Appeals Court Lets Mother Keep Son Out Of State

Published In The Chicago Daily Law Bulletin:

A downstate appeals panel allowed a divorced mother with physical custody of a 3-year-old to remain in Ohio, overturning a trial court decision the judges deemed “arbitrary.”

A 5th District Appellate Court ruling this week authored by Justice Judy L. Cates granted the mother, Katherine A. Smith, permission to permanently remove her young son from Illinois in a joint custody arrangement with her ex-husband, Chase W. Smith.

The opinion partially overturned a ruling by 3rd Circuit Associate Judge Ben L. Beyers II, who denied the mother’s request during dissolution of marriage proceedings in June of this year.

In his decision, Beyers laid out two choices for the mother — either return to Illinois with the child in 30 days and be awarded split custody or remain in Ohio and get visitation rights while the father receives sole legal custody.

The appellate judges said that dichotomy “troubled” them.

“Such an alternative order implies that the minor child’s best interest will literally change overnight, depending on whether (the) [m]other opts to relocate to Illinois within 30 days or stay in Ohio,” Cates wrote in the ruling.

“Such an immediate and radical shift in the determination of what constitutes the ‘best interests’ of the child in a custody proceeding is not contemplated by the kind of alternative order entered by the trial court. It certainly is not contemplated by Section 602 of the Illinois Marriage and Dissolution of Marriage Act, which requires a detailed analysis of those factors to be considered when entering a custody award.”

Katherine had petitioned the court for temporary removal in 2011, when she got a marketing job in Columbus, Ohio, and sought to relocate with the couple’s son to a Columbus suburb.

She and her husband had lived in her parents’ basement in Maryville, Ill., after the birth of the child the previous year.

The husband worked at a mortgage servicing firm in St. Louis. She left her job at an advertising agency in Chicago to take care of the child.

But after only two months, their marriage soured and the husband moved out.

Katherine worked at a Home Depot while applying for more lucrative jobs in marketing that were located in the area, but received no offers until she was given the out-of-state position.

The husband contended that she was overly controlling during their time together and the trial court noted that she only spent four months looking for work before accepting the job in Ohio.

Testimony from a court-appointed guardian corroborated the notion that she “admittedly has a more rigid personality,” but the court noted that this was not unnatural for a first-time mother, nor was it necessarily a bad thing.

The court said she “is dedicated to the child’s best interest, from his nutrition and health care to his day care, schooling and personal safety.”

The appellate justices added that a “custodial parent is not required to exhaust all employment opportunities in Illinois before seeking employment out of state.”

And although the husband was more laid-back in his parenting style, the court said that had translated to ambivalence at times and the trial court’s decision to grant him custody if the mother did not return to Ohio would be against the child’s best interests.

Additionally, both parties agreed that the child was thriving at his home in Ohio.

“He is living in a good home with a number of nearby amenities including parks, a community swimming pool, high-quality schools and homes with younger children,” the court wrote.

“(The mother) has extended family in Ohio as well and her parents are trying to sell their home in Maryville so they can move to Ohio and be closer to their grandchild.”

While granting joint custody to the couple and allowing the mother to retain primary physical custody of the child in Ohio, the court “regretfully” remanded the case back to the trial court on the sole issue of working out a visitation schedule.

It also ruled the father should pay the mother $2,000 he owed in credit card debt that was incurred during the marriage.

Barbara L. Sherer, owner of the Law Office of Barbara L. Sherer in Edwardsville, represented Katherine. She said she has a lot of respect for Beyers, the trial court judge in the case, but is pleased the appellate court overturned the ultimatum he gave her client.  “It’s essentially a Hobson’s choice for parents,” Sherer said. “You either come back” or lose custody.

Fighting a Motion to Vacate and Reenter a Foreclosure

staff_sherer4A client of mine was recently faced with an unusual twist in his residential foreclosure case. While the circumstances that took him into foreclosure may not be that unusual, a stroke of unlikely good luck for my client made this a very interesting battle to protect his credit.

Several years ago, my client went through a divorce. As part of the settlement, his ex-wife was awarded the house, ordered to make the mortgage payments and refinance it in order to remove his name from the mortgage. The woman was responsible for compensating him if she ever missed the payments, failed to refinance and essentially compensate him if he ever had any liability or incurred attorney fees related to the house after the divorce.

The woman lived in the house and made the payments properly for some time as she was gainfully employed with a good salary. Then, she got remarried, moved out of the house and stopped making the mortgage payments. She never refinanced the home and actually never even made the effort to refinance it. Since both names were still on the mortgage documents, both the woman and my client were still responsible for the missed payments.

The mortgage company eventually filed foreclosure proceedings against the divorced couple. My client and I worked with the bank and tried to convince the ex-wife to begin making payments on the property or otherwise cooperate by turning the house over to the mortgage company. As the proceedings continued, another challenge was presented…

In an effort to withdraw from the situation, the ex-wife decided to file for bankruptcy. This put into affect an automatic stay – essentially protecting her from further pursuit of collection by the mortgage company and preventing my client from being able to make her pay the attorney fees for defense in the foreclosure proceedings.

After some time, the property officially went into foreclosure. The mortgage company issued an affidavit that attested to all the missed mortgage payments, interest on the loan, and the costs for attorney fees and filing fees. The house did not get sold at a foreclosure sale and was left to sit vacant. My client worried that the house would end up selling for less than what was owed on the mortgage and he would incur a deficiency judgment, which would hold him responsible for some payment to the mortgage company. Any debt that his ex-wife owed would be discharged in the bankruptcy proceedings.

Lucky Break

In all of this mess, however, my client did manage to catch one very lucky break. Somehow, the foreclosure did not make it onto his credit report or negatively affect his credit in any way. This was a very unlikely oversight by the credit bureaus and my client was careful not to take it for granted.

A few years later, another problem arose regarding my client’s case. The major law firm out of Chicago that represented the mortgage company was ordered to file to vacate the foreclosure proceedings in foreclosure cases in thirteen counties in Illinois and request to reenter the foreclosure judgments. Foreclosure affidavits that had been originally prepared and signed for numerous proceedings were deemed inaccurate not because their content was incorrect but because the first page had been retyped but not the second page, which contained the signature of the affiant. A Cook County Judge determined that the discrepancy did not comply with the statute regarding foreclosures.

The motion to “vacate and reenter” the foreclosures meant that every foreclosure in this particular firm’s foreclosure cases (in the thirteen counties) had to be cancelled (vacated) and re-entered with a fresh affidavit.

It was about eighteen months before the law firm representing the mortgage company entered a motion to vacate and reenter the foreclosure filed against my client. It had been more than two years since the original proceedings began and though my client had been making payments toward legal fees, the debts regarding the mortgage on the property still had not been reported against his credit. For this reason, my client strongly objected to vacating and re-entering the foreclosure judgment. He didn’t want to take any risks since he was sure that it was a purely chance occurrence that the credit agencies didn’t pick up on the filing or judgment the first time around.

In a fervent effort to protect my client’s credit, I spent several months trying to negotiate an alternative deal with the lawyers for the mortgage company, but every suggestion was met with resolute refusal.

Finally, on April 4, 2013, my client’s case was heard before a Madison County judge. We argued against the motion to vacate the foreclosure and WON! In thirteen counties and countless foreclosure cases, I had been the first and only attorney to challenge the motion. In addition to making logical arguments to protect my client’s credit, I also pointed out that an order issued by a Cook County judge is not binding on a Madison County judge.

I feel that this was an enormous victory for my client, and a worthwhile account to share with others. You don’t necessarily have to be forced to accept changes in your legal cases when you are not at fault for deficiencies or negligence. It is extremely wise to protect yourself by seeking legal counsel in such cases.