Posted on May 15, 2022

What Can You Appeal In An Illinois Divorce?

In an Illinois divorce, a judge is not always going to agree with you and your lawyer’s conclusions. When a judge rules against you during your Illinois divorce, that ruling may or may not be significant enough to bring that ruling before an appeals court for review. What is appealable in an Illinois divorce case?

Errors are appealable in an Illinois divorce. The whole point of an appeal is to identify a specific thing that the trial court did incorrectly. To appeal an Illinois divorce, you must identify the error(s).

There are two kinds of errors in an Illinois divorce, errors of law and errors of fact.

Errors of Law And Errors Of Fact In An Illinois Divorce

“Any error of law affecting the judgment or order appealed from may be brought up for review.”  Ill. Sup. Ct. R. 366(b)(1)(i)

An error of law is identifying the misapplication of the law by the trial court. Errors of law are always appealable…even if you only realize the error after the decision is rendered.

“The general rule, i.e., that an issue not presented to the trial court cannot be raised for the first time on appeal, is not rigid and inflexible. Questions of law not argued below may be considered on appeal where an injustice may result otherwise.” Hebb v. Beegle, 481 NE 2d 846 – Ill: Appellate Court, 5th Dist. 1985

Errors of fact are instances where the evidence is clearly misapplied to a wrongful conclusion.

“Any error of fact, in that the judgment or order appealed from is not sustained by the evidence or is against the weight of the evidence, may be brought up for review.”  Ill. Sup. Ct. R. 366(b)(1)(ii)

These errors must be identified in the appellate brief in a summary manner

“The appellant’s brief shall contain…[a] statement of the issue or issues presented for review” Ill. Sup. Ct. R. 341(h)(3)

Identifying Errors In An Illinois Appeal

The errors will be in the court’s findings.

A finding is “[a] decision upon a question of fact reached as the result of a judicial examination or investigation by a court” Black’s Law Dictionary (10th ed. 2014)

In an Illinois divorce, only the judge makes findings. There are no juries.

“There shall be no trial by jury under th[e Illinois Marriage And Dissolution of Marriage Act].” 750 ILCS 5/103.

Because there is no jury in an Illinois divorce trial, the trial judge heard all the evidence and made all of the findings. The trial judge in an Illinois divorce is not merely reviewing and approving the findings of a jury.

For appeals in an Illinois divorce case, no special motions or findings need be made to preserve the issue for appeal. The record should speak for itself.

“In non-jury cases the following rules govern: (i) Special Findings and Motions Unnecessary. No special findings of fact, certificate of evidence, propositions of law, motion for a finding, or demurrer to the evidence is necessary to support the judgment or as a basis for review. The sufficiency of the evidence to support the judgment is subject to review without formal action to preserve the question.” Ill. Sup. Ct. R. 366(b)(3)(i)

“Neither the filing of nor the failure to file a post-judgment motion limits the scope of review.” Ill. Sup. Ct. R. 366(b)(3)(ii)

“Although not required, it is the better practice for the trial court to set forth its reasons for arriving at the judgment it makes. Otherwise, the parties, and the reviewing court, are without the benefit of the trial court’s conclusions and are left to conjecture about the basis for its judgment.” Long v. Arthur Rubloff & Co., 327 NE 2d 346 – Ill: Appellate Court, 1st Dist. 1975

In an Illinois divorce there are multiple issues where courts must make written findings of how they arrived at certain decisions.

For property division, child support and maintenance, respectively, the courts must make the following findings in the following situations.

“The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

“Any deviation from the [child support] guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.4)

“In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows:(1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section;(2) if the court deviates from applicable guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and(3) the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/504(b-2)

Once these findings are issued in a decision, they can be compared at the appellate level to the actual evidence that was proffered and admitted (not always the same).

“[In] a bench trial, …[a] judge is presumed to consider only relevant, competent testimony.” People v. AUSTIN M., 975 NE 2d 22 – Ill: Supreme Court 2012

Improperly denying or sustaining an objection only becomes an appealable error if the evidence (or lack thereof) impacts the trial.

“Where a case is tried by the court without a jury…error in the admission of evidence is not grounds for reversal so long as there is sufficient competent evidence fairly tending to support the trial court’s judgment. A new trial should be ordered only when the evidence improperly admitted appears to have affected the outcome of the trial.” Gunn v. Sobucki, 837 NE 2d 865 – Ill: Supreme Court 2005

Errors occur in all trials, but the error must have had a prejudicial impact to warrant an appeal in an Illinois divorce.

Errors Must Be Prejudicial To Be Appealable In An Illinois Divorce

“A party asserting that an error has occurred must demonstrate to the court that he has been prejudiced by the error.” In re Marriage of Falat, 559 NE 2d 33 – Ill: Appellate Court, 1st Dist. 1990

It is the duty of the party appealing to both identify the error and the resulting prejudicial impact.

“The burden of establishing prejudice and showing that the trial court’s error affected the outcome of the trial is on the party seeking reversal.” DiCosolo v. Janssen Pharmaceuticals, Inc., 951 NE 2d 1238 – Ill: Appellate Court, 1st Dist., 5th Div. 2011

Appeals courts are there to fix errors in the trial court process. Appeals courts only see broken trials, so they are sympathetic to the many errors that can and do occur at the trial court level.

“Perfect trials exist only in fiction, and we are not called upon to insure that the record is totally free of error. Rather, we have as our object to determine whether any error occurred which operated to the prejudice of the defendant or unduly affected the outcome below.” Stromquist v. Burlington Northern, Inc., 444 NE 2d 1113 – Ill: Appellate Court, 3rd Dist. 1983

If the error is not prejudicial, the error is “harmless” and is governed by the harmless error doctrine.

“[An appeals] court may invoke the harmless error doctrine to dispose of claims of error that have a de minimus impact on the outcome of the case.” People v. Blue, 724 NE 2d 920 – Ill: Supreme Court 2000

Errors Alone Are Not Prejudicial In An Illinois Divorce

While it findings are usually the appealable error, the Illinois divorce hearing or trial process may be so rife with prejudice in itself that the subsequent finding must also be prejudicial.  

“[I]t is prejudicial for a trial judge to make comments which indicate he harbors feelings of hostility toward a party or his attorney” Korbelik v. Staschke, 596 NE 2d 805 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

“It is improper for a judge to unduly criticize a party or its counsel in such a manner as to show a bias against or hostility towards a party.” Pavilon v. Kaferly, 561 NE 2d 1245 – Ill: Appellate Court, 1st Dist., 5th Div. 1990

The only way to identify a prejudicial process is by recording prejudicial statements with a court reporter.

You Can’t Complain About Errors You Asked For

Illinois law does not let you have your cake and eat it, too. If you argue a point…and a court agrees with you, you cannot appeal the finding that you had previously agreed with. This is called an “invited error.”

“A party who argues that the trial court erred by acceding to the party’s own suggestion cannot be heard to complain of the invited error.” In re Marriage of Samuel, 915 NE 2d 821 – Ill: Appellate Court, 4th Dist. 2009

“[T]he doctrine of invited error prohibits any party from complaining of an error on appeal which that party induced the court to make or to which that party consented.” Siwek v. White, 905 NE 2d 278 – Ill: Appellate Court, 1st Dist., 5th Div. 2009 (citations omitted)

Once the error is identified, determined to be prejudicial and not invited, the court can then review the error as being a question of law, against the manifest weight of the evidence or there was an abuse of discretion on the part of the trial judge.

“A fair trial…is different from a perfect trial” People v. Herron, 830 NE 2d 467 – Ill: Supreme Court 2005 You can get a fair divorce trial in Illinois by merely exhibiting the appearance of preparation for appeal. Identifying the errors in a trial via objections and offers of proof may have significant impact on the findings of a judge who does not want to be appealed. Even if you don’t get the finding you want, you will be prepared to have the matter reconsidered by an appeals court.

If your Illinois divorce case is going to trial, you must be prepared to appeal. Otherwise, all these rules, all the objections are for not. The judge is just going to do what they want…not what you want. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

If you are prepared to appeal a recent decision (remember, you only have 30 days to appeal a final order), then I strongly recommend you contact Illinois family law appellate lawyer, David Gotzh. He is a colleague and a peer who focuses exclusively on filing and winning Illinois family law appeals.

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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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