In an Illinois divorce appellate court in Illinois reviews final orders, interlocutory (temporary) orders and custody/parenting time orders.
“Every final judgment of a circuit court in a civil case is appealable as of right.” Ill. Sup. Ct. R. 301
“An appeal may be taken to the Appellate Court from an interlocutory order of court:(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;” Ill. Sup. Ct. R. 307(a)(1)
“The following judgments and orders are appealable without the finding required for appeals…
A custody or allocation of parental responsibilities judgment or modification of such judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or Illinois Parentage Act of 2015 (750 ILCS 46/101 et seq.).” Ill. Sup. Ct. R. 304(b)(6)
The Appellate Court looks at that order, looks at the court record, reviews the briefs and oral arguments of the parties and then makes a determination about the propriety of the order under the circumstances.
This process of an Appellate Court reviewing a trial court’s decision is called “the standard of review.”
What Is The Standard Of Review In An Illinois Divorce Appeal?
The standard of review is “[t]he criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.” Black’s Law Dictionary (10th ed. 2014)
The standard or review is determination of which specific logical test the appellate court will apply to the trial court’s decision in order to determine if the trial court’s decision was in error.
To know whether your Illinois divorce case is successfully appealable you must understand the standards of review that can be applied to your disputed Illinois divorce court order.
In fact, you must describe to the appeals court in your initial brief which standard of review you are basing your appeal upon for each issue you are appealing.
“The appellant’s brief shall contain the following…A statement of the issue or issues presented for review, without detail or citation of authorities.
The appellant must include a concise statement of the applicable standard of review for each issue, with citation to authority, either in the discussion of the issue in the argument or under a separate heading placed before the discussion in the argument.” Ill. Sup. Ct. R. 341(h)
The standard of review will be determined by the nature of the case at the trial level.
“[T]he proper standard of review is to be determined by the nature of the question presented to the trial court” LAS, INC. v. Mini-Tankers, USA, Inc., 796 NE 2d 633 – Ill: Appellate Court, 5th Dist. 2003
The issues being appealed must have been brought before the court at the trial level first.
“[Q]uestions not raised in the trial court are deemed waived and may not be raised for the first time on appeal.” Western Casualty & Surety Co. v. Brochu, 475 NE 2d 872 – Ill: Supreme Court 1985
The issues raised at appeal will either be legal or factual. The standard of review for legal vs. factual issues are markedly different in an Illinois appeals case.
Standard Of Review For Legal Questions In An Illinois Divorce Appeal
Questions that purely weigh whether the trial court correctly interpreted the law will be handled “de novo”.
De novo is Latin for “Anew; afresh; a second time.” Black’s Law Dictionary (10th ed. 2014)
“We conduct a de novo review of all questions of law.” Long v. Elborno, 922 NE 2d 555 – Ill: Appellate Court, 1st Dist., 4th Div. 2010
“[T]he scope of our review on questions of law is independent, not deferential [to the trial court]”In re Marriage of Skinner, 501 NE 2d 311 – Ill: Appellate Court, 1st Dist. 1986
A de novo review gives zero weight to the trial court’s reasoning or conclusion. An appellate court looks at questions of law with fresh eyes…but only if the facts aren’t dispute.
“If the facts are uncontroverted and the issue is the trial court’s application of the law to the facts, a court of review may determine the correctness of the ruling independently of the trial court’s judgment.” Norskog v. Pfiel, 197 Ill.2d 60, 70-71, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001)
“[W]here the facts and witness credibility are not in dispute, the ultimate question posed by the legal challenge to the trial court’s ruling…is reviewed de novo.” People v. Roberts, 872 NE 2d 382 – Ill: Appellate Court, 4th Dist. 2007
“A de novo review entails performing the same analysis a trial court would perform. That is, we accept all well-pleaded facts in the complaint as true while disregarding legal or factual conclusions unsupported by allegations of fact.” Khan v. BDO Seidman, LLP, 948 NE 2d 132 – Ill: Appellate Court, 4th Dist. 2011
Pure questions of law in an Illinois divorce case can be rulings on motions for summary judgment, motions to strike and/or motions to dismiss.
Particular to post-judgment divorce cases are decisions regarding the interpretation of Marital Settlement Agreements and Allocations of Parenting Time And Parental Responsibilities.
“Terms of the agreement set forth in the judgment are enforceable as contract terms.” 750 ILCS 5/502(e)
“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
“It is also well settled that the terms of a settlement agreement are subject to the ordinary rules for the construction of contracts” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825-26 (Ill. App. Ct. 1990)
Interpretation of a contract is a function of contract law, not independent facts beyond the four corners of the contract. Therefore, as to contract interpretation, the standar of appellate review will be a pure question of law and, thus, will be reviewed de novo.
“The legal effect of a [contract] raises a question of law” In re Estate of Duncan, 525 NE 2d 1212 – Ill: Appellate Court, 5th Dist. 1988
“We review de novo the interpretation of a contract.” Timan v. Ourada, 972 NE 2d 744 – Ill: Appellate Court, 2nd Dist. 2012
On a question of law, it doesn’t matter how wrong the trial court was. The appellate court can review the matter de novo with zero regard to whatever was said previously.
“Generally, the standard of review in a bench trial is whether the order or judgment is against the manifest weight of the evidence” Reliable Fire Equipment Co. v. Arredondo, 965 NE 2d 393 – Ill: Supreme Court 2011
Standard Of Review For Factual Questions In An Illinois Divorce Appeal
Facts that were presented in trial court are weighed by the trial judge and used as the basis for the order which is now in dispute.
It is not the facts that can be disputed but the interpretation of the facts. There are two standards of review for the interpretation of facts upon appeal: “Against The Manifest Weight Of The Evidence And “Abuse Of Discretion.”
Against The Manifest Weight Of The Evidence In An Illinois Appeal
If the facts the judge used to arrive at their decision speak to the opposite conclusion, then an Illinois appeals court may find that the decision is “against the manifest weight of the evidence”
“Where a trial court makes factual findings, this court reviews those factual findings under the manifest-weight-of-the-evidence standard.” In re Guardianship of KRJ, 942 NE 2d 598 – Ill: Appellate Court, 4th Dist. 2010
“An order is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary and not based on the evidence.” In re Vanessa K., 2011 IL App (3d) 100545 – Ill: Appellate Court, 3rd Dist. 2011
The conclusions drawn from the facts are what an appeals court can consider…not the facts themselves.
“Findings of fact and credibility determinations made by the circuit court are accorded great deference and will be reversed only if they are against the manifest weight of the evidence. This deferential standard of review is grounded in the reality that the circuit court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their testimony.” People v. Richardson, 917 NE 2d 501 – Ill: Supreme Court 2009
An Illinois appeals court “may not substitute [their] judgment for that of the trial court regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to be drawn.” Tully v. McLean, 948 NE 2d 714 – Ill: Appellate Court, 1st Dist., 2nd Div. 2011
A true dispute of the facts cannot be brought to the appeals court because the facts are only really considered at the trial court level where evidence can be admitted and testimony can be taken.
An Illinois Appeals “may consider improperly excluded evidence in determining the manifest weight of the evidence.” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992
This consideration of excluded evidence can only be done if a proper offer of proof of the excluded evidence was made at the trial court level.
Abuse Of Discretion In An Illinois Divorce Appeal
When an Illinois Appeals court is not reviewing a case de novo or letting the facts speak for themselves with the manifest weight of the evidence standard, an Illinois Appeals Court must use the only other standard available “abuse of discretion”.
“[A] trial court abuses its discretion if it fails to apply the proper criteria when it weighs the facts” Paul v. Gerald Adelman & Associates, Ltd., 858 NE 2d 1 – Ill: Supreme Court 2006
“A trial court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable, no reasonable person would take the view adopted by the trial court, or its ruling rests on an error of law.” In re Marriage of Benink, 2018 IL App (2d)
170175, ¶ 32.
The standard for reversing a trial court decision based on abuse of discretion is high.
“’Abuse of discretion’ means clearly against logic; the question is not whether the appellate court agrees with the circuit court, but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether, in view of all the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted” State Farm Fire and Cas. Co. v. Leverton, 732 NE 2d 1094 – Ill: Appellate Court, 4th Dist. 2000
“We will not reverse a trial court’s decision on this issue absent an abuse of discretion and an abuse of discretion only occurs when the trial court’s decision is arbitrary, fanciful, or unreasonable or when no reasonable person would take the same view” Christmas v. Dr. Donald W. Hugar, Ltd., 949 NE 2d 675 – Ill: Appellate Court, 1st Dist., 2nd Div. 2011
The standard for reversing a trial court decision based on abuse of discretion is so high that no factual findings by the trial court can be reversed unless there is contrary evidence on the record.
When there’s no record…there will be no finding of an abuse of discretion. When “there is no transcript of the hearing…, there is no basis for holding that the trial court abused discretion.” Foutch v. O’BRYANT, 459 NE 2d 958 – Ill: Supreme Court 1984
“Where the question on appeal involves the resolution of factual issues, the trial court’s determinations will not be disturbed unless they are unsupported by evidence in the record” Schwartz v. Cortelloni, 685 NE 2d 871 – Ill: Supreme Court 1997
To distinguish the manifest weight of the evidence standard from the abuse of discretion standard, consider that the manifest weight of the evidence standard is challenging the factual findings of the court against the evidence proffered. The abuse of discretion standard is the logic applied to the findings that resulted in the decision at issue.
In conclusion, an Illinois appeals court can say: 1) “the law was misapplied.”, 2) “the facts suggest the opposite conclusion” or 3) “the trial court used bad logic in analyzing the facts”
# 3, the abuse of discretion standard, has a lot of overlap with # 1 and # 2, de novo question of law and manifest weight of the evidence standard. The differences are not discrete at all. Misapplying the law (#1) is an abuse of discretion (# 3) as a court “abuses its discretion when its decision is based upon a misapplication of law.” In re Marriage of Burns, 2019 IL App (2d) 180715, ¶ 24
The skilled appellate lawyer will argue all three standards of review with a preference for an unrestrained de novo review or a complete reversal of the findings as being against the manifest weight of the evidence versus a remand back to trial court who ruled against you in the first place with little more than the instructions “use better logic.”
All final decisions have the right of appeal but the scope of that appeal needs to be outlined with precision if you are to get results. Contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
