Posted on June 2, 2019

How To Challenge A Judge’s Decision In An Illinois Divorce?

The whole point of going to court in a divorce is to get a ruling from the court.  If you and your spouse cannot agree on an issue in your divorce, either of you may ask the court to make the decision based on the facts of your divorce case as applied to Illinois law.

The attorneys will present the facts, communicate how those facts are applied to the law and then the judge will rule upon that matter at either a hearing or a trial. “[I]t [i]s the duty of the trial judge to direct the course of the trial and administer justice fairly and impartially.” People v. Haas, 100 Ill. App. 3d 1143, 1147 (Ill. App. Ct. 1981)

The resulting decision may not seem “fair” or “impartial.” In such a case, how do you challenge a judge’s decision in an Illinois? divorce?

File an appeal

If you believe the court misapplied the law, you can file an appeal with the superior court in your jurisdiction.

Appeals are NOT about the facts of the case.  Issues of fact are always left to the trial courts.

Appeals are exclusively about clarifying what the law is and how it should have been applied in the case at hand.

Appeals in Illinois must either be filed within 30 days of the final judgment of divorce. Illinois Supreme Court Rule 303.

In divorce cases, if the issue involves children you don’t have to wait for the divorce to be finalized to appeal a court’s temporary ruling.  Illinois Supreme Court Rule 306 allows for appeals of “orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors or the relocation (formerly known as removal) of unemancipated minors”

Appeals are tough. Appeals courts do not want to relitigate your divorce case…even if you’re right. “It is not the function of this court to reweigh the evidence or assess the credibility of testimony and set aside the trial court’s determination merely because a different conclusion could have been drawn from the evidence.” In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513 (1992)

Furthermore, an appeals court “presumes that a trial judge knows and follows the law unless the record affirmatively indicates otherwise.” In re Jonathon C.B., 2011 IL 107750 

An appeal won’t necessarily reverse a judge’s decision. An appellate court may simply send the case back to the original court and say “try again.” This is called a remand.

“After a remand, the trial court is required to exercise its discretion within the bounds of the remand. Whether it has done so is a question of law.” Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351 (2002)

My contracts with my clients specify that I am only retained for the underlying trial court leveldomestic relations action.  I am open to taking on appellate clients but I must advise that divorces are expensive but appeals are even more costly.

Motion To Reconsider

Within 30 days of any final court ruling, anyone can file a motion to reconsider that ruling under 735 ILCS 5/2-1203

“Sec. 2-1203. Motions after judgment in non-jury cases.
(a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”

“The purpose of a motion to reconsider is to bring to a court’s attention: (1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez 2019 IL App (1st) 181170

Motions to reconsider are discouraged by the courts if you don’t meet the three requirements as enumerated above.

A reconsideration motion is not the place to raise a new legal theory or factual argument. River Plaza, 389 Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572. Trial courts should not allow litigants to stand mute, lose a motion and then frantically gather new material to show that the court erred in its ruling. River Plaza, 389 Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572; Landeros v. Equity Property & Devlopment, 321 Ill. App. 3d 57, 65 (2001). As a result, legal theories and factual arguments not previously made are subject to waiver. River Plaza, 389 Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572-73.

“A motion to reconsider is not the place for the inclusion of new arguments that could have been raised earlier. Actions like that simply waste everyone’s time and money” Liceaga v. Baez 2019 IL App (1st) 181170

A Cook County judge once told me motions to reconsider are “whining.”

Despite all these warnings as to how a motion to reconsider is discouraged, if you’ll look at the requirements for a motion to reconsider one is “errors in the court’s previous application of existing law.”  This is really just telling the court “you’re wrong” and putting the court on warning that you’re considering an appeal.  This is probably part of why judges don’t like motions to reconsider.

New evidence is not “whining”, however and will probably get a lot more traction in a motion to reconsider. The new evidence better be good, though. Newly discovered evidence must be material and “so conclusive that it would probably change the trial result.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 409 (2005)

New evidence cannot be so new that the evidence did not exist a the time of trial. “Newly
discovered evidence [means] evidence [that] was in existence at the time of trial or pertains to
facts in existence at the time of trial.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 410 (2005) (citing United States v. McGaughey, 977 F.2d 1067, 1075 (7th Cir. 1992))

If you don’t have new evidence, you likely won’t be able to present any evidence or do any discovery. “This court has long held that [post-trial] motions may be decided on the basis of affidavits alone.” In re Marriage of Varco, 158 Ill. App. 3d 578, 580 (1987)

When you ask that something be reconsidered under 2-1203, you stay the ruling (keep the ruling from going into effect).  This can be really strategic if the ruling is something like “sell the house.”  This is a great reason to file a motion to reconsider even if you know you’re going to lose.  This allows you to defy a court order without possibly being held in contempt of court for defying that order.  If the judge sees through this strategy, you may have a problem appearing credible in front of the judge on other matters, though.

You cannot stay child support or maintenance via a motion to reconsider. “An order requiring maintenance or support of a spouse or a minor child or children entered under this Act or any other law of this State shall not be suspended or the enforcement thereof stayed pending the filing and resolution of post-judgment motions or an appeal.” 750 ILCS 5/413(a)

Additionally,  you cannot have stayed during a motion to reconsider is the actual Judgment For Dissolution Of Marriage.  So, you cannot file a motion to reconsider just to spite your husband and wife and thus prevent them from remarrying.

“Except as provided in subsection (a) of Section 413 of the Illinois Marriage and Dissolution of Marriage Act, a motion filed in apt time stays enforcement of the judgment except that a judgment granting injunctive or declaratory relief shall be stayed only by a court order that follows a separate application that sets forth just cause for staying the enforcement.” 735 ILCS 5/2-1203(b)

Challenging An Illinois Divorce Judge’s Decision Before A Divorce Is Final

Challenging an Illinois divorce judge’s decision before a divorce has been finalized cannot be done via a motion to reconsider (but everyone tries to).

A temporary order is not a “judgment” and therefore can only be modified not vacated.

Modification of a temporary order is an easier task than the a reconsideration.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing” 750 ILCS 5/501(d)

File A Motion To Modify In The Future

As the old adage says, “There’s more than one way to skin a cat.”  If you lose on one point, just re-file a new petition but make it about something sufficiently (or seemingly) different.

Before the divorce judgment or the allocation of parenting time and parenting responsibilities is finally entered, everything is a temporary order and is, therefor, modifiable.

If a final order has been entered you can file a motion to reconsider within 30 days. After 30 days, you will have to appeal.  In divorce and parentage cases there is often no real “end” so long as the parties share minor children.  You can keep going back to court until the children turn 18. You can even go back to court regarding college expenses until they’re 25.

Cases with maintenance and alimony orders are also ongoing and thus modifiable until maintenance or alimony is determined ended.

So, if you are unsatisfied with a court’s order and the issue is still open simply wait a reasonable amount of time, identify a “substantial change of circumstances” and file a motion as different as possible which proposes to achieve similar results.

Be careful, though. If your next motion is largely duplicative you could be subject to sanctions from the court.

Taking Your Divorce Case To Federal Court

Illinois divorces are conducted in Illinois state courts pursuant to Illinois state law. Federal courts may sound superior to Illinois state courts but Federal court decisions regarding Illinois law are not binding on Illinois state courts. “Decisions of the Federal courts in construing statutes of this State are not binding on this court.” Kelsay v. Motorola, Inc., 384 NE 2d 353 – Ill: Supreme Court 1978

If you brought your divorce to a federal court, the federal court’s decisions would not be binding on the original state court divorce.

Even if you could get your divorce case in front of a federal judge on the basis of some constitutional issue, the federal court is likely to abstain from having any jurisdiction over the matter if the divorce is ongoing…and divorce matters are almost always ongoing.

“[F]ederal courts are required…to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Tobey v. Chibucos, 890 F.3d 634, 651 (7th Cir. 2018)

In all honestly, federal courts think they’re too good for divorce matters.

“Family relations are a traditional area of state concern.” Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979)

To learn more about appeals, motions to reconsider and other strategies to undo a judge’s ruling contact family law attorney Russell Knight for a free consultation.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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