Prenda et al have a history of getting some questionable rulings. Look at how hard they have fought to get the defamation cases back to St. Clair Co state court! Is this the only “job” Jim Forgarty did for Steele? No. There are rules about personal service. Were they followed? The guy is a probation officer, but he gave T.S. a card that said he was part of a legal division for an insurance investigation company with a PO box that appears to belong to a pediatrician. I know that this is about “copyright” so I don’t mean to hijack the thread; but I do hope that people will continue to share information about any funny business they have encountered with these trolls. As we’ve seen with the Alan Cooper saga – the damage done isn’t limited to John / Jane Does. Not even close! I expect that there’s much much more to the Fogarty / Steele connection. I just hope the info comes to light sooner rather then later, especially given their attempts to hole up in the IL state courts. Sooner someone shines a light on that crap, the sooner those roaches will scatter.
How far into Will and (crook) sorry cook counties did these Bar members go they have had cases directly and indirectly in these counties?

Defendant in Prenda’s case was served by a charged drug dealer
Posted: May 31, 2013 by SJD in Guava/Lightspeed, Prenda
Tags: Anti-Piracy Law Group, Arcadia Security, CFAA, Copyright, Copyright Troll, John Steele, Judicial Hellhole, Kevin Hoerner, Michael O’Malley, Paul Duffy, Paul Hansmeier, Prenda Law, St.Clair county, Steve Jones, Steve Lightspeed
14

4 Votes

Businessweek’s Prenda story

Yesterday Bloomberg Businessweek published probably the most thorough (as of today) article about Prenda: Prenda Law, the Porn Copyright Trolls by Clair Suddath. If you never heard the Prenda story, it is a must read to understand all the nuances. If you have been following these trolls for a while, read it anyway: it is worth your time.

Clair started writing this piece back in March. I don’t know how many hours she spent, I assume a lot. I saw many examples of sloppy reporting in so-called “big media”: Clair’s work is the very definition of the opposite of “sloppiness.” The number of people she interviewed (including yours truly) to get 100% understanding of the trolling world is staggering.

Investigating Prenda is like stepping into a swamp. Obviously, the author had much more material than what finally found its way to the feature. Editors enforce limits (it’s not only about the Internet, this article will be featured in the next printed edition of Businessweek). Something should have been sacrificed, so, regrettably, our community was not mentioned. Nonetheless, it is the least of my concerns: the goal of explaining the story of fraud and abuse to readers unfamiliar with the trolling phenomenon was met with an A+.

I will get back to Bloomberg’s article in a moment.

Scandal in St. Clair County

There is an ongoing scandal in the St. Clair County, IL involving two judges and a probation officer, among others:

If you can’t watch the video, here is a recap from another article.

ST. LOUIS — A southwestern Illinois probation worker who an FBI agent says admitted providing cocaine to two judges [Joe Christ and Michael Cook] , including one of died of an overdose at a hunting cabin while with the other jurist, pleaded not guilty Tuesday to a federal drug charge.

James Fogarty, 45, of Belleville, entered the plea in East St. Louis to a cocaine distribution and possession count. He remains jailed without bond, pending a detention hearing postponed Tuesday by a magistrate judge after federal prosecutors cast Fogarty as a flight risk unworthy of bail.

[…]

Admitting he repeatedly sold cocaine to the two jurists, Fogarty said Christ used the drug on weekends and that Cook partook of the drug at Fogarty’s house roughly 10 times, Murphy wrote. Fogarty snorted cocaine with the two judges at times on golf trips and at least once at the Cook family’s lodge where Christ later died.

Remember the probation officer’s name — James Fogarty.

Prenda and St. Clair County

Regarded by many as a den of corruption, St Clair County court naturally attracted Prenda to carry out their shady dealings. We covered Prenda’s activity in this judiciary hell many times, from the first Prenda’s endeavor — Lightspeed Media v. Smith at al — to the ongoing mockery of justice LW Systems v. Hubbard. A former judge as Prenda’s attorney, a stubborn judge who only understands the language of the Supreme Court’s slap on the wrist, a redefinition of “Chutzpah” by Prenda (suing two telecom giants), a former Bar president lying to a court clerk… I can go on and on. It’s not a surprise that Prenda tries so hard to remand a vindictive SLAPP lawsuit Prenda v. Cooper, Godfread and the Internets back to this hole.

Service of the defendant

As I mentioned above, Lightspeed Media Corporation v. Smith et al lawsuit (initially St. Clair county, removed to ILSD — 12-cv-00889) was covered in this blog previously. There are more recent post-worthy events that I did not write about due to lack of time, maybe I’ll catch up later. One particular event is of our interest: the service of the defendant Smith. Clair Suddath’s article that I started this post with tells us the following story:

Tony Smith had a porn problem. A 27-year-old nursing student in Collinsville, Ill., Smith was listening to music and doing homework one night last August when he heard a knock on his apartment door. He opened it and an imposing-looking man with a flashlight handed him a lawsuit and his business card. A name was written in pen on the back. “Give this guy a call, he can help you get through this,” the man told Smith. “He’s looking out for people like you.” Smith turned it over and read the name: John Steele.

According to the complaint, Smith was accused of conspiring with 6,600 anonymous people to hack into computers owned by Lightspeed Media, an Arizona adult-entertainment company, and steal its porn. Before serving him with the lawsuit, Smith recalled, Chicago’s Prenda Law firm had mailed him threatening letters for three months. “They always said that if I went ahead and wrote a check for $4,000, they’d drop it,” Smith says. Because he didn’t know how to hack into anything and didn’t have any illegally downloaded porn on his computer, he’d thought it was a scam and ignored it.

Assuming Steele was a defense attorney, Smith called him. He says Steele explained the allegations and offered to help. Steele asked about Smith’s job (school made full-time work impossible), his roommates (none), and his computer (an old hand-me-down). The two talked for several minutes before Steele mentioned that he worked with Prenda, helping on a lot of its cases. Smith became suspicious and hung up. After an hour of frantic Googling, he determined that Steele “didn’t just work with Prenda, he ran Prenda,” he says. “That’s when I knew, I’m never talking to this guy again.”

Here is how Anthony Smith describes this event in a sworn affidavit. Scroll down to the photo of the business card in question:

View this document on Scribd

Connecting the dots

I hope you have already connected the two dots: the probation officer James Fogarty, a charged drug dealer, was the one who served the complaint to Smith — the one who tried to trick Smith into calling John Steele. I bet that Prenda’s local attorney who handles Prenda’s dirty deeds in an even dirtier swarm of vermin was a middleman in this con.

Make your own conclusions.

Update

6/1/2013

There is another link between Prenda and Fogarty: Attorney who will be defending Fogarty, Clyde Kuehn, filed (together with Duffy and Hoerner) some pleadings on behalf of Prenda/Lighspeed Media. Both Kuehn and Hoerner served as St. Clair Bar presidents in the past; Kuehn (like O’Malley) is a former judge. The question why St. Clair Bar looks the other way when Prenda “plunders the citizenry” is rhetorical and does not require an explicit answer.

How to do Better Civil Practice in Dissolution of Marriage litigation

911
Better Civil Practice in Dissolution of Marriage
Litigation
Sanjay T. Tailor*
I. INTRODUCTION
The course of litigation will test a lawyer’s knowledge of procedural
law as much as the substantive law governing the case. Dissolution of
marriage litigation is no exception. Yet, in seeking to enforce
substantive rights under the law of dissolution, many practitioners fail to
observe certain elementary aspects of procedural law. Trial judges, for
their part, often overlook procedural shortcomings. Whether viewed
from the perspective of a domestic relations practitioner or trial judge,
any temporary gain that may be had by relaxing procedural rules is
greatly outweighed by the adverse effect it will have on the
administration of justice in the long term. Informed by the Illinois
Marriage and Dissolution of Marriage Act (Marriage Act),1 Article II of
the Illinois Code of Civil Procedure (Code),2 also known as the Civil
Practice Law (CPL), and the Illinois Supreme Court Rules (Supreme
Court Rules or Rules), this Article draws attention to procedural
customs and practices in domestic relations cases that are at odds with
well-established procedural law and suggests changes in the way certain
key aspects of dissolution of marriage cases are litigated. This Article
argues that adopting its recommendations would harmonize procedure
* Associate Judge, Circuit Court of Cook County, Illinois; Adjunct Professor, Loyola
University of Chicago School of Law. Megan Beck, an associate at Berger Schatz and previously
a law clerk in the Domestic Relations Division of the Circuit Court of Cook County, provided
excellent research and editorial assistance. I am grateful to my bench and bar colleagues, the
Honorable Nancy J. Katz, Associate Judge, Circuit Court of Cook County; the Honorable Arnold
F. Blockman, Circuit Judge, Sixth Judicial Circuit, Champaign County; the Honorable Stephen A.
Schiller (ret’d. Circuit Judge, Cook Judicial Circuit); and Celia G. Gamrath, partner, Schiller,
DuCanto and Fleck, for their insightful comments on drafts of this article. I also benefited by
liberally consulting a leading treatise and practice guide on domestic relations law in Illinois: H.
JOSEPH GITLIN, GITLIN ON DIVORCE: A GUIDE TO ILLINOIS MATRIMONIAL LAW (3d ed. 2007);
and MULLER DAVIS & JODY MEYER YAZICI, THE ILLINOIS PRACTICE OF FAMILY LAW (2008–
2009).
1. 750 ILL. COMP. STAT. 5/101 to 5/802 (2006).
2. 735 ILL. COMP. STAT. 5/1-101 to 5/22-105 (2006).
TAILOR.DOC 4/23/2009 11:13:43 AM
912 Loyola University Chicago Law Journal [Vol. 40
between dissolution of marriage and other civil actions, to the great
benefit of the courts, domestic relations bar, and, ultimately the parties
involved.3
“Nothing is more critical to the judicial function than the
administration of justice without delay. Central to discharging this
function, the judiciary must be unimpeded in considering and rendering
judgments on matters before it.”4 Procedural law provides the means by
which substantive rights are determined in a just, orderly, expeditious,
and inexpensive manner.5 Moreover, “[p]rocedural regularity promotes
the competence of the courts and their reputation for fairness.”6 Thus,
competent representation requires a strong working knowledge of
procedural law; the lawyer who fails to comply with procedural law
does his client, and the court, a disservice.
Part II of this Article begins with a background illustration and
discussion of the importance of procedural law and the appropriate
relationship between procedure and substance.7 Next, Part III discusses
the many ways in which basic Illinois procedural rules are misapplied in
dissolution of marriage cases.8 The problem areas and procedures
discussed are (A) temporary and pre-judgment relief;9 (B) dissipation;10
(C) the duty to seasonably update discovery;11 (D) publication notice;12
(E) contesting personal jurisdiction;13 (F) dismissal for want of
prosecution and voluntary dismissal;14 (G) attorney withdrawal;15 (H)
3. This Article advocates the principle of trans-substantivity, or the application of the same
procedural rules regardless of the type of case. An excellent review of the rise, legislative and
court-imposed limitations, defense, and future of trans-substantivity in civil procedure is David
Markus, The Past, Present, and Future of Trans-Substantivity in American Civil Procedure,
DEPAUL L. REV. (forthcoming).
4. O’Connell v. St. Francis Hosp., 492 N.E.2d 1322, 1326 (Ill. 1986) (citations omitted).
5. See Dorin v. Occidental Life Ins. Co. of California, 270 N.E.2d 515, 518 (Ill. App. Ct.
1971) (explaining that the Civil Practice Act was designed to provide procedure whereby
substantive rights could be determined with minimum of delay, technicality, and expense). Cf.
FED. R. CIV. P. 1 (providing that rules should be “construed and administered to secure the just,
speedy, and inexpensive determination of every action”).
6. Martha L. Minow, Politics and Procedure, in THE POLITICS OF LAW: A PROGRESSIVE
CRITIQUE 79, 82 (David Kairys ed., 3d ed. 1998).
7. See infra Part II.
8. See infra Part III.
9. See infra Part III.A.
10. See infra Part III.B.
11. See infra Part III.C.
12. See infra Part III.D.
13. See infra Part III.E.
14. See infra Part III.F.
15. See infra Part III.G.
TAILOR.DOC 4/23/2009 11:13:43 AM
2009] Better Civil Practice in Dissolution of Marriage Litigation 913
parallel proceedings;16 (I) defaults, default judgments, and ex parte
judgments;17 (J) inappropriate questioning of one’s client at a prove-up
hearing;18 (K) declaratory judgments;19 (L) the privilege against selfincrimination;
20 and (M) contempt.21 Finally, Part IV concludes by
briefly summarizing these suggestions and revisiting the importance of
the proper balance between procedure and substance.22
II. BACKGROUND: PROCEDURE LAW AS AN AID TO SUBSTANTIVE JUSTICE
Procedural rules of justice play an integral role in American
jurisprudence. Accordingly, this Part begins with an illustration of the
significance of rules of procedure in American history. It then analyzes
the proper relationship between procedural law and substantive law in
general American jurisprudence. Finally, this Part analyzes the
procedure-substance balance under the Code and Illinois Supreme Court
Rules.23
A striking example of the importance of procedural law in the
administration of justice is seen in Walker v. City of Birmingham,24 a
case that grew out of Martin Luther King, Jr.’s 1963 march against
racial segregation. King’s colleagues were told in no uncertain terms by
Birmingham Public Safety Commissioner, Eugene “Bull” Conner, a
self-proclaimed white supremacist who vowed to resist racial
integration,25 that the city would not issue a permit for King’s group to
march.26 A state court judge granted the city’s ex parte request to
enjoin the defendants from marching on Good Friday and Easter
Sunday.27 Thirty-six hours later, on Good Friday, King, Ralph
Abernathy, and sixty others marched.28 After the arrests, King’s
attorneys sought to dissolve the injunction as unconstitutional while the
16. See infra Part III.H.
17. See infra Part III.I.
18. See infra Part III.J.
19. See infra Part III.K.
20. See infra Part III.L.
21. See infra Part III.M.
22. See infra Part IV.
23. See infra Part II.
24. Walker v. City of Birmingham, 388 U.S. 307 (1967).
25. Id. at 326 n.1 (Brennan, J., joined by Warren and Fortas, JJ., dissenting) (citing
CONGRESSIONAL QUARTERLY SERV., CONGRESS AND THE NATION 1945–1964: A REVIEW OF
GOVERNMENT AND POLITICS IN THE POSTWAR YEARS 1604 (Thomas N. Schroth ed., 1965)).
26. Minow, supra note 6, at 81.
27. Walker, 388 U.S. at 309.
28. Minow, supra note 6, at 81.
TAILOR.DOC 4/23/2009 11:13:43 AM
914 Loyola University Chicago Law Journal [Vol. 40
city sought to hold King in contempt of court.29 The state court found
the marchers in contempt of court and refused to consider the
constitutional question.30 The United States Supreme Court upheld the
contempt finding under the collateral bar rule, a procedural rule that
prohibits a person from raising a substantive challenge to a court order
if he disobeys the order before bringing the challenge to court.31 The
Court affirmed the criminal contempt convictions under the collateral
bar rule, even though (a) there was no practical hope of obtaining relief
in the state court,32 and (b) the Court later struck down the local
ordinance underlying the state court’s injunction, deeming it a patent
violation of the First Amendment’s rights of assembly and free
speech.33 Thus, the Court upheld a procedural requirement in the face
of compelling substantive injustice.34
A number of theories have been advanced to explain the relationship
between procedural and substantive law. Walker illustrates the view
that procedure should not bend, even if only to temporarily
accommodate a grave substantive injustice.35 This view appeared to be
the principle governing untimely responses to requests to admit under
Illinois Supreme Court Rule 216,36 that is, until the Illinois Supreme
29. Id.
30. Walker, 388 U.S. at 311–12.
31. Id. at 315–22.
32. Minow, supra note 6, at 81.
33. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 159 (1969) (holding that the
ordinance denied or abridged “the right of assembly and opportunities for the communication of
thought”).
34. King served his sentence in solitary confinement where, in response to a request by eight
white local clergymen calling for an end to the demonstrations, sent his American classic “Letter
from A Birmingham Jail,” explaining his decision to violate the injunction without first seeking
relief from the court. King wrote: “I submit that an individual who breaks a law that conscience
tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of
the community over its injustice, is in reality expressing the highest respect for law.” Martin
Luther King, Jr., Letter from A Birmingham Jail (1963), reprinted in A. J. Muste Mem’l Inst.
Essay Series, No. 1, Martin Luther King Jr. 13, 21 (1981). On a more practical level, King was
frustrated that his ongoing efforts to build a national movement of nonviolent protest against
racial segregation were constantly being stymied by delays occasioned in the courts. In this case,
the Good Friday and Easter Sunday marches bore great significance to King because Bull
Connor’s government was to be replaced the following Monday. Minow, supra note 6, at 94
nn.4–5. Perhaps attuned to public perception, the Supreme Court supported its decision by
pointing to a criminal contempt conviction affirmed by a lower federal appeals court under the
collateral bar rule where the defendant, invoking his rights under the First Amendment, attempted
to organize an effort “to run Negroes out of the school,” without first attempting to challenge the
court order prohibiting him from interfering with the desegregation of the public school. Walker,
388 U.S. at 320–21 n.16.
35. Minow, supra note 6, at 82.
36. ILL. SUP. CT. R. 216(c) (“Each of the matters of fact and genuineness of each document of
TAILOR.DOC 4/23/2009 11:13:43 AM
2009] Better Civil Practice in Dissolution of Marriage Litigation 915
Court’s recent decision in Vision Point of Sale, Inc. v. Haas.37 Another
theory posits that procedure and substance cannot be separated and that
efforts to distinguish them fail. For example, in Walker, by not
permitting King to take the law into his own hands, the Court expressed
its commitment to social order. Whether social order reflects a
procedural or substantive value is difficult to answer.38 Perhaps it is
both. A third theory is that procedure stands as the servant of justice, so
that procedural rules should not stand in the way of just results in
particular circumstances.39
Illinois adheres to this last view. Section 1-106 provides that the
Code is to be liberally construed so that controversies may be
determined according to the substantive rights of the parties.40 The
Code was crafted “to simplify pleadings and to promote justice, rather
than to set up artificial rules of practice,” and the trend of the court has
long been to construe liberally the rules of practice “to the end that form
shall be inferior to substance.”41 Still, the consequences of a failure to
comply with procedural law can be severe. For example, even after
which admission is requested is admitted unless, within 28 days after service thereof, the party to
whom the request is directed serves upon the party requesting the admission either (1) a sworn
statement denying specifically the matters of which admission is requested or setting forth in
detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections
on the ground that some or all of the requested admissions are privileged or irrelevant or that the
request is otherwise improper.”).
37. In Vision Point of Sale, Inc. v. Haas, the court tempered the procedural harshness of
Supreme Court Rule 216 by holding that in determining whether good cause exists under
Supreme Court Rule 183 to grant an extension of time for an unintentional failure to comply with
the time limit to respond to a request to admit, a court may consider mistake, inadvertence, or
attorney neglect. Vision Point of Sale, Inc. v. Haas, 875 N.E.2d 1065, 1078–79 (Ill. 2007).
Before Vision Point of Sale, courts held that mistake, inadvertence, or attorney neglect did not
constitute good cause, with the result that the judicially admitted facts would often form the basis
of summary judgment against the non-responding party. See, e.g., Robertson v. Sky Chefs, Inc.,
799 N.E.2d 852, 857–58 (Ill. App. Ct. 2003) (affirming summary judgment granted against
plaintiff who failed to respond to request to admit that complaint’s allegations of negligent acts or
omissions arising out of automobile accident were not true); Glasco v. Marony, 808 N.E.2d 1107,
1109–12 (Ill. App. Ct. 2004) (summary judgment in favor of defendant where plaintiff failed to
respond to request to admit); Robbins v. Allstate Ins. Co., 841 N.E.2d 22, 24–27 (Ill. App. Ct.
2005) (granting summary judgment in favor of defendant after plaintiff mistakenly filed
inconsistent typewritten and handwritten responses and responses were not under oath). In
overruling this line of cases, the Vision Point of Sale court stated: “We note that there is a broad
overall policy goal of resolving cases on the merits rather than on technicalities, and that the . . .
line of appellate court cases run directly counter to this principle.” Vision Point of Sale, 875
N.E.2d at 1077–78 (citations omitted).
38. Minow, supra note 6, at 90.
39. Id. at 86.
40. 735 ILL. COMP. STAT. 5/1-106 (2006).
41. Cunningham v. City of Sullivan, 147 N.E.2d 200, 203 (Ill. App. Ct. 1958). See also Dorin
v. Occidental Life Ins. Co. of California, 270 N.E.2d 515, 518–19 (Ill. App. Ct. 1971).
TAILOR.DOC 4/23/2009 11:13:43 AM
916 Loyola University Chicago Law Journal [Vol. 40
Vision Point of Sale, absent good cause shown for an extension of time
under Supreme Court Rule 183, a failure to timely respond to a request
to admit facts within twenty-eight days will result in judicial admissions
under rule 216,42 quite possibly forming the basis for summary
judgment against the non-responding party. Repeated failures to
comply with discovery or certain pre-trial orders may lead to last resort
or litigation-ending sanctions of dismissal or judgment by default under
rule 219(c) or under the court’s inherent authority to control its
docket.43 Further, summary judgment may be entered in favor of a
defendant when the plaintiff’s expert’s rule 191 affidavit is stricken
because the documents that the affiant used in reaching his opinion are
not attached, as required by the rule.44 Thus, procedural rules continue
to play an essential role in Illinois, and misapplication and
misunderstanding of these rules can be the deciding factor in a case,
regardless of the underlying facts. Accordingly, the next Part examines
one of the most procedurally problematic areas of Illinois litigation,
dissolution of marriage cases.
III. MISAPPLICATION OF PROCEDURAL LAW IN DISSOLUTION OF
MARRIAGE CASES
The CPL, or Article II of the Code, applies to all proceedings under
the Marriage Act, unless it provides otherwise.45 While the CPL may
42. See In re Marriage of Holthaus, 899 N.E.2d 355, 360 (Ill. App. Ct. 2008) (because good
cause was not shown for an extension of time under Supreme Court Rule 183, the trial court did
not err in striking the response to request to admit facts supporting dissipation charge filed two
days late).
43. ILL. SUP. CT. R. 219(c). See also Sander v. Dow Chem. Co., 651 N.E.2d 1071, 1082–83
(Ill. 1995) (finding that violations of four separate court orders setting deadline for filing amended
complaint, among other violations, justified dismissal of plaintiff’s products liability action); 612
N. Michigan Ave. Bldg. Corp. v. Factsystem, Inc., 370 N.E.2d 236, 241 (Ill. App. Ct. 1977)
(holding that unreasonable and repeated non-compliance with rules of discovery displayed
deliberate defiance of court’s authority and warranted sanction of defaulting defendant on
liability).
44. See Robidoux v. Oliphant, 755 N.E.2d 987, 991 (Ill. 2002) (denying plaintiff’s request to
file supplemental materials after summary judgment entered).
45. 750 ILL. COMP. STAT. 5/105 (2006). See also In re Marriage of Best, 886 N.E.2d 939, 944
(Ill. 2008) (finding that by incorporating the Civil Practice Law, the legislature expressly
provided for declaratory judgments under section 2-701 of the Code in dissolution cases).
Section 410 of the Marriage Act provides that “[t]he process, practice and proceedings under this
Act shall be the same as in other civil cases, except as otherwise provided by this Act, or by any
law or rule of court . . . .” 750 ILL. COMP. STAT. 5/410 (2006). See In re Marriage of Betts, 526
N.E.2d 1138, 1140 (Ill. App. Ct. 1988) (explaining that verification by certification under section
1-109 of the Code applies to post-dissolution pleadings by virtue of sections 105(a) and 410 of
Marriage Act); In re Marriage of Manhoff, 880 N.E.2d 627, 630–31 (Ill. App. Ct. 2007) (holding
the same, but not citing section 410 of Marriage Act). Thus, beyond the CPL, other provisions of
the Code may apply to dissolution actions. However, aside from the verification by certification
TAILOR.DOC 4/23/2009 11:13:43 AM
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not have been written with the unique aspects of dissolution of marriage
cases in mind, it still provides an adequate and effective means to
enforce substantive rights under the law of dissolution. Yet, certain
aspects of dissolution litigation, by convention or otherwise, tend to
proceed outside the parameters of the CPL. However, common practice
is not determinative of the proper construction of a statute.46 Procedural
rules are not “aspirational” or mere “suggestions”; rather, “[t]hey have
the force of law, and the presumption must be that they will be obeyed
and enforced as written.”47 This Part discusses thirteen common
mistakes, misunderstandings, and misapplications of procedural law in
Illinois dissolution of marriage cases.
A. Temporary and Other Pre-Judgment Relief
Perhaps no aspect of a dissolution of marriage case is more prone to
procedural error than temporary or other pre-judgment relief litigation.
Courts and practitioners consistently confuse motions for temporary and
pre-judgment relief with pleadings. Accordingly, Section A.1 outlines
why such requests should be treated as motions and examines the
implications of parties’ and courts’ failure to do so.48 Section A.2 then
recommends an appropriate procedure for addressing requests for
temporary and pre-judgment relief.49
1. Motions Mistaken for Pleadings
Once a petition for dissolution of marriage has been filed, it may be
necessary for one or both parties to seek temporary relief from the court,
such as temporary child custody, child support, visitation, or
maintenance. The variety of other pre-judgment relief that a party may
seek runs the gamut. To name just a few, a party may seek exclusive
possession of the marital residence, to compel discovery, an evaluation
provision in Article I of the Code, no other Articles in the Code have been interpreted to apply to
a dissolution action by virtue of section 410 of the Marriage Act.
46. Best, 886 N.E.2d at 945.
47. Rodriguez v. Sheriff’s Merit Comm’n of Kane County, 843 N.E.2d 379, 385 (Ill. 2006).
See Elkins v. Superior Court of Contra Costa County, 163 P.3d 160, 168–78 (Cal. 2007)
(determining that local procedural rule providing for written declaration of party in lieu of live
direct testimony at trial in family law case constitutes hearsay, improperly expands procedural
rule authorizing use of declarations in certain pre-trial matters of a preliminary or ancillary nature
only, and improperly deviates from traditional concept of a trial as an oral examination of a
witness in presence of a trier of fact.). In Elkins v. Superior Court of Contra Costa County, the
California Supreme Court stressed that a trial in a family law matter is no less subject to rules of
procedure and evidence than any other type of case, even where local procedure at issue promotes
judicial efficiency. Id.
48. See infra Part III.A.1.
49. See infra Part III.A.2.
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918 Loyola University Chicago Law Journal [Vol. 40
of a child’s best interests by a professional, or exclusion of evidence in
limine. In other civil cases, the party seeking pre-judgment relief files a
motion. But in a dissolution case, the petition is the device of choice.
Although the use of the petition does not necessarily contravene
procedural law,50 error occurs when practitioners and courts treat the
petition as a pleading rather than a motion. This failure to treat the
request for relief as a motion reveals a great deal of confusion among
domestic relations practitioners about the difference between a pleading
and a motion. Such confusion leads to improper pleadings and motions,
excessive pleading and motion practice, increased costs, congested
courts, and poor records on appeal; all of which stand in the way of
prompt and effective administration of justice.
A motion “is an application to the court for a ruling or an order in a
pending case.”51 On the other hand, “[a] pleading . . . consists of a
party’s formal allegations of his claims or defenses.”52 The three
categories of pleadings authorized under Illinois law are the complaint,
answer, and reply.53 A petition generally serves as a pleading when it is
used to commence an action. For example, the petition for dissolution
of marriage, like a complaint in other civil cases, constitutes the initial
pleading and serves to frame the issues in a dissolution case.54
50. See People ex rel. Woodward v. Bd. of Educ. of Cmty. High Sch. Dist. 408, 140 N.E.2d
22, 24 (Ill. 1923) (“A petition is a written application requesting the granting of some benefit or
privilege, the performance of some duty or doing some desired act.”); Halter v. Schoreck, 216
N.E.2d 278, 281 (Ill. App. Ct. 1966) (“The principal difference between motions and petitions
lies in the fact that motions, though usually made in writing, may sometimes be made orally,
while a petition is always in writing.”). This distinction is not important here, however, because
almost all requests for temporary or other pre-judgment relief are in writing. What is important to
observe is that while a petition may describe both a pleading and motion, a pleading and motion
are not synonymous. See infra note 55.
51. In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993). See also William
J. Templeton Co. v. Liberty Mut. Ins. Co., 735 N.E.2d 669, 677 (Ill. App. Ct. 2000) (citing
Sutherland); In re Marriage of Wolff, 822 N.E.2d 596, 601 (Ill. App. Ct. 2005) (citing Sutherland
and finding that a section 2-1203 motion to reconsider was not a pleading).
52. Wolff, 822 N.E.2d at 601–02; Sutherland, 622 N.E.2d at 107. See also 735 ILL. COMP.
STAT. 5/2-603 (2006) (“All pleadings shall contain a plain and concise statement of the pleader’s
cause of action, counterclaim, defense, or reply.”).
53. 735 ILL. COMP. STAT. 5/2-602 (2006); 3 RICHARD A. MICHAEL, ILLINOIS PRACTICE –
CIVIL PROCEDURE BEFORE TRIAL § 23.2 (1989). Included in these three categories are the
affirmative defense, reply, counterclaim, third party complaint, and supplemental pleading. 735
ILL. COMP. STAT. 5/2-603 (2006); 735 ILL. COMP. STAT. 2-608 (2006); 735 ILL. COMP. STAT. 2-
609 (2006). See also In re Marriage of Saffren, 852 N.E.2d 302, 309 (Ill. App. Ct. 2006)
(including a third party complaint); Strader v. Bd. of Educ., 115 N.E.2d 539, 546 (Ill. App. Ct.
1953) (finding a proposed intervening petition is a pleading similar in nature to complaint or
answer).
54. See 750 ILL. COMP. STAT. 5/105(c) (2006) (“The initial pleading in all proceedings under
this Act shall be denominated a petition. A responsive pleading shall be denominated a
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Likewise, a subsequent related proceeding, such as a petition to modify
any aspect of a judgment for dissolution of marriage filed more than
thirty days after entry of the judgment, is considered a pleading.55 A
motion and a pleading, however, are not synonymous.56
The plain language of the Marriage Act makes it apparent that a
request for temporary or other pre-judgment relief in a pending case is a
motion. Section 501 of the Marriage Act provides that either party may
“move” for temporary maintenance or support, temporary restraining
order or preliminary injunction, or other temporary relief,57 and that a
response may be filed within twenty-one days after service of the notice
of “motion.”58 Likewise, section 603 of the Marriage Act provides that
either party may “move” for temporary custody.59
Statutory language notwithstanding, a request for temporary or other
pre-judgment relief cannot be understood as a pleading because it does
not perform a pleading’s essential function. The essential function of a
response.”); 750 ILL. COMP. STAT. 5/452 (2006) (providing for a joint petition for simplified
dissolution); Ligon v. Williams, 637 N.E.2d 633, 637–38 (Ill. App. Ct. 1994) (addressing the
purpose of pleadings in a custody action). The pleading requirements for a dissolution petition
are minimal and, other than “any arrangements as to support, custody and visitation of the
children and maintenance of a spouse,” 750 ILL. COMP. STAT. 5/403(a) (2006), nothing further is
required to be pled with respect to issues that may or are likely to arise in the dissolution of
marriage action. Nothing, of course, prohibits a petitioner from alleging additional facts in a
dissolution petition that may bear on a need for temporary relief. The responsive pleading is
designated a response, not an answer as in other civil cases. 750 ILL. COMP. STAT. 5/105(c)
(2006). All other pleadings under the Marriage Act are denominated as provided in the CPL. Id.
55. See Sutherland, 622 N.E.2d at 107–08 (finding that the wife’s petition for increased child
support filed more than 30 days after entry of dissolution judgment was a pleading rather than a
motion). Cf. Okumura v. Nisei Bowlium, Inc., 357 N.E.2d 187, 189 (Ill. App. Ct. 1976) (finding
that a petition to vacate judgment under section 2-1401 of the Code was a pleading).
56. See supra note 50 (discussing the differences between motions and pleadings). See also
Wolff, 822 N.E.2d at 601–02 (holding that a motion to dismiss under section 2-619 of the Code,
which applies only to dismissal of pleadings, may not be used to attack a motion to reconsider
because motion to reconsider is not a pleading); Sutherland, 622 N.E.2d at 108 (finding the same,
except that a motion to dismiss under section 2-615 of the Code incorrectly employed to attack
motion to reconsider); William J. Templeman Co., 735 N.E.2d at 677–78 (explaining that a
motion for Rule 137 sanctions is not a pleading). See also Patrick v. Burgess-Norton Mfg. Co.,
349 N.E.2d 52, 53 (Ill. 1976) (treating petition to vacate judgment filed within 30 days of its entry
as motion rather than a pleading); 735 ILL. COMP. STAT. 5/2-301 (2006) (stating that if
responding party files responsive pleading or motion prior to filing a motion objecting to
jurisdiction over person, that party waives all objections to the court’s jurisdiction over the
party’s person). Compare 735 ILL. COMP. STAT. 5/2-603 (2006) (“All pleadings shall contain a
plain and concise statement of the pleader’s case of action, counterclaim, defense, or reply.”),
with 735 ILL. COMP. STAT. 5/2-620 (2006) (“The form and content of motions . . . and all other
matters of procedure relative thereto, shall be according to rules.”).
57. 750 ILL. COMP. STAT. 5/501(a) (2006).
58. 750 ILL. COMP. STAT. 5/501(c) (2006).
59. 750 ILL. COMP. STAT. 5/603 (2006).
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920 Loyola University Chicago Law Journal [Vol. 40
pleading is to present claims, but a request for temporary or other prejudgment
relief does not present a claim. A dissolution petition may
present numerous issues, such as child custody, child support, visitation,
property division, maintenance, or even grounds for dissolution, but it
presents only one claim—dissolution of marriage.60 The issues that the
court must decide during the course of a dissolution action are
considered ancillary issues within the dissolution claim.61 No relief is
available on any issue if the trial court declines to grant the dissolution
petition.62 Because a request for temporary or other pre-judgment relief
in a pending case does not give rise to a separate claim, any order
granting such relief is not final and appealable.63
Finally, pertinent legislative history supports the assertion that
temporary and pre-judgment relief requests should be treated as motions
rather than pleadings. Considering that one of the prime moving forces
behind the passage of the Civil Practice Act in 1933 was to substantially
60. In re Marriage of Leopando, 449 N.E.2d 137, 140 (Ill. 1983). See In re Marriage of
Manns, 538 N.E.2d 707, 711–12 (Ill. App. Ct. 1991) (finding that respondent’s petition for
reimbursement for one-half of parties’ estimated joint income tax was not a counterclaim for
purposes of petitioner’s motion for voluntary dismissal, but rather was at most a preliminary
matter). Cf. In re Marriage of Best, 859 N.E.2d 173, 180–81 (Ill. App. Ct. 2006) (determining
that because a request for declaratory judgment presents a separate claim, the proper method to
add a cause of action for declaratory judgment in a pending dissolution case is to seek leave to
file an amended pleading, not file a motion for declaratory judgment), aff’d in part and rev’d in
part on other grounds, 886 N.E.2d 939 (Ill. 2008). On the other hand, multiple post-dissolution
petitions raise multiple claims for relief. See In re Marriage of Duggan, 877 N.E.2d 1140, 1149
(Ill. App. Ct. 2007) (finding that post-dissolution petitions to modify support and visitation raised
new claims in dissolution action). Moreover, even a post-dissolution petition for contempt
presents a separate claim for relief for purposes of Supreme Court Rule 304(a). In re Marriage of
Gutman, 2008 Ill. LEXIS 1430, at *4–6 (Ill. Nov. 20, 2008), reh’g denied 2009 Ill. LEXIS 98 (Ill.
Jan. 26, 2009) (resolving intense appellate jurisdiction debate where one panel of the Appellate
Court, Second District, improperly overruled another). Thus, in the absence of a Supreme Court
Rule 304(a) finding, a party may not appeal a final judgment as to one post-dissolution petition
while another is pending. Id.
61. Leopando, 449 N.E.2d at 140.
62. Id. See In re Marriage of Best, 886 N.E.2d 939, 942–43 (Ill. 2008) (noting that no relief is
available on issues such as custody, property disposition, or support if the trial court declines to
grant the dissolution petition).
63. In re Marriage of Dunseth, 633 N.E.2d 82, 91 (Ill. App. Ct. 1994) (holding that a
temporary maintenance order was not appealable). Moreover, because a temporary order is not a
final judgment, a finding under Supreme Court Rule 304(a) that there is no just reason to delay
the enforcement or appeal of the order is a procedural nullity. See In re Marriage of Ryan, 544
N.E.2d 454, 455 (Ill. App. Ct. 1989). There are limited exceptions to the general rule that
interlocutory orders are not immediately appealable. By way of illustration only, orders granting
or denying injunctive relief, appointing or refusing to appoint a receiver, terminating parental
rights, and vacating or modifying a judgment under section 2-1401 of the CPL, are immediately
appealable under Supreme Court Rules 307 and 304(b). A declaratory judgment in a pending
dissolution of marriage action is also immediately appealable with a finding that there is no just
reason for delaying appeal under Supreme Court Rule 304(a).
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reduce the number of permissible pleadings in Illinois,64 any doubts
should be resolved in favor of characterizing the petition for temporary
or other pre-judgment relief as a motion. In sum, once the dissolution
petition and response have been filed, the parties are at issue and the
pleading stage of the litigation is generally concluded.65 Thereafter,
temporary or other pre-judgment relief should be sought by motion,
unless specifically authorized elsewhere in the CPL.66
Of course, one might question whether viewing the petition for
temporary relief as a motion rather than a pleading itself exalts form
over substance. This is not, however, merely an academic exercise.
Procedural norms and conventions followed by parties responding to
petitions for temporary relief are likewise fraught with error. Thus,
what may be viewed as an isolated or harmless error has a cascade
effect, further undermining the salutary purposes of procedural law.
The initial error in treating a request for temporary or pre-judgment
relief as a pleading rather than a motion opens the door to procedurally
improper responses that are both ineffective and time-consuming.
When the court fails to enforce procedural law, the party responding to
a petition for temporary relief typically files either a motion to strike or
dismiss the petition or answers the petition. The motion to strike or
dismiss may delay the proceeding if the court permits separate briefing
and hearing on the motion to strike or dismiss the petition and the
underlying petition itself. When a party responds to the petition with an
answer, she generally admits, denies, or states a want of knowledge of
each averment in the petition, just as she would respond to the
allegations in the initial dissolution petition, presumably to avoid
admitting material facts. On a practical level, this does little to assist
the court in identifying the factual and/or legal issues raised by the
petition for temporary relief. Moreover, the answer will often include
one or more erroneously labeled “affirmative defenses,” which do not
64. See MICHAEL, supra note 53, § 23.1.
65. A party may amend his pleading and add a new claim against a new party under section 2-
616(a) of the CPL. 735 ILL. COMP. STAT. 5/2-616(a) (2006). However, an amended pleading
adding new parties filed without leave of court is a nullity. See First Robinson Sav. & Loan v.
Ledo Constr. Co., 569 N.E.2d 304, 307 (Ill. App. Ct. 1991) (“An amended pleading that adds
additional parties filed without leave of court is a nullity.”); Callaghan Paving, Inc. v. Keeneyville
Constr. Co., 557 N.E.2d 228, 229 (Ill. App. Ct. 1990) (“A plaintiff can only amend a complaint to
add a claim against a new party with leave of court. An amended complaint adding additional
parties without leave of court is a nullity.”). But see Ganci v. Blauvelt, 690 N.E.2d 649, 654 (Ill.
App. Ct. 1998) (explaining that leave of court to bring in an additional party is not a necessary
requirement for a court to have jurisdiction over the proceeding against the additional party).
66. See 735 ILL. COMP. STAT. 5/2-701 (2006) (authorizing filing of pleading or petition
seeking declaratory relief). See infra note 186.
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922 Loyola University Chicago Law Journal [Vol. 40
give color to the opposing party’s claim, and then assert new matters by
which the apparent right is defeated.67 Rather, they are usually further
denials of the allegations in the petition for temporary relief.
The procedural rules relating to pleadings and motions are different.
A party may respond to a pleading with an answer, admitting, denying,
or stating a want of knowledge of the allegations in the pleading,68 or a
motion attacking the pleading.69 Other less common options are the bill
of particulars70 and motion for summary judgment.71 A motion, on the
other hand, is not subject to attack by another motion.72 Because a
petition for temporary relief in a pending case is a motion, the
ubiquitous motion to strike or dismiss is a nullity. The failure to
respond to a pleading admits the allegations in the pleading,73 but a
failure to respond to a motion in writing does not admit facts asserted in
the motion.74 That is the case even where the motion for temporary
relief is supported by affidavit and the responding party fails to file a
counter-affidavit.75 Finally, because there is no provision in the Code to
67. See Korando v. Uniroyal Goodrich Tire Co., 637 N.E.2d 1020, 1024–25 (Ill. 1994)
(stating that because proximate cause is an element of plaintiff’s negligence claim, the defendant
was not required to plead lack of proximate cause as affirmative defense).
68. See 735 ILL. COMP. STAT. 5/2-610(a) (2006).
69. See 735 ILL. COMP. STAT. 5/2-615 (2006) (“[A]ll objections to pleadings shall be raised
by motion [which] . . . shall point out specifically the defects complained of . . . .”); 735 ILL.
COMP. STAT.5/2-619 (2006) (allowing involuntary dismissal based on affirmative matters).
70. See 735 ILL. COMP. STAT. 5/2-607 (2006) (allowing a responding party to file a bill of
particulars if the complaint is wanting details).
71. 735 ILL. COMP. STAT. 5/2-1005 (2006) (explaining that a defendant may move for
summary judgment “at any time”).
72. See, e.g., In re Marriage of Wolff, 822 N.E.2d 596, 601 (Ill. App. Ct. 2005) (explaining
that a motion to dismiss under section 2-619 of the Code may not be used to attack a motion to
reconsider under section 2-1203 of the Code); Marriage of Sutherland, 622 N.E.2d 105, 108 (Ill.
App. Ct. 1993) (reiterating Wolff, adding that the motion to dismiss under section 2-615 of the
Code incorrectly employed to attack motion to reconsider); Marriage of Nesbitt, 879 N.E.2d 445,
455 (Ill. App. Ct. 2007) (explaining that a Rule 137 motion for sanctions is not a pleading subject
to attack under sections 2-615 or 2-619 of the Code). See also Anthony Longo, Motions
Attacking Motions: A Plea to End the Violence, TRIAL BRIEFS (Ill. St. Bar Assoc., Civ. Prac. &
Proc. Sec.), Mar. 2008, at 3–4. Cf. In re Guardianship of Jordan M. C.-M., 814 N.E.2d 232, 235
(Ill. App. Ct. 2004) (stating that a motion under section 2-619 of the Code may only be used to
attack a pleading, not an order).
73. See 735 ILL. COMP. STAT. 5/2-610 (2006) (“Every allegation, except allegations of
damages, not explicitly denied, is admitted”); In re Marriage of Sreenan, 402 N.E.2d 348, 351
(Ill. App. Ct. 1980) (“[W]here a plaintiff fails to reply to new matter contained in a defendant’s
affirmative defense, the truth of the new matter is deemed to have been admitted.”)
74. SeeIn re Marriage of Fahy, 567 N.E.2d 552, 557 (Ill. App. Ct. 1991) (the failure to file a
written response to a motion does not waive the right to contest merits of the motion but merely
the right to file a response to the motion).
75. Cf. In re Marriage of Dowd, 573 N.E.2d 312, 313 (Ill. App. Ct. 1991) (stating the rule that
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respond to a motion with a pleading, the responding party may not plead
an affirmative defense. Thus, when practitioners and courts treat
temporary and pre-judgment relief petitions as pleadings, they open the
door to a flood of null, inappropriate, and time-consuming responses.
2. The Proper Procedure for Temporary and Pre-Judgment Relief
Requests
Practitioners and courts should treat requests for temporary and prejudgment
relief as motions rather than pleadings. While the prevalence
of temporary relief is almost unique to domestic relations cases, neither
this nor any of the other distinguishing characteristics of a domestic
relations case render the CPL and its treatment of pre-judgment requests
for relief as motions incompatible or ineffective.
The procedure advocated here is consistent with injunctive relief
practice under Article XI of the Code,76 which historically served as the
basis for statutory divorce procedure.77 Typically, a party seeking
injunctive relief in a pending chancery case will file a motion for a
temporary restraining order (which is often combined with a motion for
preliminary injunction), supported by an affidavit and a memorandum
affidavit typically applies, by virtue of Supreme Court Rule 191(a), only to affidavits in
proceedings under Code of Civil Procedure sections 2-1005 (summary judgment), 2-619
(involuntary dismissal based on certain defects or defenses) and 2-301(b) (objection to
jurisdiction over person)); In re Marriage of Weaver, 592 N.E.2d 643, 650–51 (Ill. App. Ct. 1992)
(describing the facts stated in respondent’s affidavit in support of his motion to dismiss as a
factually insufficient petition to modify custody not deemed admitted when petitioner failed to
file a counter-affidavit because a motion to dismiss based on insufficient pleadings is equivalent
to a section 2-615 motion, which is not subject to Rule 191); In re Marriage of Gary, 894 N.E.2d
809, 813, 816 (Ill. App. Ct. 2008) (stating that, although the trial court “acted precipitously in
finding Sarah ‘in default’ and refusing to conduct an evidentiary hearing” when Sarah failed to
file a verified response to her husband’s motion for injunctive relief, the injunction was upheld
because Sarah only challenged the legal basis of her husband’s motion, not its factual basis).
That is not to say that one should not respond in writing to a motion for temporary relief,
especially where it contains material facts in dispute. To be sure, competent and effective
representation compels a written response, supported by affidavit when material facts are in
dispute.
76. Cf. In re Marriage of Pick, 458 N.E.2d 33, 37 (Ill. App. Ct. 1983) (explaining that section
501 of Marriage Act and Article XI of the Code should be “construed together as though they
were one statute”). See 735 ILL. COMP. STAT. 5/11-101 (2006) (stating that temporary restraining
orders cannot be granted without notice to the adverse party, unless there is immediate risk of
injury or loss); 735 ILL. COMP. STAT. 5/11-102 (2006) (stating that there cannot be a preliminary
injunction without previous notice of the time and place of the application provided to the adverse
party).
77. See H. JOSEPH GITLIN, GITLIN ON DIVORCE: A GUIDE TO ILLINOIS MATRIMONIAL LAW
ch. 5-1(d), (3d ed. 2007) (discussing pleadings and the necessity of verifying certain types of
pleadings).
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924 Loyola University Chicago Law Journal [Vol. 40
of law.78 The respondent will file a memorandum of law in opposition
to the motion, supported by affidavit, if necessary.79 If the motion does
not present a sufficient factual basis, then the court will not order
injunctive relief.80 An evidentiary hearing on a motion for a
preliminary injunction is generally required when a dispute of material
fact exists.81
Likewise, a request for temporary or other pre-judgment relief in a
dissolution of marriage case should be brought by motion, and if
necessary, supported by affidavit or verification by certification.82 The
non-moving party should file a response memorandum explaining why
the moving party is not entitled to the relief she seeks (including any
affirmative matters defeating the request for temporary relief),
supported by affidavit if necessary. If the court determines that
disputed issues of material fact exist, an evidentiary hearing may be
required in advance of trial.83 Even if the lawyer fails to challenge his
opponent’s procedural failings, the court is well-advised to sua sponte
require adherence to the CPL and other applicable rules of procedure.
In so doing, the court will put an end to many of the unnecessary, and
indeed legally improper, practices that have become mainstays of
temporary relief litigation, and, in the course, strengthen its own ability
to decide pre-trial issues in a just, orderly and expeditious manner.84
78. Cf. Hon. Richard A. Siebel (ret’d.), Injunctions, in CHANCERY AND SPECIAL REMEDIES
2004, §§ 16.37.–.40 (Ill. Inst. for Continuing Legal Educ. 2004, supp. 2006) (when a case has not
been commenced yet, the typical practice is to file a verified complaint, a motion for injunctive
relief, and a supporting memorandum of law).
79. Cf.id.
80. SeeIn re Marriage of Grauer, 479 N.E.2d 982, 986–87 (Ill. App. Ct. 1985) (stating that a
motion for a temporary restraining order must demonstrate that the movant will suffer immediate
and irreparable injury absent injunctive relief).
81. See Office Electronics, Inc. v. Adell, 593 N.E.2d 732, 735–36 (Ill. App. Ct. 1992).
82. See 735 ILL. COMP. STAT. 5/1-109 (2006) (describing the verification by certification
process required to validate filed documents).
83. Of course, it is ultimately incumbent on the moving party to request an evidentiary
hearing. Otherwise, the issue may be waived. Cf. In re Marriage of Shedbalkar, 419 N.E.2d 409,
412 (Ill. App. Ct. 1981) (“The simple answer to petitioner’s complaint that she was deprived of
an evidentiary hearing on the issue of property, maintenance and support is that she did not
request one.”)
84. See J.S.A. v. M.H., 863 N.E.2d 236, 244–45 (Ill. 2007) (“[T]he trial court possesses the
inherent authority to control its own docket and the course of litigation, including the authority to
prevent undue delay in the disposition of cases caused by abuse of litigation process.”).
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B. Dissipation
Dissipation is one of the factors to be considered when dividing
marital property under section 503(d) of the Marriage Act.85 It arises
when marital property is improperly used for the sole benefit of one
spouse, for a purpose unrelated to the marriage, at a time when the
marriage is undergoing an irretrievable breakdown.86 Two commonly
misunderstood procedural aspects of a dissipation charge are (1)
whether the party seeking a finding of dissipation is required to notify
the other with a “Notice of Claim of Dissipation,” or similar paper in
advance of trial, and (2) which party bears the initial burden of proof at
trial. This Section begins with a brief introduction to the concept of
dissipation and then discusses the common procedural
misunderstandings surrounding the prosecution and defense of a
dissipation charge.
The concept of dissipation is premised on waste.87 Generally,
extraordinary expenses that clearly do not further common marital
interests are considered dissipation, while legitimate living expenses
after the irreconcilable breakdown of the marriage are not.88 A party
charged with dissipation has the burden of proving by clear and
convincing evidence that he or she did not dissipate the assets at issue.89
General and vague statements that funds were spent on marital expenses
or bills are inadequate to avoid a finding of dissipation.90 However, the
burden does not shift to the party charged with dissipation until the
proponent of the claim makes a preliminary showing or, in other words,
a prima facie case for dissipation.91
85. 750 ILL. COMP. STAT. 5/503(d) (2006) (describing dissipation of marital and non-marital
property as a relevant factor in dividing property in just proportions).
86. See, e.g., In re Marriage of O’Neill, 563 N.E.2d 494, 498 (Ill. 1990); In re Marriage of
Holthaus, 899 N.E.2d 355, 359 (Ill. App. Ct. 2008).
87. See In re Marriage of Miller, 796 N.E.2d 135, 141 (Ill. App. Ct. 2003) (there is no
dissipation unless the erring spouse diminishes the marital estate’s value).
88. In re Marriage of Hagshenas, 600 N.E.2d 437, 449 (Ill. App. Ct. 1992) (“The issue is not
whether the spending is consistent with that engaged in prior to the breakdown but, rather,
whether such spending was for the sole benefit of one of the spouses for a purpose unrelated to
the marriage.”); In re Marriage of Zweig, 798 N.E.2d 1223, 1229 (Ill. App. Ct. 2003) (observing
that credit card receipts, bank statements, and bills are kinds of documents that may be used to
examine propriety of use of marital funds).
89. See, e.g., Marriage of Bush, 567 N.E.2d 1078, 1082 (Ill. App. Ct. 1991).
90. See In re Marriage of Hubbs, 843 N.E.2d 478, 483 (Ill. App. Ct. 2006).
91. See, e.g., In re Marriage of Jerome, 625 N.E.2d 1195, 1210 (Ill. App. Ct. 1994) (“Clearly,
once petitioner established that respondent had obtained exclusive control over the savings, the
burden shifted to respondent to show by clear and convincing evidence specifically how the funds
were spent.”); In re Marriage of Murphy, 631 N.E.2d 893, 895 (Ill. App. Ct. 1994) (“Once a
prima facie case of dissipation is made, the party charged with dissipation must establish by clear
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Many practitioners take the position that a dissipation claim may only
be prosecuted if the proponent has filed a notice identifying with
particularity expenditures constituting dissipation. However, the
Marriage Act, CPL, and Supreme Court Rules do not provide for such
notice. Moreover, although there is no prohibition against it, dissipation
is not required to be pled in the dissolution petition.92 Rather, as the
model matrimonial interrogatories under Supreme Court Rule 213
demonstrate, it is incumbent upon counsel to conduct discovery with
respect to dissipation that may be charged against his client. If a party
is served with discovery bearing on any charge of dissipation, then, of
course, he is required to answer accordingly. But nothing is required
beyond that. No law of procedure imposes a higher disclosure
obligation for dissipation than any of the other financial issues in a
dissolution case. Should a party forego discovery, the opposing party is
not prohibited from pursuing a dissipation claim even if he did not
provide notice of it to the other side.93
Zito v. Zito94 is often cited for the proposition that one must serve a
notice of claim of dissipation on his opponent. But a close examination
of the case fails to bear this out. In Zito, the court held that the husband
waived his dissipation claim against his wife when he failed to (a) argue
the matter at trial, and (b) comply with an order to file a pre-trial
memorandum pursuant to Cook County Circuit Court Rule 13.4(h)(iv),
which would have required him to disclose whether he was charging
dissipation. Although a party may be required to disclose the basis of
his dissipation charge pursuant to a discovery request or local court rule,
Zito did not impose any additional disclosure obligation on the party
charging dissipation.
Another not uncommon issue is determining what burden the
proponent of the dissipation charge bears at trial. Some practitioners
take the position that once a “Notice of Claim of Dissipation” is served
on the other party, they are relieved of their obligation to present prima
facie evidence of dissipation at trial. Under this approach, the mere
filing of the notice is sufficient to establish a prima facie case of
and convincing evidence how the funds were spent.”).
92. See 750 ILL. COMP. STAT. 5/403(a) (2006) (omitting dissipation from the minimal
pleading requirements).
93. Cf. In re Marriage of Henke, 728 N.E.2d 1137, 1151 (Ill. App. Ct. 2000) (affirming trial
court’s sua sponte finding of dissipation where, although husband was not given notice that
dissipation would be charged, he had the opportunity to present evidence of how funds at issue
were spent); In re Marriage of Vancura, 825 N.E.2d 345, 351–52 (Ill. App. Ct. 2005) (reiterating
the finding in Henke).
94. Zito v. Zito, 554 N.E.2d 541 (Ill. App. Ct. 1990).
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dissipation and the responding party bears the initial burden at trial to
rebut the charge by clear and convincing evidence. However, no rule of
law supports this theory. The burden shifts to the party charged with
dissipation only after the party charging dissipation makes a prima facie
case.95 Otherwise, even a baseless or speculative charge of dissipation
would shift the burden to the party charged to refute the allegations.96 It
would be an extraordinary rule of law that would relieve the party
charging dissipation from presenting any evidence simply on the basis
of a paper filed prior to trial. A prima facie case of dissipation is not
made of matters presented outside of trial; rather, it is made when the
party prosecuting the charge introduces evidence at trial that, when
viewed in the aspect most favorable to the burdened party, is sufficient
to enable the trier of fact reasonably to find the issue for that party.97
Failure to satisfy the burden of production requires a decision by the
court as a matter of law on the particular issue adverse to the burdened
party.98 Thus, the party prosecuting a charge of dissipation who fails to
present any evidence at trial, but rather relies on a pre-trial notice of
dissipation, fails to make a prima facie case of dissipation, requiring the
court to make a finding against that party.
In sum, while the procedures regarding a charge of dissipation are
often misunderstood by practitioners, a fair and close reading of case
law, the Marriage Act, CPL, and the Supreme Court Rules make the
following clear: (1) unless a discovery request or local court rules
requires disclosure of the basis of the dissipation charge, a “Notice of
Claim of Dissipation” or similar paper is not required to charge
dissipation; and (2) the party charging dissipation bears the initial
95. See supra note 91 and accompanying text.
96. Cf. In re Marriage of Hazel, 579 N.E.2d 1265,1267 (Ill. App. Ct. 1991) (“To require every
expense and economic decision to be explained by clear and specific evidence, without requiring
some demonstration that a threshold has been crossed, adds an unnecessary and wasteful burden
of time and expense. . . . The legislature did not intend to make the courts auditors for every
marriage that fails.” (citation omitted)); In re Marriage of Manker, 874 N.E.2d 880, 890 (Ill. App.
Ct. 2007) (“[O]nce a prima facie case for dissipation has been made, the burden shifts to the party
charged with dissipation . . . .”); In re Marriage of Weiler, 629 N.E.2d 1216, 1222–23 (Ill. App.
Ct. 1994) (“[O]nce it has been established that one party has liquidated marital assets, the party
charged with dissipation must establish by clear and specific evidence how the funds were spent;
general and vague statements . . . are inadequate to avoid a finding of dissipation.”). See also
Jerome, 625 N.E.2d at 1210 (stating that vague comments that funds were spent on marital needs
are not enough to avoid a finding of dissipation).
97. See generally MICHAEL H. GRAHAM, CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS
EVIDENCE § 301.4 (8th ed. 2004) (discussing that the burden of producing evidence is satisfied
with evidence suggesting that the trier of fact could find that each element is probably true).
98. Id.
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burden of production to present prima facie evidence of dissipation at
trial.
C. Duty to Seasonably Update Discovery
The duty to seasonably update and amend discovery answers or
responses is often misunderstood and misused by practitioners in
dissolution of marriage cases. Supreme Court Rule 213(i) imposes
upon a party “a duty to seasonably supplement or amend any prior
answer or response when new or additional information subsequently
becomes known to that party.”99 Despite the obviously proper purpose
of this rule, counsel will sometimes, under the guise of a seasonable
update, answer discovery or otherwise produce evidence on the eve of
trial which should have been disclosed well in advance of trial in
response to interrogatories or document production requests. Rule
213(i) is not intended to give the recalcitrant litigant a safe harbor to
produce evidence in an untimely manner. This Section examines the
limited scope of Rule 213(i).
In a recent case, White v. Garlock Sealing Technologies, LLC,100 the
court granted the plaintiff a new trial when the defendant failed to
disclose, pursuant to Rule 213(i), that its controlled expert had formed a
new opinion which had not previously been disclosed, even though the
new opinion was not elicited in the defendant’s direct examination but
was only offered on cross-examination by the plaintiff. In so holding,
the court stated that the plaintiff “had an absolute right to conduct her
cross-examination of Dr. Smith [defendant’s expert] in the confidence
that she knew all of his pertinent opinions regarding the case. Garlock
[defendant] had the duty under Rule 213(i) to make that right a
reality.”101
The limited purpose of Rule 213(i) is analogous to the limited
purpose of Rule 237(b), which provides that a party may serve on
another party a notice to produce at trial original documents or other
tangible things previously produced during discovery. Just as Rule
237(b) may not be used by the non-diligent litigant to seek discovery for
the first time,102 so too Rule 213(i) may not be used by the non-diligent
99. ILL. SUP. CT. R. 213.
100. White v. Garlock Sealing Technologies, LLC, 869 N.E.2d 244 (Ill. App. Ct. 2007).
101. Id. at 258.
102. See Campen v. Executive House Hotel, Inc., 434 N.E.2d 511, 521 (Ill. App. Ct. 1982)
(stating that pre-trial discovery should have been used). An exception to this rule exists for
expedited hearings in domestic relations cases. Because of the important issues that must be
decided on an expedited basis, such as temporary custody and support, the trial court should have
the benefit of the attendance of individuals and production of documents and tangible things. ILL.
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litigant to answer discovery for the first time. Thus, a party who
without justification fails to respond, or does not completely respond, to
matrimonial interrogatories or requests to produce documents during
discovery cannot invoke Rule 213(i) as a defense to a motion to bar
evidence disclosed on the eve of trial that should have been disclosed
earlier. Exclusion of such evidence at trial is usually well within a trial
court’s discretion.
On a related note, it is not unusual for counsel to seek a continuance
on the day, or eve, of trial because the opposing party has not complied
with discovery requests or even discovery orders entered months before
trial. Although the court has discretion to continue a trial date, the trial
of a case shall not be delayed to permit discovery unless due diligence is
shown.103 In these circumstances, the court should inquire about what
steps the moving party took to seek compliance since he issued
discovery or the court entered a discovery order. If the moving party
has failed to invoke the tools available to him under the CPL to enforce
his rights, then the court generally should not continue the trial date. Of
course, evidence that should have been produced in discovery but was
not will likely be barred at trial. Ultimately, Rule 213(i) addresses only
genuine seasonable updates and amendments. Further, a request for a
trial continuance to permit discovery is appropriate only in exceptional
circumstances. Both courts and counsel should respect these narrow
provisions of procedural law.
D. Publication Notice
Notice by publication is another misused and, indeed, sometimes
abused, procedural tool in dissolution of marriage cases. While a court
may obtain in rem jurisdiction over the status of a marriage based on
publication notice to a respondent, not surprisingly, respondents very
rarely appear in the action following publication notice. Too often,
however, the petitioner seeks default judgment without having
performed the statutorily required due diligence in attempting to locate
the respondent. These cases deserve closer attention from the courts
because the federal Due Process Clause104 mandates a mode of service
reasonably calculated to apprise the respondent of the claim against
him, and where a judgment is entered against a respondent based on
SUP. CT. R. 237.
103. See ILL. SUP. CT. R. 201; ILL. SUP. CT. R. 231; Yassin v. Certified Grocers of Illinois,
Inc., 502 N.E.2d 315, 326–27 (Ill. App. Ct. 1986) (“It is within the trial court’s discretion to
weigh the equities and make the final determination with respect to discovery orders.”).
104. U.S. CONST. amend. XIV § 1.
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publication notice but the petitioner has not exercised sufficient
diligence to locate the respondent, the judgment will be subject to being
vacated.
Every defendant in an action filed against her in Illinois is entitled to
receive the best possible notice of the pending suit, and it is only where
personal service of summons cannot be had that substituted or
constructive service may be permitted.105 Jurisdiction acquired by
means of publication is only allowed in certain limited cases and only
when the statutory requirements for such service are strictly
followed.106 Section 2-206(a) of the CPL governs service by
publication and requires that the plaintiff file an affidavit stating that the
defendant “resides or has gone out of this State, or on due inquiry
cannot be found, or is concealed within this State, so that process cannot
be served upon him or her.”107 Additionally, the affidavit must state
that “the place of residence of the defendant, if known or that upon
diligent inquiry his or her place of residence cannot be ascertained.”108
Therefore, plaintiffs are required to exercise due diligence and due
inquiry when resorting to service by publication.109 A defendant can
challenge a plaintiff’s affidavit by filing an affidavit showing that he
could have been found had the plaintiff made a due inquiry.110 Once
the defendant has filed such an affidavit, the plaintiff must produce
evidence establishing due inquiry.111
The phrases “on due inquiry” and “upon diligent inquiry” are not
included in the statute as “pro forma or useless phrases requiring mere
perfunctory performance, but, on the contrary, require an honest and
well-directed effort to ascertain the whereabouts of a defendant by
inquiry as full as circumstances permit.”112 While diligence or due
inquiry in ascertaining a defendant’s residence is governed by the
circumstances of each case,113 where the plaintiff’s efforts to comply
105. Bell Fed. Sav. & Loan Ass’n. v. Horton, 376 N.E.2d 1029, 1032 (Ill. App. Ct. 1978)
(questioning whether the plaintiff was justified in using alternative notice means).
106. Id.
107. 735 ILL. COMP. STAT. 5/2-206(a) (2006).
108. Id.
109. See Home State Sav. Ass’n. v. Powell, 392 N.E.2d 598, 599 (Ill. App. Ct. 1979) (“Due
inquiry and diligence are statutory prerequisites for service by publication.”).
110. See Household Finance Corp. v. Volpert, 592 N.E.2d 98, 99 (Ill. App. Ct. 1992).
111. See First Bank & Trust Co. v. King, 726 N.E.2d 621, 623 (Ill. App. Ct. 2000).
112. Bank of New York v. Unknown Heirs & Legatees, 860 N.E.2d 1113, 1117–18 (Ill. App.
Ct. 2006) (noting that the plaintiff could have easily inquired of defendant’s siblings before
resorting to publication service).
113. City of Chicago v. Logan, 205 N.E.2d 795, 797 (Ill. App. Ct. 1965).
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with the statutory requirements have been “casual, routine, or spiritless,
service by publication is not justified.”114
Further, section 405 of the Marriage Act provides:
[I]n no case of default shall the court grant a dissolution of marriage. .
. unless the judge is satisfied that all proper means have been taken to
notify the respondent of the pendency of the suit. Whenever the judge
is satisfied that the interests of the respondent require it, the court may
order such additional notice as may be required.115
For example, where the parties were living together and the
respondent was not aware of the prove-up hearing for a default
judgment, the court should have ordered the petitioner to provide notice
to the respondent.116 For purposes of the Uniform Child-Custody
Jurisdiction and Enforcement Act, notice to persons outside Illinois
“must be given in a manner reasonably calculated to give actual notice
but may be by publication if other means are not effective.”117
Where the petitioner does not know where the respondent resides,
due inquiry may require him to make inquiries of the respondent’s
neighbors and attempt to ascertain the respondent’s place of
employment.118 Due inquiry may also require checking employment
records and court records to locate a respondent.119 The failure to send
notice to the defendant’s last known address divests a court of personal
jurisdiction of a defendant.120 However, the petitioner is not required to
114. Bank of N.Y., 860 N.E.2d at 1118.
115. 750 ILL. COMP. STAT. 5/405 (2006).
116. In re Marriage of Jackson, 631 N.E.2d 848, 850–52 (Ill. App. Ct. 1994). Specially
concurring, Justice Cook stated that section 405 of the Marriage Act has its greatest effect in
cases terminating the status of marriage which are commenced by service by publication. Id. at
852 (Cook, J., concurring). A party served with summons, as was the case in Jackson, has notice
of the pendency of the suit and neither the court nor petitioner is required to give notice of a
hearing to a party who has not filed an answer or appearance. Id. Once a court acquires
jurisdiction, it is the duty of the litigant to follow the progress of the case. Id.
117. 750 ILL. COMP. STAT. 36/108(a) (2006); see also In re Sophia G.L., 890 N.E.2d 470,
483–86 (Ill. 2008) (declining to register Indiana court’s child-custody judgment in Illinois court
where father, whose paternity was established during pendency of Indiana proceeding, was not
given notice of Indiana proceeding as required under section 205 of UCCJEA).
118. See Bell Fed. Sav. & Loan Ass’n v. Horton, 376 N.E.2d 1029, 1033 (Ill. App. Ct. 1978)
(stating that something more than lack of knowledge or information regarding the defendant is
required before publication is appropriate); see also Hartung v. Hartung, 8 Ill. App. 156, 159 (3d
Dist. 1881) (requiring the petitioner to “make inquiries of her neighbors and others, who would
probably be informed as to where her husband resided or could be found”).
119. See First Federal Savings & Loan Ass’n of Chi. v. Brown, 393 N.E.2d 574, 578 (Ill. App.
Ct. 1979).
120. See In re Marriage of Wilson, 502 N.E.2d 447, 449 (Ill. App. Ct. 1986) (quoting
Markham v. Markham, 365 N.E.2d 308, 312 (Ill. App. Ct. 1977) (“[E]ven if the defendant was
not then living at such address it is not unreasonable to assume that his mail might have been sent
on to a forwarding address.”)).
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“make a tour of foreign States to verify information as to the residence
of defendants, in order that he may be able to state in his affidavit, on
personal knowledge, the residence of such defendants.”121
One might argue that simply dissolving a marriage causes little to no
harm because many important financial issues are necessarily reserved
in an in rem proceeding.122 But the dissolution judgment in an in rem
proceeding still has substantial impact upon a respondent apart from the
marriage dissolution itself. For example, a court may, and usually does,
in the case of a petitioner with possession of a minor child of the parties,
make a custody award.123 Further, dissolution can have a substantial
negative impact on a respondent’s immigration status.124 Thus, whether
a petitioner has exercised diligence in attempting to locate the
respondent before resorting to publication notice is no small matter.
Counsel should be prepared to elicit testimony on what efforts his client
made to locate the respondent, including efforts to contact immediate
family, other relatives, friends, and/or co-workers of the respondent, as
well as older children of the parties. An internet and telephone
directory search may also be an effective means to locate a respondent.
At the same time, the court should consider individual circumstances
of the case. For example, a history of physical violence or a pending
order of protection may excuse petitioner from attempting to make
personal contact with the petitioner to determine his whereabouts. Even
then, however, the respondent’s whereabouts may be determined
through trusted third parties or electronic databases. Moreover, because
Supreme Court Rule 137 requires counsel to make a reasonable inquiry
121. Pennington v. Pennington, 326 N.E.2d 431, 435 (Ill. App. Ct. 1975) (quoting McEvilly v.
Brownfield, 101 N.E.2d 229, 230 (Ill. 1913)).
122. When the court exercises in rem jurisdiction over the status of the marriage, it may
dissolve the marriage, determine custody and visitation rights, and make disposition as to real and
personal property located in Illinois. Wilson v. Smart, 155 N.E.2d 288, 291 (Ill. 1927).
However, in order to enter a child support or maintenance order against a respondent, the court
must have in personam jurisdiction over the respondent. See In re Marriage of Brown, 506
N.E.2d 727, 729 (Ill. App. Ct. 1987).
123. See 750 ILL. COMP. STAT. 36/201(c) (2006) (Uniform Child-Custody Jurisdiction and
Enforcement Act provides that physical presence of, or personal jurisdiction over, a party or a
child is not necessary or sufficient to make a child-custody determination); In re Marriage of
Schuham, 458 N.E.2d 559, 563 (Ill. App. Ct. 1983) (explaining that the custody status of a child
may be decided quasi in rem). But in no instance should the court enter a joint custody order
when the respondent is in default. See In re Marriage of Jackson, 631 N.E.2d 848, 851 (Ill. App.
Ct. 1994).
124. Since 1986, lawful permanent residence obtained by an alien spouse or son or daughter
on the basis of a marriage entered into less than two years earlier is granted conditionally. 8
U.S.C. § 1186a(a)(1) (2000). The Immigration and Naturalization Service may terminate an
alien’s conditional residence status within the two-year period if the marriage is terminated, other
than by the death of a spouse. 8 U.S.C. § 1186a(b)(1)(A)(ii) (2000).
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into the basis of papers filed with the court,125 counsel may not blindly
accept his client’s statement that “I don’t know where he is and don’t
want anything to do with him,” when his client has made no effort to
locate the respondent.126
Experience teaches that when the due diligence and inquiry
requirements are enforced, fewer default in rem judgments are entered
pursuant to publication notice. Thus, courts and practitioners must
become better informed of the antecedent duties attendant to publication
by notice, and those requirements should be strictly enforced.
E. Contesting Personal Jurisdiction
The procedure for contesting personal jurisdiction continues to be
one of the most misunderstood aspects of Illinois civil procedure.
Effective January 2000, the CPL underwent one of its most significant
changes since it was enacted, eliminating the use of the “special
appearance” to contest personal jurisdiction. Although it has been more
than eight years since this revision, a small minority of domestic
relations practitioners still cling to the special and limited appearance
when contesting personal jurisdiction. Even more still do not appreciate
the substantial change in law on waiver of the personal jurisdiction
defense.
KSAC Corp. v. Recycle Free, Inc.,127 a case that should be required
reading for all litigators, is illustrative of this lack of understanding.
KSAC Corp. addressed whether a defendant waives his jurisdictional
defense if he files an appearance, jury demand, and response to a
request to admit facts before filing a motion seeking dismissal based on
lack of personal jurisdiction and a forum selection clause in a contract.
Deciding that the defendant did not waive its jurisdiction defense, the
court observed that four significant changes were made to section 2-301
of the Code,128 the statute governing personal jurisdiction challenges.
First, although the concept of the appearance remains intact after the
2000 revisions, the special appearance no longer exists, a fact that
125. Chicago Title & Trust Co. v. Anderson, 532 N.E.2d 595, 602–03 (Ill. App. Ct. 1988)
(imposing Rule 137 sanctions on an attorney who failed to (a) perform an objective assessment of
evidence supporting his client’s denial that he was in default under terms of his mortgage, and (b)
advise the court and opposing counsel once he became aware that his client was in default).
126. Bell Federal Savings & Loan Ass’n v. Horton, 376 N.E.2d 1029, 1033 (Ill. App. Ct.
1978) (stating that “something more than mere want of knowledge and lack of information
concerning the defendant” must be shown to justify publication notice).
127. KSAC Corp. v. Recycle Free, Inc., 846 N.E.2d 1021 (Ill. App. Ct. 2006).
128. 735 ILL. COMP. STAT. 5/2-301 (2006).
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“seems to have gone unnoticed by some courts.”129 Second, the special
appearance having been eliminated, the statute no longer provides that
any other appearance is a “general appearance,” which would have
amounted to a waiver of a personal jurisdiction challenge under prior
law.130 Third, a defendant may combine a jurisdictional challenge with
another defense in the same motion, again something that would have
amounted to a general appearance and, thus, a waiver of the
jurisdictional defense, under prior law.131 Finally, the waiver provision
of the statute is much narrower than prior law.
The court concluded that, by filing an appearance and jury demand
and participating in discovery, the defendant did not waive its personal
jurisdiction defense because the plain language of section 2-301(a-5) of
the Code provides for waiver only if the defendant files a pleading or
motion (except a motion for extension of time to answer or otherwise
appear) before filing a motion challenging personal jurisdiction.132
Because an appearance, jury demand and response to discovery are
neither pleadings nor motions, the defendant did not waive its
jurisdictional defense.133 Although personal jurisdiction challenges are
relatively infrequent in domestic relations cases, the law in this area has
changed dramatically, to the substantial benefit of the courts and bar.
F. Dismissal for Want of Prosecution and Voluntary Dismissal
Like other civil cases, a dissolution of marriage action may be
dismissed for want of prosecution,134 or voluntarily dismissed under
section 2-1009 of the Code.135 However, unlike most civil actions, a
129. KSAC Corp., 846 N.E.2d at 1023.
130. Id.
131. Id.
132. Id.
133. Id. On a related note, the First and Second District Appellate Courts have split on the
reach of a post-judgment waiver of a personal jurisdiction defense. Compare C.T.A.S.S. & U.
Fed. Credit Union v. Johnson, 891 N.E.2d 558, 561 (Ill. App. Ct. 2008) (plaintiff’s waiver of
personal jurisdiction defense by filing motion to vacate sheriff’s sale before motion to vacate
judgment for lack of jurisdiction operates prospectively only), with GMB Financial Group, Inc. v.
Marzano, 899 N.E.2d 298 (Ill. App. Ct. 2008) (plaintiff’s waiver of personal jurisdiction defense
by filing motion to vacate sheriff’s sale before motion to vacate judgment for lack of jurisdiction
operates both prospectively and retroactively).
134. A plaintiff’s failure to take any action as ordered by the trial court evidences a want of
prosecution by that party, and a trial court may dismiss a suit for the failure of the complainant to
prosecute it with due diligence. Bejda v. SGL Indus., Inc., 412 N.E.2d 464, 467 (Ill. 1980).
However, a dismissal for want of prosecution is error unless the party has been guilty of
inexcusable delay in prosecuting the suit. In re Marriage of Hanlon, 404 N.E.2d 873, 875–76 (Ill.
App. Ct. 1980).
135. Section 2-1009 of the Code provides that the plaintiff may at any time before trial or
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dissolution action is not subject to a limitations period.136 The effect of
this distinction on a petitioner’s ability to re-file after a dismissal for
want of prosecution or voluntary dismissal is understandably the subject
of confusion among practitioners. Confusion also exists about how the
absence of a limitations period impacts the petitioner’s ability to appeal
or attack such an order under sections 2-1301 and 2-1401 of the Code.
Accordingly, this Section addresses the nature and implications of this
distinction in dissolution of marriage cases.
Section 13-217 of the Code, otherwise known as the savings statute,
provides in pertinent part that when an action is voluntarily dismissed or
dismissed for want of prosecution the plaintiff “may commence a new
action within one year or within the remaining period of limitation,
whichever is greater.”137 The savings statute only authorizes one refiling
of an action for which the statute of limitations has lapsed.138
However, the savings statute does not apply to a dissolution of marriage
action. Article XIII of the Code, where the savings statute is found, is
not expressly applicable to dissolution proceedings; rather the Marriage
Act provides that the “Civil Practice Law,” or Article II of the Code,139
hearing begins dismiss his action as to any defendant, without prejudice, and, after trial or hearing
begins, dismiss his action only on terms set by court upon a stipulation of the parties or on motion
specifying the ground for dismissal. 735 ILL. COMP. STAT. 5/2-1009 (2006). A temporary relief
hearing under the Marriage Act is not a trial or hearing for purposes of the statute. See In re
Marriage of Mostow, 420 N.E.2d 731, 733 (Ill. App. Ct. 1981) (holding that no trial or hearing
had begun for purposes of the voluntary dismissal statute even though the court granted
temporary maintenance and support following a four-day evidentiary hearing); In re Marriage of
Fine, 452 N.E.2d 691, 693 (Ill. App. Ct. 1983) (affirming order of voluntary dismissal over
respondent’s objection that hearing had begun when court denied the petitioner’s motions for
temporary maintenance and preliminary injunction). But see Basinski v. Basinski, 156 N.E.2d
225, 227–28 (Ill. App. Ct. 1959) (hearing commenced where court-appointed master heard
evidence on, among other things, temporary alimony, temporary injunction, and chattel mortgage
foreclosure).
136. Unlike an action for declaration of invalidity of marriage, which must be commenced
within the time periods established in section 302 of the Marriage Act, see 750 ILL. COMP. STAT.
5/302 (2006), the Marriage Act contains no time limit within which to commence a dissolution of
marriage action. See 750 ILL. COMP. STAT. 5/101 (2006). Further, the five-year statute of
limitations for “all civil actions not otherwise provided for” in section 13-205 of the Code
arguably does not apply because it is contained in Article XIII of the Code. 735 ILL. COMP. STAT.
5/13-205 (2006). Only the CPL, or Article II of the Code, expressly applies to dissolution
proceedings. 750 ILL. COMP. STAT. 5/105(a) (2006). Cf. Carlin v. Carlin, 65 Ill. App. 160, 166
(Ill. App. Ct. 1896) (noting that there was no statute of limitations for divorce actions).
137. 735 ILL. COMP. STAT. 5/13-217 (2006).
138. See Gendek v. Jehangir, 518 N.E.2d 1051, 1053 (Ill. 1988) (“A contrary interpretation
would foster abuse of the judicial system by allowing a nondiligent plaintiff to circumvent
(through repeated filings and dismissals of substantially identical claims) the otherwise applicable
statute of limitations.”).
139. 735 ILL. COMP. STAT. 5/1-101(b) (2006).
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applies to all proceedings under the Marriage Act.140 Moreover, the
time limit for re-filing under the savings statute could not sensibly apply
to a dissolution action because it is not subject to a statute of limitations.
Thus, unlike the plaintiff in a time-limited action, a petitioner in a
dissolution action should have an absolute right to re-file against the
same party and to re-allege the same cause of action at any time.141
Perhaps the more interesting question is whether, like a plaintiff in a
time-limited action, a petitioner in a dissolution case is limited to one
re-filing after a dismissal for want of prosecution or voluntary dismissal.
Unlike time-limited actions, the savings statute, from where the one refiling
rule derives,142 does not apply to a dissolution action. Moreover,
because a dissolution action is not time limited, it may not be necessary
to limit to one the number of re-filings in a dissolution case in order to
prevent abusive repeated filings and dismissals of substantially identical
claims. Further, the public policy of Illinois to promote reconciliation
and family unity143 would be served by permitting more than one refiling.
But even if the petitioner is limited to one re-filing based on the
same facts following a dismissal for want of prosecution or voluntary
dismissal, presumably he may later file a dissolution action based on
different facts. Thus, a petitioner should be able to bring a third
140. 750 ILL. COMP. STAT. 5/105(a) (2006).
141. Cf. People ex rel. Redd v. Mulholland, 481 N.E.2d 307, 309 (Ill. App. Ct. 1985)
(paternity action may be re-filed more than one year after it was voluntarily dismissed because the
two year statute of limitations was held unconstitutional, and, thus, the court found that there was
“no limitation period for the filing of a paternity complaint during the minority of the child at
issue”). In In re Marriage of Semonchik, 733 N.E.2d 811, 816 (Ill. App. Ct. 2000), the court held
that under the savings statute, instead of challenging the trial court’s denial of his motion to
vacate the order voluntarily dismissing his post-dissolution petition to modify support, the exhusband
had the right to file another motion to modify support. The court reached the correct
result, but its reasoning was unpersuasive. See id. The court did not explain how the savings
statute could apply to a post-dissolution proceeding which is not time-limited. In any event, the
court’s determination in this regard is likely dicta because nothing in the court’s opinion indicates
that the ex-wife even challenged the ex-husband’s ability to refile. See id.
142. See Gendek, 518 N.E.2d at 1053 (“Therefore, we find that plaintiffs are entitled to only
one refiling of a cause of action pursuant to the saving provision of section 13-217 of the Code of
Civil Procedure after taking a voluntary dismissal of their original causes of action.” (citation
omitted)).
143. See 750 ILL. COMP. STAT. 5/102 (2006) (one purpose of the Marriage Act is to
strengthen and preserve integrity of marriage and safeguard family relationships); 750 ILL. COMP.
STAT. 5/404(a) (2006) (authorizing courts to order conciliation conference). Cf. In re Marriage of
Lucht, 701 N.E.2d 267, 269 (Ill. App. Ct. 1998) (policy of preserving marital relationship has at
times “been invoked at a cost to other legal interests” (citing In re Marriage of Malec, 562 N.E.2d
1010 (Ill. App. Ct. 1990))); In re Fisher, 153 N.E.2d 832, 840 (Ill. 1958) (against public policy
for attorney to take assignment of alimony or enter into contingent fee agreements in dissolution
cases because it would tend to encourage dissolution rather than reconciliation).
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dissolution petition if, after the last dismissal, irreconcilable differences
continue to exist or different grounds for dissolution arise.144
Where the petitioner is not ready for trial, it is not unusual for him to
voluntarily dismiss his case (or even allow the case to be dismissed for
want of prosecution). In addition, a petitioner seeking to avoid
discovery may also voluntary dismiss his case.145 To avoid being left
with no recourse, it is not uncommon for the respondent to file a crosspetition
for dissolution of marriage. Beyond that, respondent may have
recourse against the petitioner who voluntarily dismisses his case to
avoid discovery under Supreme Court Rule 219(e). 146 First, in addition
to paying the respondent’s costs under section 2-1009(a) of the Code,
the petitioner, upon a finding of misconduct or unreasonable
compliance with a court order under Supreme Court Rule 219(e), will
also be required to pay the respondent’s “reasonable expenses incurred
in defending the action including but not limited to discovery expenses,
opinion witness fees, reproduction costs, travel expenses, postage, and
phone charges.”147 Second, if the petitioner refiles, Rule 219(e)
“requires the court to consider the prior litigation in determining what
discovery will be permitted, and what witnesses and evidence may be
barred.”148 Thus, although the right to take a voluntary dismissal
remains unchanged, adverse consequences may flow where the exercise
of that right is deemed an abusive practice.
A plaintiff in a time-limited action may not appeal from or attack an
order dismissing a case for want of prosecution. Supreme Court Rule
301 provides that “[e]very final judgment of a circuit court in a civil
case is appealable as of right.”149 A final judgment is “a determination
by the court on the issues presented by the pleadings which ascertains
and fixes absolutely and finally the rights of parties in the lawsuit.”150
144. In In re Marriage of Manns, 583 N.E.2d 707, 712 (Ill. App. Ct. 1991), the respondent,
appealing to the “inequities of the situation,” argued that “unlike other civil actions, an action for
dissolution of marriage can be brought as long as a marriage continues and that the respondent is,
therefore, on a treadmill, subject to indefinite dismissals under section 2-1009 and indefinite
refilings.” However, the court did not address the argument because the petitioner had only
dismissed her case once. Id.
145. Although Supreme Court Rule 219(e) states “[a] part[y] shall not be permitted to avoid
compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing [a]
lawsuit,” ILL. SUP. CT. R. 219(e), it does not restrict a party’s right to voluntarily dismiss his
action under section 2-1009 of the Code; rather, it “alters the consequences of taking a voluntary
dismissal.” Morrison v. Wagner, 729 N.E.2d 486, 488–89 (Ill. 2000).
146. ILL. SUP. CT. R. 219(e).
147. Morrison, 729 N.E.2d at 488–89 (quoting ILL. SUP. CT. R. 219(e)).
148. Id. at 489 (citing ILL. SUP. CT. R. 219(e)).
149. ILL. SUP. CT. R. 301.
150. Flores v. Dugan, 435 N.E.2d 480, 482 (Ill. 1982) (citing Towns v. Yellow Cab Co., 382
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In other words, “a judgment is final if it determines the litigation on the
merits so that, if affirmed, the only thing remaining is to proceed with
the execution of the judgment.”151 A dismissal for want of prosecution
in a time-limited action is not a final and appealable order under
Supreme Court Rule 301 because any prejudice the plaintiff may suffer
as a result of the trial court’s abuse of discretion in dismissing the case
is easily remedied by the plaintiff exercising her absolute right to re-file
the action against the same party and to re-allege the same cause of
action under the savings statute.152 In lieu of re-filing the action, the
plaintiff may, within the time period available for re-filing under the
savings statute, move to vacate the order dismissing the case for want of
prosecution.153 Further, because a dismissal for want of prosecution is
not a final order, the thirty-day and two-year limitation periods to attack
a judgment under sections 2-1301 and 2-1401 of the Code, respectively,
have no immediate application.154 Rather, a dismissal for want of
prosecution becomes final and appealable after the limitation period for
re-filing under the savings statute expires.155 Thus, a dismissal for want
of prosecution is interlocutory as long as the option to re-file is still
available to the plaintiff.156 After that, a dismissal for want of
prosecution becomes final, giving the party against whom the order was
entered up to thirty days under section 2-1301 of the Code and up to
two years under section 2-1401 of the Code, to move to vacate the
dismissal order.157
Whether a dismissal for want of prosecution in a dissolution case is a
final and appealable order has not been addressed by an appellate court.
N.E.2d 1217 (Ill. 1978); 49 C.J.S. Judgments § 5 (1947)).
151. Flores, 435 N.E.2d at 482 (citing People ex rel. Scott v. Silverstein, 429 N.E.2d 483 (Ill.
1981); Vill. of Niles v. Szczesny, 147 N.E.2d 371 (Ill. 1958)).
152. Id. (citing Aranda v. Hobart Mfg. Corp., 363 N.E.2d 796 (Ill. 1977); Franzese v. Trinko,
361 N.E.2d 585 (Ill. 1977)); Kahle v. John Deere Co, 472 N.E.2d 787, 788 (Ill. 1984). Illinois
follows a distinct minority view in this regard; the majority of jurisdictions in the United States
have held that a dismissal of a case without prejudice or with leave to re-file is an appealable final
order because it ends the litigation as far as the trial court is concerned. Wold v. Bull Valley
Mgmt. Co., Inc., 449 N.E.2d 112, 114 (Ill. 1983) (Simon, J., dissenting).
153. Progressive Universal Ins. Co. v. Hallman, 770 N.E.2d 717, 719–20 (Ill. App. Ct. 2002).
154. See id. at 719 (trial court could not have treated plaintiff’s motion to vacate a dismissal
for want of prosecution as a petition under section 2-1401 of the Code because it would be
theoretically inconsistent with notion that dismissal for want of prosecution remains interlocutory
during period available for re-filing under savings statute).
155. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 693 N.E.2d 338, 344 (Ill. 1998).
156. Sunderland ex rel. Poell v. Portes, 753 N.E.2d 1251, 1258 (Ill. App. Ct. 2001) (citing
S.C. Vaughan Oil Co., 693 N.E.2d at 344).
157. See S.C. Vaughan Oil Co., 693 N.E.2d at 344 (noting that after the re-filing period
expires, the judgment becomes final).
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Like plaintiffs in time-limited actions, a petitioner in a dissolution
action has the same re-filing remedy for a trial court’s abuse of
discretion in dismissing a case. However, unlike a time-limited action,
a dismissal for want of prosecution in a dissolution case will never
become final because the petitioner has an unlimited amount of time to
re-file. Thus, a dismissal for want of prosecution in a dissolution action
is likely to always remain an interlocutory order. On the other hand,
where repeated dismissals for want of prosecution rise to the level of an
abusive practice by a petitioner and the court bars him from re-filing,
then the order would be considered final.158
Finally, although the plaintiff in a time limited action has the option
to re-file under the savings statute, a voluntary dismissal order under
section 2-1009 of the Code is considered final and appealable.159 If the
defendant is not permitted to appeal a voluntary dismissal, he may be
prejudiced because he can never seek review of a trial court’s decision
that no trial or hearing had commenced, and that the plaintiff was
entitled to a voluntary dismissal without prejudice.160 Moreover, the
prejudice that the defendant may suffer cannot be remedied in a re-filed
action because it is a separate cause of action and the judge hearing it
has no jurisdiction to review the propriety of the dismissal of the earlier
case by another judge.161 Applied to a dissolution action, this rationale
may likewise support a respondent’s ability to appeal an order of
voluntary dismissal.162
158. Cf. Flores v. Dugan, 435 N.E.2d 480, 485 (Ill. 1982) (Simon, J., dissenting) (citing
Pettigrove v. Parro Const. Corp., 194 N.E.2d 521 (Ill. App. Ct. 1963); Liberty Mut. Ins. Co. v.
Congress Mich. Auto Park, Inc., 154 N.E.2d 298 (Ill. App. Ct. 1958)) (before the savings statute
was amended in 1967, a dismissal for want of prosecution was considered a final and appealable
order).
159. See Kahle v. John Deere Co., 472 N.E.2d 787, 788–89 (Ill. 1984).
160. Id. at 789.
161. Id. However, a voluntary dismissal order cannot be appealed by a plaintiff because he
requested the order. Id. By the same token, a plaintiff is not permitted to use section 2-1401 of
the Code to vacate the same unappealable order entered at his insistence. See Koffski v. Vill.of
N. Barrington, 609 N.E.2d 364, 370 (Ill. App. Ct. 1993). But cf. In re Marriage of Semonchik,
733 N.E.2d 811, 816–17 (Ill. App. Ct. 2000) (because voluntary dismissal order is final and
appealable, ex-husband lost right to appeal when more than thirty days lapsed after the court
denied his motion to vacate voluntary dismissal order entered at his insistence). Nevertheless,
section 2-1203 of the Code gives the trial court jurisdiction to hear a motion to vacate an order of
dismissal and reinstate a case that was voluntarily dismissed by the plaintiff pursuant to a
settlement agreement where the defendant allegedly failed to comply with the terms of the
settlement. Ripplinger v. Quigley, 597 N.E.2d 260, 265 (Ill. App. Ct. 1992).
162. Cf. In re Marriage of Barmak, 657 N.E.2d 730, 732 (Ill. App. Ct. 1995) (dismissing as
untimely a Supreme Court Rule 137 petition for sanctions filed more than thirty days after exwife
voluntarily dismissed her post-decree petition for fees to defend against ex-husband’s
petition for contribution to college expenses of the parties’ child).
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940 Loyola University Chicago Law Journal [Vol. 40
In sum, the rules relating to the re-filing of a dissolution action
following a voluntary dismissal or dismissal for want of prosecution are
different from other civil cases because a dissolution action is not timelimited
and the savings statute is not applicable. The ability to appeal
from a dismissal for want of prosecution in a dissolution action likewise
differs from other civil actions. On the other hand, there may be
occasion when a respondent may appeal from a voluntary dismissal in a
dissolution action just as a defendant in other civil actions.
G. Attorney Withdrawal on the Eve of or During Trial
It is nt uncommon for an attorney to seek to withdraw in a dissolution
of marriage case; indeed, it is far more common than in other civil
cases. More significant, however, is the incidence of attorneys seeking
to withdraw in dissolution actions on the eve of or even during trial.
Whatever the cause, withdrawal of counsel at a late stage in dissolution
proceedings presents substantial difficulties, not only for the client, but
also for the other parties, opposing counsel, the court, and for the
administration of justice generally. As a result, courts will carefully
scrutinize such requests. Counsel who treats the request to withdraw on
the eve of or during trial as a routine matter does himself and the court a
tremendous disservice. This Section discusses the few cases involving
an attorney’s request to withdraw on the eve of or during trial, including
how a court should address the attorney’s representation that ethical
obligations require his withdrawal. It suggests that, when considering
contested motions to withdraw, courts adopt the in camera approach
used in cases involving the crime-fraud exception to the attorney-client
privilege.
Illinois Supreme Court Rule 13 provides that an attorney’s motion to
withdraw “may be denied by the court if the granting of it would delay
the trial of the case, or would otherwise be inequitable.”163 Rule
13(c)(3) gives courts “the option of denying an attorney’s motion to
withdraw only if the granting of the motion would improperly delay the
trial or would otherwise be inequitable.”164 Rule 13 does not permit a
court “to deny a motion to withdraw for other reasons.”165 Thus, as the
Illinois Appellate Court has stated, “an attorney may end the attorneyclient
relationship with or without cause so long as the client is not left
163. ILL. SUP. CT. R. 13(c)(3).
164. In re J.D. & M.G., 772 N.E.2d 927, 935 (Ill. App. Ct. 2002) (citing In re Rose Lee Ann
L., 718 N.E.2d 623 (Ill. App. Ct. 1999)) (internal quotation marks omitted).
165. In re Rose Lee Ann L., 718 N.E.2d at 627.
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in a position where he is prejudiced.”166 A client’s failure to pay
attorney’s fees is ordinarily not a sufficient basis for the attorney’s
withdrawal after trial has begun.167
There are only a few cases addressing an attorney’s motion to
withdraw during or on the eve of trial, or a motion to withdraw that has
been contested by the client. In In re J.D.,168 the court affirmed the
denial of an attorney’s motion to withdraw in the middle of trial. In this
termination of parental rights case, after the court issued its oral ruling
finding the respondent to be an unfit parent, the respondent attacked the
minor children’s foster mothers. The court entered an order of
protection against the respondent and continued the matter for a hearing
to determine the best interests of the minor children. The respondent’s
attorney moved to withdraw, arguing that the Illinois Rules of
Professional Conduct (Illinois Rules) required her to withdraw because
she could be called as a witness either on behalf of, or against, her
client, in a criminal proceeding arising out of the attack. The court held
that the respondent’s attorney was not ethically required to withdraw
because Illinois Rules 3.7(a) and (b) only prohibit an attorney from
acting as both an advocate and witness on behalf of a client in the same
proceeding. If the respondent’s attorney was called as a witness to
testify, it would be in a separate criminal proceeding, not the child
protection proceeding.169
In In re Rose Lee Ann L.,170 the public guardian was permitted to
withdraw as counsel for the parents of a minor child in an action for
adjudication of wardship of the child by the state. The court held that
the attorney was required to withdraw under Rule 1.2(a) of the Illinois
Code of Professional Conduct when he could not abide by his client’s
decisions concerning the objective of the representation. The public
guardian stated that he had difficulty representing his clients,
themselves wards of the state, because he doubted that they were fit to
be the parents of the minor child.171
Finally, in People v. Howard, the court held that a trial court did not
abuse its discretion by granting an attorney representing a criminal
166. Id. (citing Herbster v. N. Am. Co. for Life & Health Ins., 501 N.E.2d 343 (Ill. App. Ct.
1986)).
167. Cf. People ex rel. Burris v. Maraviglia, 636 N.E.2d 717, 722–23 (Ill. App. Ct. 1993)
(denying attorney’s motion to withdraw filed after close of proofs on ground that client had not
paid his bill for legal services).
168. In re J.D. & M.G., 772 N.E.2d at 936.
169. See id. at 935–36.
170. In re Rose Lee Ann L., 718 N.E.2d at 628.
171. Id. at 626.
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942 Loyola University Chicago Law Journal [Vol. 40
defendant leave to withdraw prior to trial over the defendant’s objection
where the attorney expressed a strong desire to be released from his
obligation.172 The court stated that whatever his reasons, the attorney’s
insistence on withdrawal raised legitimate concerns about his
inclination and ability to effectively represent the defendant. In
addition, the court observed that the trial court’s independent obligation
to maintain the integrity and fairness of the defendant’s criminal trial
was at stake, which was served by allowing the attorney to withdraw.
At the same time, the court stated that although Illinois Rule 1.16 is
binding on the attorney, “it is not binding authority on the trial
court.”173 Finally, the court noted that “while the Rules of Professional
Conduct certainly may inform a trial court’s decision to permit an
attorney to withdraw, the court must have independent binding authority
for its decision.”174
But the commentary to Rule 1.16 of the American Bar Association’s
Model Rules of Professional Conduct (ABA Model Rules), upon which
Illinois Rule 1.16 is modeled,175 states:
[C]ourt approval or notice to the court is often required by applicable
law before a lawyer withdraws from pending litigation. Difficulty
may be encountered if withdrawal is based on the client’s demand that
the lawyer engage in unprofessional conduct. The court may request
an explanation for the withdrawal, while the lawyer may be bound to
keep confidential the facts that would constitute such an explanation.
The lawyer’s statement that professional considerations require
termination of the representation ordinarily should be accepted as
sufficient. Lawyers should be mindful of their obligations to both
clients and the court under Rules 1.6 and 3.3.176
Although the Illinois Supreme Court did not adopt the comments to
the ABA Model Rules, it has looked to the comments when construing
identical or substantially similar provisions of the Illinois Rules.177 No
Illinois court has addressed the apparent conflict between Howard and
the comment to the ABA Model Rule regarding the deference that the
court must give an attorney’s representation that ethical obligations
require his withdrawal.
172. People v. Howard, 876 N.E.2d 36, 53 (Ill. App. Ct. 2007).
173. Id. at 50.
174. Id.
175. Schwartz v. Cortelloni, 685 N.E.2d 871, 878 (Ill. 1997).
176. MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 3 (2002).
177. See id.; In re Smith, 659 N.E.2d 896, 902 (Ill. 1995) (referencing the commentary to the
ABA Model Rules).
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Even if an attorney’s representation that the Illinois Rules preclude
him from continuing to represent his client is entitled to deference,
difficulty may still arise if the client claims that the attorney’s
representation that ethical obligations require his withdrawal is
pretextual because confidential attorney-client communications will
necessarily be implicated. An example is when the breakdown in the
attorney-client relationship is based on non-payment of attorney’s fees.
One way to protect privileged communications between the attorney
and client may be for the court to conduct an ex parte, in camera
proceeding in which the communications that form the basis of the
attorney’s request to withdraw may be disclosed to the court.178 Such a
proceeding would have to be conducted before another judge,179 and
would protect the privileged communications and allow the attorney to
explain to the court why he was required to withdraw under the Illinois
Rules. Of course, if a client seeks or obtains services of an attorney in
furtherance of criminal or fraudulent activity, if an attorney has
information that his client is about to commit an act that would result in
death or serious bodily injury to another person, or if an attorney knows
that his client intends to commit any other crime, then the attorney may,
and in some instances must, disclose such information.180 In addition,
an attorney is permitted to testify to communications after his client
testifies to his version thereof.181
A request to withdraw on the eve of or during trial should not be
treated as a routine matter. The court and the parties in the case have a
substantial interest in bringing the litigation to a just conclusion. While
the court usually gives deference to an attorney’s representation that
differences have caused his relationship with his client to break down,
counsel should not expect the same deference when he seeks to
withdraw on the eve of or during trial. Moreover, he should be prepared
to offer, in a hearing carefully structured to protect the interests of all
parties and counsel, more by way of explanation than simply the
familiar and nondescript “breakdown” in attorney-client relationship.
178. Cf. In re Marriage of Decker, 606 N.E.2d 1094, 1106–07 (Ill. 1992) (adopting the in
camera approach as a sensible solution to the problem of establishing the crime-fraud exception
to attorney-client privilege).
179. See id. at 1107 (“[I]t would be prudent, where possible, to have another trial judge
conduct the in camera inspection once the initial threshold has been met and the court had
determined that an in camera inspection is proper.”).
180. Id. at 1101–02 (discussing the attorney-client privilege and Illinois Rule 1.6).
181. See Turner v. Black, 166 N.E.2d 588, 595 (Ill. 1960) (stating that a person protected by
the attorney-client privilege may waive that privilege through voluntary testimony regarding
issues otherwise guarded by the privilege).
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944 Loyola University Chicago Law Journal [Vol. 40
H. Parallel Proceedings
The limited circumstances in which an Illinois court will enjoin a
petitioner from pursuing her dissolution of marriage action in an out-ofstate
court should be understood by all courts and domestic relations
practitioners. The pendency of a dissolution action in another state does
not necessarily mean that a court in Illinois will enjoin the petitioner in
the foreign action from prosecuting the case there. An injunction to
restrain a party from prosecuting an out-of-state action is appropriate
“only when prosecution of the foreign action would result in fraud or
gross wrong or oppression, or when a clear equity is presented which
requires such restraint to prevent a manifest wrong or injustice.”182
This standard applies regardless of whether the foreign action is filed
before or after the Illinois action.183 The fact that a subsequent action
may be “vexatious and harassing is but a consideration in the overriding
standard of analysis, as opposed to the standard in and of itself.”184 The
Illinois Supreme Court explains “what constitutes a wrong and injustice
requiring the court’s interposition depends upon the particular facts of
the case.”185 On the other hand, an injunction against the prosecution of
another action in Illinois may be granted merely if it appears likely to
cause interference with the progress of the original action.186
There is a “strong policy against enjoining the prosecution of a
foreign action merely because of inconvenience or simultaneous,
duplicative litigation, or where a litigant simply wishes to avail himself
of more favorable law.”187 Moreover, “the expense of defending [an
action in another state] do[es] not constitute a manifest wrong or
injustice adequate to justify an injunction.”188 “[A] party possesses a
general right ‘to press his action in any jurisdiction which he may see fit
and in as many of them as he chooses . . . .”189 The Illinois Supreme
Court has stated that a “court of equity will not interfere with that right
unless such a prosecution results in fraud, gross wrong or
oppression.”190
182. Pfaff v. Chrysler Corp., 610 N.E.2d 51, 58 (Ill. 1992) (citing Royal League v. Kanavagh,
84 N.E. 178 (Ill. 1908)).
183. Id.
184. Id.
185. Id. at 61 (citing Catherwood v. Hokanson, 201 Ill. App. 462, 465 (App. Ct. 1916)).
186. In re Marriage of Gary, 894 N.E.2d 809, 817 (Ill. App. Ct. 2008).
187. Pfaff, 610 N.E.2d at 62.
188. Id. at 69 (citing James v. Grand Trunk W. R.R. Co., 152 N.E.2d 858 (Ill. 1958); Wells v.
Wells, 343 N.E.2d 215 (Ill. App. Ct. 1976)).
189. Id. at 65 (quoting Illinois Life Ins. Co. v. Prentiss, 115 N.E. 554, 556 (Ill. 1917)).
190. Id. (citing Prentiss, 115 N.E. at 556); see also Halmos v. Safecard Services, Inc., 650
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A few reported cases have upheld orders enjoining respondents in
dissolution proceedings in Illinois from prosecuting dissolution petitions
in other states. In those cases, however, both parties were residents of
Illinois and the respondent was seeking to establish, or had established,
colorable residence elsewhere, for the purpose of obtaining a dissolution
of marriage in circumvention of the laws of Illinois. Such conduct,
according to the courts, “would result in fraud or gross wrong upon a
citizen of this State.”191 Thus, courts have restrained residents of
Illinois from fraudulently applying to a foreign jurisdiction where their
residency is merely pretended for the purpose of procuring a
dissolution.192 On the other hand, an injunction should not issue in
local proceedings against a former resident who has established a bona
fide residence in another state.193
Illinois courts apply a heightened standard in enjoining the
maintenance of related lawsuits in other states due to concerns of
comity.194 However, where a litigant seeks to enjoin a later-filed action
in another Illinois court, courts have split over whether the movant must
satisfy the elements of a typical injunction.195 Most recently, the court
held that the maintenance of a later-filed action may be enjoined where
(a) either the parties and legal issues involved are the same, or the issues
involved in the later-filed action are of the type that can and ordinarily
should be disposed of in the course of the original action, and (b) there
does not appear to be any proper purpose for the maintenance of the
later-filed action.196
An injunction against a party will not always lie when he has
commenced a parallel proceeding. The standard that applies depends on
whether the parallel proceeding is pending in Illinois or another state.
N.E.2d 555 (Ill. App. Ct. 1995) (reversing order enjoining the defendant in an Illinois action from
prosecuting the action in Wyoming where there was no evidence of fraud, gross wrong, or
oppression; expense, inconvenience, and prospect of duplicative litigation was not sufficient to
justify injunction).
191. See Kleinschmidt v. Kleinschmidt, 99 N.E.2d 623, 627 (Ill. App. Ct 1951) (quoting Kahn
v. Kahn, 59 N.E.2d 874 (Ill. App. Ct. 1945); Russell v. Russell, 70 N.E.2d 70 (Ill. App. Ct.
1946)).
192. Kleinschmidt, 99 N.E.2d at 628 (citing Usen v. Usen, 13 A.2d 738, 745 (Me. 1940);
McDonald v. McDonald, 52 N.Y.S.2d 385, 385 (1944)).
193. Id.
194. Compare In re Marriage of Gary, 894 N.E.2d 809, 817 (Ill. App. Ct. 2008) (reversing
order enjoining wife from prosecuting potential action in another state where husband failed to
make any showing that it would result in a fraud, gross wrong, or oppression), with In re
Marriage of Elliott, 638 N.E.2d 1172, 1173 (Ill. App. Ct. 1994) (“Courts use the same standards
for preliminarily enjoining legal actions as for other preliminary injunctions.”).
195. Gary, 894 N.E.2d at 812–13.
196. Id.
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In the case of a parallel proceeding in another state, counsel seeking to
enjoin the proceeding is required to establish that it will result in fraud,
gross wrong or oppression. On the other hand, the prosecution of a
parallel proceeding in Illinois should be enjoined if it interferes with the
progress of the original action and there does not appear to be any
proper purpose for its prosecution.
I. Defaults, Default Judgments, and Ex Parte Judgments
The terms “default,” “default judgment,” and “ex parte judgment” are
often used interchangeably by practitioners. However, each is a term of
art with a distinct meaning and legal effect. This Section dispels
common misconceptions by analyzing the significance and distinct
function of each term.
An order of default, sometimes referred to simply as a default, is an
interlocutory order that precludes the defaulting party from making any
additional defenses to liability but in itself determines no rights or
remedies.197 An order of default is not a final judgment or an
interlocutory order appealable as of right because it does not dispose of
the case and determine the rights of the parties.198 The court may, in its
discretion, vacate an order of default at any time, so long as it is done
before the final order or judgment is entered.199 Because an order of
default is not a final judgment or order, it is not, as some practitioners
mistakenly believe, subject to the thirty-day or two-year limitation
period for attack under sections 2-1301 and 2-1401 of the Code,
respectively.200
The difference between a default judgment and ex parte judgment
was explained in In re Marriage of Drewitch.201 There, the petitioner
appealed the trial court’s denial of her motion to vacate what both
parties characterized as a default judgment. This dissolution action
went on for eight years because the petitioner repeatedly terminated her
lawyers and requested extensions of time. After the petitioner
repeatedly failed to appear in court and countless continuances were
granted at her request, the trial court entered judgment on the
197. Fidelity Nat’l Title Ins. Co. of N.Y. v. Westhaven Props. P’ship, 898 N.E.2d 1051, 1067
(Ill. App. Ct. 2007).
198. Id.
199. 735 ILL. COMP. STAT. 5/2-1301(e) (2006).
200. Some practitioners are also under the mistaken impression that an order of default must
be vacated before a party may move to vacate a default judgment. Because section 2-1301(e) of
the Code only authorizes the court to set aside a default “before final order or judgment,” 735 ILL.
COMP. STAT. 5/2-1301(e) (2006), the judgment must be vacated first.
201. 636 N.E.2d 1052, 1057 (Ill. App. Ct. 1994).
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respondent’s counter-petition. The petitioner moved to vacate within
thirty days, but the trial court denied the petitioner’s motion. The court
held that, despite the trial court’s characterization of the judgment as
one by default, it was actually an ex parte judgment. Citing section 2-
1301(d), which provides that “judgment by default may be entered for
want of appearance, or for failure to plead,” the court stated that the
failure of a party to appear for trial generally does not justify the
imposition of a default. When a party files an appearance and an
answer but fails to appear at trial, the other party must prove his case
and cannot simply obtain judgment by default.202 Failure to proceed in
this manner constitutes reversible error.203
For purposes of a dissolution prove-up hearing, the appropriate
disposition in the vast majority of cases where a respondent does not
appear and plead will be a default judgment. In those instances where a
respondent files an appearance and answer to the petition but fails to
appear for trial, the appropriate disposition will be an ex parte judgment.
Nevertheless, a mistake in terminology will not invalidate the
judgment.204
Notably, although a respondent who fails to file an appearance and
response to a dissolution petition or fails to appear at trial waives his
defenses, the court is not required to enter judgment on terms requested
by the petitioner. The court may require proof of the allegations of the
pleadings (hence, the “prove-up” hearing) before entry of a default
judgment.205 Moreover, a court should not enter a facially
unconscionable judgment for dissolution by default or in an ex parte
proceeding.206
202. See 4 RICHARD A. MICHAEL, ILLINOIS PRACTICE – CIVIL PROCEDURE BEFORE TRIAL §
42.4 (1989).
203. Ryan v. Bening, 383 N.E.2d 681, 683–84 (Ill. App. Ct. 1978).
204. See Teitelbaum v. Reliable Welding Co., 435 N.E.2d 852, 858 (Ill. App. Ct. 1982).
205. 735 ILL. COMP. STAT. 5/2-1301(d) (2006).
206. Cf. In re Marriage of Hochleutner, 633 N.E.2d 164, 168 (Ill. App. Ct. 1994) (wife’s
failure to file response to dissolution petition did not divest court of statutory jurisdiction to
award her maintenance where husband placed maintenance at issue by asking court to bar
maintenance in his petition and failed to object to an evidentiary proceeding on the issue); 750
ILL. COMP. STAT. 5/502(b), (c) (2006) (“The terms of an agreement, except those providing for
custody and visitation, are binding on court unless it finds . . . that the agreement is
unconscionable,” in which case court may request parties to submit a revised agreement or, upon
hearing, make orders for disposition of property, maintenance, child support, and other matters.).
See also In re Marriage of Lorenzi, 405 N.E.2d 507, 511–12 (Ill. App. Ct. 1980) (ex-wife who did
not appear at prove-up hearing entitled to hearing on her petition to vacate judgment based on her
claim that she did not agree to judgment, the terms of agreement were unjust, and that the
agreement was effectuated by a fraud on her).
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A clear understanding of the difference between a default, default
judgment, and ex parte judgment is important, especially in domestic
relations cases where respondents often fail to participate. A default
bars the defaulted party from presenting a defense but it does not
otherwise determine the rights of the parties. A default judgment and ex
parte judgment finally determine the rights of the parties, the difference
being whether the party against whom the judgment was entered
participated in the proceeding and what type of hearing was held prior
to entry of judgment. In order to avoid any question about the effect of
the order, counsel is well advised to employ correct nomenclature.
J. “Are You Happy With My Services?”
In what may be unique to dissolution of marriage cases, during the
course of a prove-up hearing on a marital settlement agreement, counsel
will frequently ask his client whether the client is happy with his
professional services. This question, however, is ill-advised as it treads
a line of professional conduct and, in any event, will likely not aid the
attorney in a later malpractice claim brought by a former client.
Rule 1.7(b) of the Illinois Rules states: “A lawyer shall not represent
a client if the representation of that client may be materially limited by
the . . . lawyer’s own interests, unless (1) the lawyer reasonably believes
the representation will not be adversely affected; and (2) the client
consents after disclosure.”207 If the “are you happy with my services”
question is relevant only to the defense of a prospective legal
malpractice lawsuit by the client against the attorney, then the attorney’s
representation of his client at that point may have become materially
limited by his own interest in attempting to foreclose or otherwise
discredit the prospective malpractice action, in violation of Illinois Rule
1.7(b).
Even if Illinois Rule 1.7(b) is not implicated, it is unlikely that an
affirmative response to this question will aid the attorney defending
against a former client’s legal malpractice action. In a recent case, an
attorney’s former client testified at a dissolution prove-up hearing that
he entered into the settlement agreement freely and voluntarily, that no
one forced him into settlement, and that he was pleased with his
attorney’s service. Nevertheless, the former client was not judicially
estopped from testifying at a subsequent legal malpractice trial against
his attorney that he did not receive the benefit of proper legal advice or
that his attorney coerced him into signing the settlement agreement.208
207. ILL. RULES OF PROF’L CONDUCT R. 1.7(b) (1990).
208. Mungo v. Taylor, 355 F.3d 969, 981–82 (7th Cir. 2004). See also Wolfe v. Wolf, 874
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Thus, the peculiar “are you happy with my services?” question often
asked during the prove-up hearing on a marital settlement is both
imprudent and ineffective. Practitioners should consider their
motivations before asking it.
K. Declaratory Judgment
Dissolution of marriage cases raise particular uncertainties regarding
declaratory judgments. Recently, the Illinois Supreme Court resolved
whether a declaration may be sought in a pending dissolution of
marriage action in In re Marriage of Best. This Section discusses the
Best case and its implications. Further, this Section illuminates the
proper procedure for pleading and resolving requests for declaratory
judgment.
In In re Marriage of Best, the Illinois Supreme Court addressed
whether a party may seek a declaration on the validity and construction
of a premarital agreement. The petitioner husband filed a dissolution of
marriage action and, later, a motion for declaratory judgment on the
premarital agreement. The trial court ruled that the agreement was valid
and enforceable, but the appellate court reversed the declaratory
judgment order sua sponte, holding that the requirements of the
declaratory judgment statute had not been met because the order was
entered prior to a final dissolution order and, therefore, failed to satisfy
the “termination-of-controversy” requirement of the statute. The plain
language of the declaratory judgment statute has two prongs: (1) there
must be an actual controversy, and (2) entry of a declaratory judgment
must terminate “some part” of the controversy.209 Finding that the
second statutory requirement was met, the Illinois Supreme Court
reversed and held that, once the court construes the parties’ premarital
agreement, “no question of whether the agreement’s provisions provide
the controlling authority over the parties’ dissolution rights will
remain.”210 The Supreme Court also noted that its holding follows trial
N.E.2d 582, 587 (Ill. App. Ct. 2007) (finding that client’s testimony at dissolution proceeding that
she understood and agreed to terms of the marital settlement agreement was not totally
inconsistent with her legal malpractice complaint against attorney, and thus, she was not
judicially estopped from bringing malpractice action where she alleged that her testimony was
based on misrepresentations made to her by attorney and that she would not have agreed to
settlement had attorney conducted meaningful discovery and informed her she was eligible for
maintenance and interim attorneys’ fees).
209. 735 ILL. COMP. STAT. 5/2-701(a) (2006); In re Marriage of Best, 886 N.E.2d 939, 944
(Ill. 2008).
210. Best, 886 N.E.2d at 944.
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950 Loyola University Chicago Law Journal [Vol. 40
courts’ common practice of entering declaratory judgments in
dissolution cases before entering an order dissolving the marriage.
At its core, Best is more about procedural law than substantive law.
Since the Illinois Supreme Court’s holding in In re Marriage of
Leopando,211 courts have operated on the rule that, in actions under the
Marriage Act, a petition for dissolution presents a single claim, and
issues such as custody, maintenance, and property division are ancillary
to the single claim presented in the dissolution proceeding. In reaching
its conclusion in Best,212 the Illinois Supreme Court distinguished its
holding in Leopando, finding that a request for declaratory judgment
regarding the validity and construction of a premarital agreement raised
a claim separate from the pending dissolution claim. While the
husband’s dissolution claim fell under the Marriage Act, the Uniform
Premarital Agreement Act and declaratory judgment statute controlled
the dispute over the premarital agreement. Thus, the request for a
declaration regarding the premarital agreement was a discrete claim that
could be decided prior to the resolution of the dissolution claim.
As a separate claim, a party seeking a declaration should do so in a
pleading, rather than a motion. The Supreme Court did not specifically
address this question, but because it affirmed the appellate court’s
determination that a declaratory judgment represents a separate claim,
attorneys should follow the appellate court’s observation that a
declaratory judgment claim should be asserted in a pleading.213 Once a
declaratory judgment claim has been pled, cross-motions for summary
judgment are best suited to resolve the dispute if there are no genuine
issues of material fact regarding the premarital agreement.214 On the
other hand, an evidentiary hearing may be required when the validity of
the premarital agreement is contested based on duress, inadequate legal
representation, incomplete or misleading disclosure, or where some
other dispute of material fact exists. The declaratory judgment statute is
a valuable tool, and its maximum utility will be enjoyed by counsel who
has a clear understanding of its nature and scope.
211. 449 N.E.2d 137, 140 (Ill. 1983).
212. 886 N.E.2d at 942–43.
213. In re Marriage of Best, 859 N.E.2d 173, 181 (Ill. App. Ct. 2006) (because a declaratory
judgment is a separate claim, the proper method to add a cause of action for declaratory judgment
in a pending dissolution case was to seek leave to file an amended pleading, not file a motion for
declaratory judgment), aff’d in part and rev’d in part on other grounds, 886 N.E.2d 939 (Ill.
2008). See also 735 ILL. COMP. STAT. 5/2-701(a) (2006) (providing that declaratory judgment
may be sought by means of a pleading or petition).
214. See, e.g., In re Marriage of Barnes, 755 N.E.2d 522, 526–27 (Ill. App. Ct. 2001).
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L. Self-Incrimination
The Fifth Amendment privilege against self-incrimination is
particularly important in the dissolution of marriage context because
parties to dissolution proceedings frequently testify about conduct that
would likely subject them to criminal liability. This Section examines
how the privilege against self-incrimination applies to civil dissolution
cases, and recommends that practitioners and their clients carefully
predetermine when to invoke the privilege.
The Fifth Amendment to the United States Constitution, which
applies to the states through the Due Process Clause of the Fourteenth
Amendment, provides that no person shall be compelled in any criminal
case to be a witness against himself.215 The privilege is generally not
automatically invoked, meaning that if one “desires the protection of the
privilege, he must claim it or he will not be considered to have been
‘compelled’ within the meaning of the Amendment.”216 A party may
claim the Fifth Amendment privilege in a civil proceeding, but the court
must determine the propriety of the invocation of the privilege under the
circumstances of each case.217 “In making that determination the court
should not be skeptical; instead, the court should be aware that ‘in the
deviousness of crime and its detection, incrimination may be
approached and achieved by obscure and unlikely lines of inquiry.’”218
If a party’s answer cannot possibly have a tendency to incriminate him,
then he will not be able to invoke the privilege.219 Beyond testimony,
other evidence may be privileged from disclosure under the Fifth
Amendment because it may tend to incriminate a party.220
Unlike a criminal proceeding, the court in a civil case may draw a
negative inference or conclusion from a party’s failure to testify under
the Fifth Amendment.221 However, a court need not strike all of a
party’s testimony because he at one point invokes the Fifth Amendment
215. U.S. CONST. amend. V; Malloy v. Hogan, 378 U.S. 1, 5–6 (1964).
216. Minnesota v. Murphy, 465 U.S. 420, 427 (1984).
217. People ex rel. v. Mathis v. Brown, 358 N.E.2d 1160, 1163 (Ill. App. Ct. 1976).
218. Id. (quoting People v. Burkert, 131 N.E.2d 495, 501 (Ill. 1955)).
219. Id. See also In re Marriage of Roney, 773 N.E.2d 213, 216 (Ill. App. Ct. 2002)
(testimony of assistant state’s attorney that a criminal prosecution was unlikely was not enough to
preclude husband from invoking privilege against self-incrimination).
220. Roney, 773 N.E.2d at 216 (determining that a husband may not be compelled to turn over
tapes of telephone conversations of his wife that he illegally tape recorded because they
constituted incriminating testimonial communications protected by the Fifth Amendment
privilege).
221. Shea v. Civil Serv. Comm’n, 586 N.E.2d 512, 515 (Ill. App. Ct. 1991).
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privilege against self-incrimination.222 In certain instances, dismissal of
a party’s action may be appropriate where he attempts to use the Fifth
Amendment privilege both as a shield of protection and a sword of
attack.”223 For example, where a wife and husband each filed a petition
for sanctions against the other, and the wife invoked her Fifth
Amendment privilege against self-incrimination in a discovery
deposition and during a hearing on the husband’s sanction petition,
dismissal of the wife’s sanction petition against the husband was
appropriate.224
Parties to dissolution proceedings often testify about conduct that
could subject them to criminal liability. Whether the client is asked
about illegal drug use, failing to report income to the government for tax
purposes, or any other matter that may tend to incriminate him,
competent representation requires counsel to discuss with his client in
advance of a deposition or trial whether the Fifth Amendment
protection should be invoked. There may be valid reason for the client
to answer questions that may incriminate him, such as the improbability
of a criminal prosecution coupled with the negative inference the court
may draw if the client invokes the privilege, but if counsel fails to
discuss the option of invoking the privilege with his client and the
client’s testimony in the dissolution action leads to his criminal
prosecution, counsel may be subject to disciplinary action.
Accordingly, domestic relations practitioners should be fully versed in
the Fifth Amendment privilege in the civil context and should be certain
to discuss relevant self-incrimination issues with their clients.
M. Contempt
Many domestic relations practitioners are not sufficiently versed in
the law of contempt, especially the differences between civil and
criminal contempt. Different constitutional and procedural rights attach
to the respondent in criminal, as opposed to civil, contempt proceedings,
and a failure to follow the law strictly in this regard will undoubtedly
result in the reversal of a contempt finding. This Section discusses and
defines these distinctions. It attempts to clarify procedural issues in
222. See In re Marriage of DeGironemo, 565 N.E.2d 189, 193–96 (Ill. App. Ct. 1990)
(determining that husband’s assertion of Fifth Amendment privilege against self-incrimination,
when asked about genuineness of his wife’s signature on joint tax return submitted to bank along
with loan application, did not have significant bearing on proceeding where husband admitted
that he lied about his income to bank).
223. See In re Marriage of Hartian, 526 N.E.2d 1104, 1113 (Ill. App. Ct. 1988) (quoting
Galante v. Steel City Nat’l Bank 384 N.E.2d 57, 62 (Ill. App. Ct. 1978)).
224. Id.
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contempt proceedings over which there is significant confusion,
including the nature and effect of a rule to show cause, and which party
bears the burden of proof at a contempt hearing once a rule to show
cause has issued.
Before invoking the court’s inherent or statutory contempt authority,
counsel must fully investigate the facts, determine what relief his client
seeks, and carefully follow the law to ensure that any contempt order
will not be overturned on constitutional or procedural grounds.
Whether prosecuting or defending a contempt proceeding, counsel
should be thoroughly familiar with Justice Steigmann’s seminal opinion
on the law of contempt in In re Marriage of Betts,225 in which he
illuminates the differences between civil and criminal, and direct and
indirect, contempt.
According to Betts, the primary distinction between civil and criminal
contempt is the purpose for which the penalty is imposed.226 If the
sanction serves to coerce the contemnor to comply with an order or
affirmatively perform a certain act, the contempt is civil in nature. In
that case, the contemnor must be able to purge himself of contempt by
abiding by the court order. If the penalty is incarceration, the
contemnor must hold the proverbial “keys to his jail cell,” enabling him
to end his incarceration by compliance.227 Civil contempt penalties are
prospective in nature in that they seek to force compliance in the
future.228 Additionally, the type of conduct sought to be coerced by
civil contempt penalties often benefits the opposing party. If the
purpose of the sanction is to punish past misconduct, on the other hand,
the contempt is criminal.229 The conduct punished by criminal
contempt includes disrespectful, deceitful, and disobedient acts that
disturb judicial proceedings. The most common examples of punishable
conduct are a disruptive outburst by a litigant or spectator or statements
made in open court suggesting that the judge is guilty of criminal
conduct.230 Criminal contempt sanctions are retrospective in that they
seek to punish conduct committed by the contemnor in the past.231
Direct contempt consists of contemptuous conduct in the presence of
the judge. The most common example of direct contempt is an outburst
225. 558 N.E.2d 404 (Ill. App. Ct. 1990).
226. Id. at 415.
227. In re Marriage of Logston, 469 N.E.2d 167, 177 (Ill. 1984).
228. Betts, 558 N.E.2d at 415.
229. Id. at 416 (stating that the purposes of criminal contempt are “retribution, deterrence, and
vindication of the norms of socially acceptable conduct”).
230. Id.
231. Id. at 417.
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during court proceedings. Direct contempt can also be civil in nature,
as is the case where a party willfully refuses to perform acts in open
court in compliance with previously entered court orders.232 Indirect
contempt includes contemptuous conduct occurring outside the presence
of the court such that the judge does not have personal knowledge of the
conduct and cannot take judicial notice of the facts giving rise to the
contempt proceedings.233 The most common example of indirect
contempt in a dissolution case is failure to comply with a child support
or maintenance order.234
To sustain a finding of civil contempt, the petitioner must establish
that the respondent failed to comply with a court order, such as an order
for child support or maintenance, at which point the burden shifts to the
respondent to show that his non-compliance was not willful.235 To
sustain a finding of criminal contempt for the violation of a court order,
the petitioner must prove both the existence of a court order and a
willful violation of that order.236 Unlike a civil contempt petition, a
criminal contempt proceeding is separate and independent of the
original action.237
Oftentimes, an examination of the petition for rule to show cause
reveals that any sanction the court may order will not have a coercive
effect but rather only a punitive effect, making it, in essence, criminal
contempt.238 If so, the respondent enjoys certain constitutional
protections, including, but not limited to, the presumption of innocence,
the right against self-incrimination, the right to be proven guilty beyond
a reasonable doubt, and the right to appointed counsel if he is indigent.
Because the respondent enjoys the right not to testify and presumption
of innocence, an order that the respondent show cause is an
impermissible shifting of the burden of proof in a criminal contempt
proceeding.239 Thus, an indirect criminal contempt proceeding should
be styled a “petition for adjudication of criminal contempt.”240
232. Id. at 418.
233. Id.
234. Id. at 419.
235. In re Marriage of Logston, 469 N.E.2d 167, 175 (Ill. 1984).
236. People v. Totten, 514 N.E.2d 959, 965 (Ill. 1987).
237. Bray v. United States, 423 U.S. 75, 76 (1975); People v. Budzynski, 775 N.E.2d 275, 280
(Ill. App. Ct. 2002).
238. Cf. Helm v. Thomas, 839 N.E.2d 1142, 1145 (Ill. App. Ct. 2005) (reversing contempt to
punish respondent for an act which could not be undone where court did not accord respondent
necessary criminal procedural rights).
239. See People v. Ramsell, 640 N.E.2d 975, 978 (Ill. App. Ct. 1994) (requiring respondent in
indirect criminal contempt proceeding to show cause constitutes reversible error).
240. In re Marriage of Betts, 558 N.E.2d 404, 425 (Ill. App. Ct. 1990).
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Moreover, if a respondent testifies at a hearing where only civil
contempt has been alleged, she may not then be found in criminal
contempt, even if her testimony would clearly support a criminal
contempt finding.241 However, if appropriate procedural steps are
followed, a contemnor may be found in both criminal and civil
contempt for the same act.242 On the other hand, where the respondent
is not afforded criminal procedural rights and is not given the
opportunity to purge himself of contempt, neither civil nor criminal
contempt will stand.243
Another issue that arises with some frequency in contempt
proceedings is whether the order that forms the basis for the contempt is
sufficiently certain and specific in its direction. To support a finding of
contempt, the order must be “so specific and clear as to be susceptible
to only one interpretation.”244 It must not only be capable of reasonable
interpretation, but that interpretation must be to the exclusion of other
reasonable interpretations; in other words, it must be unambiguous.245
Thus, where the order provided that both parents would “share equally
the costs of special activities in which the minor child is a participant
and to which both parents have agreed,” listing as examples summer
camp, music lessons, and religious school, and further providing that
consent would not be unreasonably withheld by either parent, the order
was not sufficiently specific to support a contempt finding against the
ex-husband for failing to pay one half of certain expenses relating to the
child’s activities because the order did not specify what activities the
ex-husband was supposed to contribute to or when withholding
approval would be unreasonable.246 A contempt finding will not lie
where the visitation order is not specific as to time, date, and place.247
Nor will contempt lie where a respondent has been ordered to pay
money to the petitioner, but the order does not indicate the date by
which respondent is to pay petitioner.
Significant confusion exists regarding the nature and effect of a rule
to show cause. Some practitioners take the position that the court must
conduct a hearing before issuing a rule to show cause against a
241. Cf. In re Marriage of Marcisz, 357 N.E.2d 477, 479 (Ill. 1976) (finding contempt
criminal where husband violated divorce decree).
242. Betts, 558 N.E.2d at 425.
243. In re Marriage of Gibbs, 645 N.E.2d 507, 515 (Ill. App. Ct. 1995).
244. O’Leary v. Allphin, 356 N.E.2d 551, 558 (Ill. 1976).
245. In re Marriage of Baumgartner, 890 N.E.2d 1256, 1277 (Ill. App. Ct. 2008) (quoting
O’Grady v. Cook County Sheriff’s Merit Bd., 561 N.E.2d 1226, 1229 (Ill. App. Ct. 1990)).
246. In re Marriage of Steinberg, 706 N.E.2d 895, 898, 904 (Ill. App. Ct. 1998).
247. Hess v. Hess, 409 N.E.2d 497, 501 (Ill. App. Ct. 1980).
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respondent to explain why he should not be held in civil contempt.
However, when a court issues a rule to show cause, it does not make a
finding that a court order has been violated.248 Rather, the issuance of
the rule is part of the process of notifying the alleged contemnor of the
charges against him, including the time and place of the hearing.249 For
that reason, one commentator argues that the court need not conduct a
hearing on whether a rule should issue and, further, that no practical
purpose would be served by such a preliminary hearing because it is
relatively easy to establish a prima facie case of contempt.250 In the
vast majority of cases, the court will enter a rule without a hearing, but
where a question exists about whether the petition establishes a prima
facie case of contempt, the court “may instead set the petition itself for
hearing.”251 If the court issues a rule without conducting a preliminary
hearing, then a motion for directed finding following the petitioner’s
case in chief, where the court considers the credibility of the witnesses
and the weight and quality of the evidence,252 is appropriate to weed out
unmeritorious contempt claims.
There is also confusion over which party bears the burden of proof at
a contempt hearing when a rule to show cause has issued. Common
practice is that once the rule issues, the burden of proof shifts to the
respondent to show cause why he should not be held in contempt,
relieving the petitioner of the burden of making a prima facie case at the
contempt hearing. This argument was rejected in In re Marriage of
LaTour.253 Thus, regardless of whether a rule to show cause has issued,
the petitioner in a civil contempt proceeding bears the initial burden of
proof to show that the respondent has violated a court order. Once this
showing has been made, the burden shifts to the alleged civil contemnor
to show the violation was not willful.254
A dissolution of marriage case may bring out the worst in the parties,
even conduct rising to the level of contempt. One of the most effective
tools in a court’s arsenal is its contempt power. Courts, quite
248. In re Marriage of LaTour, 608 N.E.2d 1339, 1345–46 (Ill. App. Ct. 1993).
249. Id.
250. H. JOSEPH GITLIN, GITLIN ON DIVORCE: A GUIDE TO MATRIMONIAL LAW § 18-4(a),
(Matthew Bender & Co., Inc. 3d ed. 2005) (citing LaTour, 608 N.E.2d at 1339).
251. ILL. SUP. CT. R. 296.
252. See 735 ILL. COMP. STAT. 5/2-1110 (2006).
253. 608 N.E.2d at 1346 (rule to show cause is not a finding of a violation of a court order but
rather the method by which the court brings the parties before it for hearing and mere allegation
in petition for rule to show cause is insufficient to establish, by a preponderance of the evidence,
that a court order has been violated).
254. In re Marriage of Cummings, 584 N.E.2d 900, 904 (Ill. App. Ct. 1991).
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appropriately, exercise this power cautiously and prudently. Often,
what may be designated civil contempt is, upon close examination, a
grievance about the respondent’s past conduct that cannot be undone.
In that case, the matter is a likely criminal contempt and the respondent
enjoys the same constitutional protections as other defendants in
criminal proceedings. A failure to strictly comply with the law in cases
of criminal contempt will almost always result in a reversal on appeal.
When appropriately utilized, civil contempt is highly effective in
forcing the recalcitrant litigant to comply with a court order. Even then,
however, a failure to afford the civil contemnor his minimal procedural
rights will be grounds for reversal. In either criminal or civil contempt,
the court order forming the basis of the contempt must be unambiguous.
Although a court has the authority to conduct a hearing on whether a
rule to show cause should issue against the respondent, the court will
usually issue the rule on the basis of the verified petition. However, the
rule to show cause does not operate to shift the initial burden to the
respondent at the contempt hearing. A strong understanding of the
basic principles of contempt and how contempt is prosecuted and
defended will empower the domestic relations practitioner to
competently and effectively represent his client.
IV. CONCLUSION
Dissolution of marriage litigation is unique in many respects. Unlike
a tort or breach of contract action, which focuses on events and conduct
of parties prior to the commencement of the action, the inquiry in a
dissolution of marriage action is not so time-limited. Because parties to
a dissolution action must continue to live their lives, the facts remain
fluid and what parties do after the dissolution action is commenced is
often just as important as what they did before the action was
commenced. This is especially the case when there are children of the
marriage. Further, unlike a tort or breach of contract action, it is not
uncommon for the court to conduct an evidentiary hearing on temporary
issues in a dissolution action before trial. These and other differences,
however, as substantial as they undoubtedly are, generally have not
necessitated special procedural rules. Rather, the legislature and
supreme court have appropriately applied the CPL to dissolution of
marriage cases. Hence, many of the novel procedural schemes
employed in domestic relations cases are without legal basis and should
be strongly discouraged. Better civil practice in domestic relations
cases invokes procedure followed in other civil cases. Practitioners and
judges should insist on stricter application of the CPL to domestic
relations proceedings.
TAILOR.DOC 4/23/2009 11:13:43 AM
958 Loyola University Chicago Law Journal [Vol. 40
Three years before the United States Supreme Court employed an
arguably rigid concept of procedural law to affirm the contempt
convictions of civil rights protestors led by Dr. King in Walker v. City of
Birmingham, the Illinois Appellate Court looked to a treatise on English
legal history to explore the relationship between substantive and
procedural law:
“One of the most difficult and one of the most permanent problems
which a legal system must face is a combination of a due regard for
the claims of substantial justice with a system of procedure rigid
enough to be workable. It is easy to favour one quality at the expense
of the other, with the result that either all system is lost, or there is so
elaborate and technical a system that the decision of cases turns almost
entirely upon the working of its rules and only occasionally and
incidentally upon the merits of the cases themselves.”255
The relationship between substantive and procedural law has never
been easy, especially in dissolution of marriage cases. Unlike the
values reflected in Walker, in Illinois, procedure often bends in light of
substantive concerns. Nevertheless, certain procedural norms and
conventions employed in dissolution cases are so at odds with
procedural law that the only way to explain their subsistence is to
disregard procedural law, a proposition that even Dr. King’s defenders
would have undoubtedly rejected. A dissolution case has a number of
distinguishing characteristics, but they are well within grasp of Illinois
procedural statutes and rules of court. The suggestions in this article
attempt to draw an appropriate and healthy balance between substantive
and procedural law and, if adopted by domestic relations practitioners
and judges, will significantly assist the court in determining the parties’
substantive rights in a just, orderly, and expeditious manner.
255. Kita v. Young Men’s Christian Assoc. of Metro. Chicago, 198 N.E.2d 174, 176 (Ill. App.
Ct. 1964) (quoting 2 WILLIAM S. HOLDSWORTH, HISTORY OF ENGLISH LAW 251 (3d ed. 1945)).