Preserving the record in an Illinois divorce trial

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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How To Preserve Your Divorce Case For Appeal In Illinois

Preserving the record in an Illinois divorce trial

An Illinois divorce hearing or trial is not the final word in an Illinois divorce. An Illinois divorce judge’s ruling can be appealed…but only if the record is properly preserved. Furthermore, preserving the record throughout your trial may provide a special advantage as it signals a hyper-competence that is often too rare in Illinois divorce courts.

An appeal is a “complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.” Black’s Law Dictionary (10th ed. 2014)

In Illinois, that “complaint to a superior court” is done by appeal.

“Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a continuation of the proceeding.” Ill. Sup. Ct. R. 301

Every case that goes before an Illinois divorce judge is ripe for appeal. After all, if you were sure to win, you would not even have to go before a judge…the case would settle.

Appealing a divorce case comes in two steps: 1) ensuring the case is properly preserved for appeal and 2) actually appealing the divorce case.

Therefore, preserving your case for appeal is crucial…or you won’t be able appeal a unfavorable decision by a divorce judge.

Issues must be raised in an Illinois divorce trial…or they will be deemed waived at the appeals court level.

“[T]he appellant must provide the reviewing court with the content of [issue presented for appeal] establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court…This rule does prevent a litigant from raising issues on appeal which he did not present to the trial court.” Brown v. Decatur Memorial Hospital, 415 NE 2d 337 – Ill: Supreme Court 1980 (citations omitted)

Objections And Preserving A Divorce Case For Appeal

Only matters that have been objected to during a divorce hearing or trial may be brought before an appeals court in Illinois.

An objection must be made upon presentment of the legally questionable evidence or argument.

“In civil and criminal trials where the court has not made a previous ruling on the record concerning the admission of evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of error for appeal.” Ill. R. Evid. 103(b)(1)

The objection must be raised again at the final trial to preserve the objection for appeal.

“In civil trials, even if the court rules before or at trial on the record concerning the admission of evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of error for appeal.” Ill. R. Evid. 103(b)(3)

Failure to object is failure to preserve the issue for appeal.

“To preserve a trial error for review on appeal, a party must make a timely objection… Where a party fails to make an appropriate objection in the court below, he has failed to preserve the question for review and the issue is waived.” Dienstag v. Margolies, 919 NE 2d 17 – Ill: Appellate Court, 1st Dist. 2009

The objection may be brought up again to an appeals court but only for the grounds the objection was originally brought: hearsay, privilege, relevance, etc.

“When an objection is made, specific grounds must be stated and other grounds not stated are waived on appeal… An objection to evidence on the grounds of prejudice or relevance cannot be raised for the first time on appeal” Akers v. Atchison, Topeka & Santa Fe Ry., 543 NE 2d 939 – Ill: Appellate Court, 1st Dist. 1989

Failure to properly object or offer proof upon objection shall result in a waiver or forfeiture of that issue if appealed.

When appropriate evidence is denied by a trial court judge, the evidence must be still introduced (but not considered) for the purpose of a possible appeal. The process of offering evidence strictly for appealability purposes is called an “offer of proof.”

“Generally, when a trial court refuses evidence, no appealable issues remain unless a formal offer of proof is made.  The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced. An adequate offer of proof is the key to preserving a trial court’s error in excluding evidence.”K4 Enterprises, Inc. v. Grater, Inc., 914 NE 2d 617 – Ill: Appellate Court, 1st Dist., 3rd Div. 2009 (citations omitted)

Even when an objection is made but the inappropriate evidence was let in, you still must make a motion to strike at the end of the hearing or trial to preserve the appealability of the issue.

If “testimony was admitted subject to objection, but the objection was not renewed nor was any motion made to strike it. The testimony must now be considered as properly in the record.” Hayes v. ILL. IND. HOME FOR BLIND, 147 NE 2d 287 – Ill: Supreme Court 1958

An Illinois divorce court must make a ruling on the objection for the record for an appeals court to consider and possibly reverse that ruling.

“When a party moves to strike [evidence], it is that party’s duty to bring his motion to the attention of the trial court and to get a ruling on the motion. Failure to obtain such a ruling will operate as a waiver of the objections.” Woolums v. Huss, 752 NE 2d 1219 – Ill: Appellate Court, 4th Dist. 2001

An appeals court will look at the entirety of the record when reconsidering a trial judge’s order.

“[O]rders appealed from should be interpreted in the context of the record of proceedings and the situation which existed at the time of their rendition. Moreover, this court may affirm for any reason which appears of record, even if the trial court did not rely on it.” Purcell & Wardrope, Chartered v. Hertz Corp., 664 NE 2d 166 – Ill: Appellate Court, 1st Dist., 1st Div. 1996 (citations omitted)

Why A Court Reporter Is Essential To Preserving The Record In An Illinois Divorce Case

Finally, to preserve an appealable issue…the objection, argument, offer of proof, etc. must be written down by someone. If the record is not preserved by courthouse microphones, you must hire a court reporter to transcribe what is said during your Illinois divorce trial.

“The record of court proceedings may be taken by stenographic means or by an electronic recording system, including video conferencing services, approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.” Ill. Sup. Ct. R. 46(a)

One of the first steps in appealing an Illinois divorce case is that “the appellant shall make a written request to the court reporting personnel as defined in Rule 46 to prepare a transcript of the proceedings that appellant wishes included in the report of proceedings.” Ill. Sup. Ct. R. 323(a)

What If You Forget To Object, Offer Proof Or Move To Strike From The Record?

A lot is going on during an Illinois divorce trial. It is one thing to present evidence but another to object the opposing side’s evidence and be sure the objections are properly preserved for appeal. This is why trials (when properly conducted) often have two lawyers on each side.

If an error happens during trial and that error is on the record, the appeals court can still consider and reverse that error for the sake of justice even if there was not a proper objection, offer of proof or motion to strike…but only if the appeals court deems it necessary.

“The rule of waiver, however, is an admonition to the parties, not a limitation on the jurisdiction of this court. We may look beyond considerations of waiver in order to maintain a sound and uniform body of precedent or where the interests of justice so require.” In re Estate of Funk, 849 NE 2d 366 – Ill: Supreme Court 2006

“An exception to this waiver rule is found when an issue [is] of public importance…this court may consider the issue.” In re Marriage of Rodriguez, 545 NE 2d 731 – Ill: Supreme Court 1989

Whatever was forgotten better be really important. Otherwise, an Illinois appeals court is not going to save you. So, preserve the record properly for appeal.

The True Benefit Of Preserving Evidence For Appeal In An Illinois Divorce Trial

Good divorce lawyers can properly present evidence at trial. Great divorce lawyers can preserve that evidence for appeal.

Judges know what a lawyer’s motivations are when that lawyer objects, offers proof and moves to strike the evidence. Judges do not want to appealed by the lawyer that is preserving their case for appeal. Therefore, a judge will (consciously or unconsciously) give greater consideration to a lawyer’s evidence and arguments when that lawyer is exhibiting the capacity to appeal the case.

The human mind is not a computer that weighs evidence. The human mind gathers signals until it “feels” like it has arrived at the right decision. Reading a motion in limine, seeing an offer of proof, and citing the law are all signals. Highly competent lawyering signals to a judge that “this lawyer’s conclusion is probably the right one” even if the evidence says otherwise.

This is why good lawyers win cases. This is why good lawyers, sometimes, will even win cases they shouldn’t win.

If the results of your Illinois divorce hearing or trial matter to you, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.