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Italy qualified as the proper forum to assume jurisdiction because it was “in the best interest of the child,” since both of the child’s parents had a significant connection with Italy and there was available in Italy substantial evidence concerning the child’s housing, support, education, medical and dental care and personal relationships; therefore, the judgment entered in the Italian court was subject to enforcement in the Illinois courts and the trial court did not err in dismissing petition for dissolution of the marriage and transferring the cause back to the courts of Milan, Italy.  In re Silvestri-Gagliardoni.

Custodial parent who removed children from Illinois to Louisiana and obtained a Louisiana court order that prohibited visitation by the other parent the day prior to a scheduled visitation was properly found in contempt of the Illinois visitation order because the Louisiana order did not excuse the custodial parent’s noncompliance where it was intentionally procured as a way not to follow the order with which the custodial parent disagreed and because the Illinois court retained exclusive jurisdiction over the matter regardless of where the children were taken.  In re Marriage of Kneitz.

 IN THE CIRCUIT COURT OF THE NINETEENTH
 JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS

JESSICA FAN,                    )
                Plaintiff,                )
                                               )
v.                                            )   No. 2002 LM  2222
                                               )
CONNIE W,                          )
                Defendant.            )

       AMENDED PETITION TO VACATE JUDGMENT UNDER
 SECTION 2-1301

Petitioner, CONNIE W, by and through her attorneys, states:

     1.  Petitioner is the Defendant and Respondent is the Plaintiff in this action, wherein on July 23, 1992, judgment was entered for Respondent against Petitioner (a copy of said judgment is hereto incorporated and attached as “Exhibit A”).

2.  Said judgment is invalid and should be vacated and set aside because Petitioner was not delinquent in her monthly rental payments and thus not subject to a forcible detainer action.

3.  On July 23, 1992, the Court was unaware that the Petitioner was current with her rental payments.  Petitioner has possession of a letter from the Waukegan Housing Authority stating that the Petitioner has paid her monthly rent through the month of August, specifically the month of June 1992. (a copy of which is hereto incorporated and attached as Exhibit B”). 

4. Since the Petitioner is a Section 8 Program participant, the Waukegan Housing Authority forwards the monthly payment to the Respondent, on behalf of CONNIE W.

5.  Petitioner has been diligent in presenting her defense in the original action herein in that Petitioner, without any fault or negligence on her part, on advise of counsel, believed that her presence was not necessary.  Further, on the advice of a physician, the Petitioner was informed that she should remain off her feet during a time period that included the trial date. 

6.   The Petitioner in her stead sent her daughter to explain the above situation to the court.  The court would not entertain her request.

7.  Petitioner has been diligent in promptly thereafter presenting this Petition to the Court pursuant to Chapter 110 Illinois Revised Statutes, Section 2-1301.
8.  Petitioner CONNIE W’S affidavit in support of this motion is attached hereto marked “Exhibit C” and incorporated herein.
 
WHEREFORE Petitioner request the said judgment heretofore entered herein be vacated and set aside, and for such other, further, and different relief as the Court deems just.

                                                           
                                 One of Petitioners’ Attorneys

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Where the parties made a contribution of marital property in order to purchase a marital asset, namely, a pension, the trial court did not abuse its discretion by awarding the wife appropriate share at dissolution.
An employee’s widower was entitled to an annuity where it was admitted that the employee and beneficiary were married at the time of her death, regardless of separation, for former Ill.Rev.Stat., Ch. 68, para. 22 (see now 750 ILCS 5/101 et seq.) had been repealed, and when its provisions were reenacted under this Act, the provision that persons who live separate from their spouses “without their fault” were entitled to support was deleted.
An employee’s widower was entitled to an annuity where it was admitted that the employee and beneficiary were married at the time of her death, regardless of separation, for former Ill.Rev.Stat., ch. 68, para. 22 (see now 750 ILCS 5/101 et seq.( had been repealed, and when its provisions were reenacted under this Act, the provision that persons who live separate from their spouses “without their fault” were entitled to supported was deleted.
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Bank Accounts
 Where the trial court erred in classifying wife’s savings plan as marital property, on remand, the trial court was to include the savings in wife’s non-marital estate, and the marital estate was to be reimbursed for the contributions made to the savings plan after the date of marriage.  In re Phillips
 Business assets of cleaner business operated by husband and wife were properly awarded to wife pursuant to former Ill.Rev.Stat., ch. 40 para. 18 (see now this section) where all of the real estate was carried in her name, all money was handled by her and all checks signed by her, she operated as the sole and exclusive owner, and there was no proof that she ever recognized or held out her husband to be partner in the business or to have any other interest save as an employee.  Sykes v. Sykes
Commingling with Marital Property
 Where a spouse commingles non-marital property with marital property by investing non-marital funds in the marital home, a court may refuse to trace the investment and refund it to the paying spouse.  In re Cleveland
Debt
 Where there was evidence to support a finding that a debt was too uncertain to be included in the marital estate, the decision was not against the manifest weight of the evidence nor an abuse of discretion.  In re Pickell

Where the agreement states a percentage of income as support, the trial court should apply subdivision (a)(3) to determine the net income, and then state the child support as a dollar amount. In re Sheetz.
 Former husband who paid in excess of specific sum set forth in settlement agreement who, at the time of the agreement, had a retarded child, and who made payments equal to 50% of his income, did not have to pay 50%  of his income to ex-wife for alimony and support years later. In re Whetstone.
 Order setting a mother’s child support at a certain percentage of her income was not final and appealable, and therefore related orders on the issues of custody and visitation were not final and appealable, where the child support order did not set a particular dollar amount. Shermach v. Brunory.
 Although each judgment of support order arrearages has the full force, effect, and attributes of any judgment of this state, including the ability to be enforced, this fact alone will not confer appellate jurisdiction; if such judgments for arrearages were deemed final for the purposes of appeal, then an appeal conceivably could be taken with every monthly installment, thereby creating piecemeal appeals. In re Ryan.
 In accordance with the Illinois Parentage Act of 1984, 750 ILCS 45/1 through 27, trial courts “shall” use the guidelines and standards set forth in 750 ILCS 5/505 in determining whether to modify an order for child support in accordance with 750 ILCES 5/510 Anderson v. Heckman.
 The standards contained in this section regarding child support are applicable to the determination of temporary child support. In re Rogliano.
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Defendant’s credit card payments represented current obligations owed in conjunction with the same marital dissolution in which modification of support payments was being sought; they were not “prior” within the meaning of subdivision (a)(3)(g), and therefore not deductible, as they were not obligations to a “family that is first in time in relation to another family.” In re Benish.
 The trial court did not abuse its discretion in dividing the day care costs evenly between parents in addition to awarding child support. In re Serna.
 Nothing in the record demonstrated that the depreciation expenses claimed on taxpayer’s forms were utilized to repay an outstanding debt, nor was any specific repayment schedule provided as a result of the expense, thus the expense did not fall into the category of debt repayment. In re Nelson.
 The word “necessary” as used in subdivision (a)(3)(h) was intended to describe those expenses outlaid by a parent with a good faith belief his or her income would increases as a result, and which actually did act to increase income, or would have done so absent some extenuating circumstances. In re Davis.
 Simply because an expense falls into the category of a debt repayment does not mean that it is necessarily deductible from gross income for child support payments; merely qualifying as a deductibility under subdivision (a)(3)(h). In re Davis.
 A father was denied his right to a full hearing on the issue whether he had a valid excuse for not complying with the court’s order to pay child support and medical bills where his counsel requested an opportunity to present evidence which would demonstrate that he was telling the truth when he stated that he had no funds and the court refused to permit him to adduce such evidence. In re Mayer.
 

 Under normal circumstances, a court does not have jurisdiction to dispose of property in a proceeding for legal separation except where property is submitted for disposition by agreement of the parties.  In re Lipkin
 Circuit court had jurisdiction to adjudicate property interests of parties to a proceeding for legal separation under this Act.  In re Leff
 This Act does not give the court authority to distribute property until after the dissolution of marriage has been granted.  In re Pahlke
 The circuit court had full and complete jurisdiction of the subject matter of the petition filed by the respondent that petitioner had abandoned the marital home and that he might be required to provide a home for their three children; therefore, trial court’s granting of interest in home to petitioner was proper.  English v. English
 If the trial court had not ordered the property sold and the debts paid, it would have been impossible for the defendant to make the child support payments ordered by the court; under these circumstances, the trial court had implied or ancillary jurisdiction to order the sale of the real and personal property in question.  Fields v. Fields
 In determining the propriety or impropriety of a divorce decree ordering conveyance of property under former section 17 of the Divorce Act (see now this section), the authority of the court was based upon powers conferred by statute rather than upon general equity powers.  Debrey v. Debrey
 Under former section 17 of the Divorce Act (see now this section), absent specific legislated authority, a chancery court was devoid of jurisdiction to adjudicate, allot, dispense or otherwise dabble with the separate property of the parties to a divorce.  Schouten v. Schouten
 A court’s power to determine property rights can be based only upon a valid divorce decree.  Lemon v. Lemon
 The court had no power to finally determine the interest defendant had in plaintiff’s property until a divorce had been granted.  Klajbor v. Klajbor
 A court cannot, in the absence of a decree of divorce, determine property rights, award alimony, or dispose of the custody of the child.  Ollman v. Ollman

Purpose of Depositions

 Discovery depositions can be the most valuable form of discovery.  They are also the most expensive, with the client incurring the cost of the attorneys’ fees necessary to prepare for and take the deposition and the court reporting expenses for the attendance at and transcription of the deposition.

 From a practical standpoint, discovery depositions give a lawyer a chance to hear the testimony of a witness before trial, to assess the credibility and demeanor of that witness, and to “freeze” that witness’ testimony on certain key issues.  The discovery depositions of the parties to divorce litigation, when both parties and their counsel are present, often provide a forum for an off-the-record discussion of the issues in the case and at times turn into unplanned settlement conferences.

Under Supreme Court Rule 212(a), there are four uses for a discovery deposition:

(1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness;

 (2) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person;

 (3) if otherwise admissible as an exception to the hearsay rule; or

 (4) for any purpose for which an affidavit may be used.

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 A mental or physical examination may be had as follows:

 In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination.  Supreme Court Rule 215(a)

 The party shall suggest the examiner and identify the specially or discipline of the examiner.  The court has the discretion to reject the specific examiner selected and choose another examiner suggested by the party.  No authority exists for the court to select an examiner not suggested by the party requesting the examination.

 The examiner appointed under Rule 215(a) must, within 21 days of the completion of the examination (unless extended by the court), provided a written report to counsel for both parties setting forth findings, test results, and diagnosis and conclusions.  If the report is not timely delivered, neither the report, the examiner’s testimony, nor any of the underlying test results or findings are admissible in evidence unless offered by the party who was examined.  See Supreme Court Rule 215(c).
 Subsequent to the enactment of 750 ILCS 5/604.5, these use of Rule 215(a) to obtain a mental examination of a party relative to custody and visitation issues has been greatly reduced, if not eliminated.  However, Rule 2159a) is still necessary and can be used to obtain a mental or physical evaluation of a party on other issues.  A number of sections of the Illinois Marriage and Dissolution of Marriage Act have the potential of raising issues surrounding the mental and physical health of the parties or their minor children, including IMDMA §503 dealing with physical health of the parties or their minor children, including IMDMA §503 dealing with property division, IMDMA §504 dealing with maintenance, and IMDMA §505 dealing with child support.

 IMDMA $503(d)(8) provides that the court is to consider in dividing the marital estate “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.”

 IMDMA §505(a)(2)(d) provides that the court is to consider in awarding child support “the physical and emotional condition of the child, and his educational needs.”

 One common use for obtaining a mental or physical exam of a party relative to economic issues occurs when a party asserts that, due to some mental or physical condition, he or she is unable to work and is therefore seeking maintenance or a disproportionate share of the marital estate from the other party.  Having put his or her mental or physical condition at issue, the party is subject to an exam under Rule 215(a).

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