 |
Home | Search | Browse | About IPO | Staff | Links |
|
Home | Search | Browse | About IPO | Staff | Links |
|
Judicial Rulings  Illinois Supreme Court No 'palimony' in Illinois First, it strikes down in Illinois the so-called "palimony" settlements popularized in a controversial California case earlier this year. In that case, former singer Michelle Triola won a property settlement from actor Lee Marvin on the grounds she gave up a singing career to devote herself full time to him during the seven years they lived together. The Marvin case was considered a precedent because the courts for the first time extended legal rights to nonmarried wives, excluding only those who were mistresses. Second, the decision clearly puts social issues such as marriage and divorce within the province of public policy and under the jurisdiction of the legislature. That marks the return of what many observers consider the constitutional role of the courts to interpret laws. The Supreme Court ruling overturned an appellate decision and upheld a circuit court decision. The case, Hewitt v. Hewitt, stemmed from a suit filed by Victoria Hewitt seeking half the property she and Robert Hewitt acquired during the 15 years the Champaign couple lived together. Victoria Hewitt charged Robert had promised he would "share his life, his future, his earnings and his property" with her. She also said he had no money when the two began living together in 1960 but wasearningabout$80,000 a year as a children's dentist when they separated in 1975. She charged she worked and borrowed money from her parents to put him through school and set up his practice and that she continued working later as his assistant, plowing her salary back into the business. Although the Hewitts had three children, child support never became an issue, the high court noted, because Robert acknowledged paternity and agreed to pay child support. The Champaign County Circuit Court dismissed the suit on the grounds Victoria Hewitt had no property rights because the two had never legally married. The Fourth District Appellate Court disagreed, ruling that she was entitled to a partial property settlement because she personally had not "so affronted public policy that she should be denied any and all relief." The appellate court said that while the Hewitts were not legally married they nevertheless had lived "a most conventional, respectable and ordinary family life." The appellate court based its ruling on the Marvin decision, which the California courts considered a case in contract law. They allowed palimony on the grounds that non-married couples have property rights if their relationship demonstrates an implied contract or some kind of tacit understanding of mutual rights. The Illinois Supreme Court, however, held that the appellate court erred when it applied the Marvin decision only to couples like Hewitts who adopted a conventional family lifestyle. The high court said that set a dangerous property rights precedent which undoubtedly would lead to a reinstatement of common law marriage, outlawed in Illinois since the turn of the century. And the court said common law marriage could reasonably be expected to become more attractive than traditional marriage because its property rights would be more liberal. In delivering the high court's opinion, Justice Robert C. Underwood, said palimony in Illinois is a public policy issue in which society's rights are clearly more important than individual rights. The high court, applying the Marvin decision to the Hewitt case, concluded the California case did not set a precedent in Illinois. California, which has no-fault divorce, is a state which sanctions palimony and common law marriage on the grounds that marriage and divorce fall under contract law. Under the contract law theory, the courts held that contracts for such aspects of living together as housekeeping and home-making can be legal, while those for sexual services remain outside the law. Underwood calls the concept of non-sexual contracts between nonmarried couples "naive." The high court points to the comprehensive marriage and divorce laws the Illinois General Assembly put on the books in 1977 as a pro-marriage pronouncement of public policy. Underwood said Illinois courts and those in other states with similar laws, have refused to grant property rights to nonmarried couples since then. While the 1977 law apparently left Illinois among three states that still allow fault as grounds for divorce, the high court feels Illinois remains in step with the rest of the country. Other legislatures, if not other courts, still feel marriage and divorce are public policy, or subject to society's standards. Public policy, Underwood said, falls under the jurisdiction of the legislature, not the courts. "The issue, realistically, is whether it is appropriate for this court to grant a legally status to a private arrangement substituting for the institution of marriage sanctioned by the State. The question whether change is needed in the law governing the rights of parties in this delicate area of marriage-like relationships involves evaluations of sociological data and alternatives we believe best suited to the superior investigative and fact-finding facilities of the legislative branch in the exercise of its traditional authority to declare public policy in the domestic relations field." Implied consent The case, People v. Thomas G. Malloy stems from Malloy's 1977 arrest on drunk driving charges. Malloy was advised that refusing to take a breath analysis test might mean his license would automatically be suspended or revoked. He refused and requested a court hearing on the matter. The Moultrie County Circuit Court ruled in his favor, arguing that the state had not adequately informed him of the penalty When the state appealed, the Fourth District Appellate Court refused to hear the case arguing it could be appealed only after the state suspended or revoked the license and then only by an administrative agency. The appellate court refused on the grounds that laws govern licenses but rules for enforcing the laws govern breath analysis tests. Courts handle the laws, but administrative agencies handle the rules. Justice Thomas E. Kluczynski, in delivering the high court's opinion, said the appellate court's refusal was based one "misperception of the nature of implied consent hearings." The high court said appeals belong in the courts because initial hearings are there arguing that because ruling comes from 28/ November 1979/ Illinois Issues courts, the appeal should go there. (The high court also said the state would not have to suspend or revoke licenses before either party could appeal.) The high court pointed to state statutes and the Constitution which designate implied consent cases as civil matters, under judicial, not executive jurisdiction. Also, the high court said administrative appeal might force the appealing party to seek a second hearing in a second circuit court. Seeking a second opinion in legal matters is considered bad form. Judicial-legislative powers at circuit-county level The case, Bier v. Scholz, stemmed from a disagreement between the presiding circuit court judge and the county board over salaries for the probation officer and youth home superintendent in Adams County. Adams County Circuit Court Judge Richard F. Scholz Jr. had recommended the salaries be $18,000 and $15,000, respectively. The board, however, set them at $16,500 and $14,850, respectively. When Scholz used an administrative order to increase the salaries, Adams County State's Attorney Robert J. Bier filed a petition for a writ of mandamus to expunge the salary increase from the administrative order. Bier argued that Illinois law clearly gives the county board the power to set salaries of nonjudicial officers of the court. But Scholz countered that there are strings attached to the statutory authority, which call on county boards to provide money for "reasonable and necessary expenses." He also argued that judges have constitutional power to efficiently operate courts. The issue centered on whether the county board had set the salaries so low the presiding judge had been forced to raise them to ensure efficient operation of the court. In delivering the high court's opinion, Justice Daniel P. Ward said, "On the record before us, however, we cannot say that the difference is so great that it can be deemed that the salary set by the Board must be judged to be unreasonably low and that the salary called for by the respondent [Scholz] is a necessity for the efficient operation of the court." Ward extensively quoted other state supreme courts in similar Pennsylvania and New Jersey cases: "The Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer justice, if it is to be in realityaco-equal, independent Branch of our Government .... this inherent power should be exercised very sparingly, in deference to the prerogatives of the legislative and executive branches. It should be invoked by the judicial branch only where necessary personnel and facilities are not provided by the other branches of government through the traditional and conventional methods. The separation-of-powers doctrine contemplates that the several branches will cooperate to the end that government will succeed in its mission." However, the high court sidestepped charges Scholz made in filing a plea in the case, that the Adams County Board had failed to provide adequate court room facilities or enough money for the court's law library, among other things. Ward, in his opinion, said Scholz' charges were not the issue since Bier wanted to expunge only the salary portions of the administrative order. Child custody The high court ruling overturned an appellate decision and affirmed a circuit court decision on the grounds that public policy clearly gives the stability of the children's environment precedence over the rights of the parents. The case, Harne v. Johnson, stemmed from Gene Harne's petition to regain custody of the two children awarded his ex-wife Nancy Harne Johnson when the Rockford couple divorced in 1972. Harne filed the custody petition in 1976, alleging that Johnson had voluntarily awarded custody of the children to her parents a year earlier. At the time of the circuit court hearing, Johnson lived in an apartment above a tavern and worked as a janitor at a disco. The Winnebago County Circuit Court transferred custody to Harne, arguing that Johnson's circumstances had changed to the extent the present environment was potentially dangerous. Judge John C. Layng, in delivering that opinion said Johnson "does not have the stability or ability that is necessary to maintain and care for the children, that they have been living with their grandparents rather than the Respondent [Johnson], and that under these circumstances, their present environment could seriously affect their physical, mental, moral or emotional health." The Second District Appellate Court disagreed, arguing that the circuit court had not specifically found that circumstances had changed to the extent they were potentially dangerous. The high court upheld the transferral of custody to Harne, ruling that while the circuit court could have been more specific in its findings, they were sufficient. In delivering the high court's opinion, Justice Robert C. Underwood said ". . . we think that there was substantial evidence indicating that the long-range interests of the children would be served .... The children's mother, the legal custodian, had given her parents actual physical custody of the children. The mother clearly was unable to assume responsibility for the care of her children, and her parents' age made it quite unlikely that they could continue indefinitely to do so. On the other hand, the father of the children was remarried, steadily employed, and owned a three-bedroom house. His present wife wanted the children to live with them." But Underwood said the central issue of the case was whether the law requires the courts to find circumstances have changed to the extent the present environment is potentially dangerous. He pointed to Illinois' 1977 Marriage and Dissolution Act, which is patterned after federal law. "By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child's custodial and environmental relationships which is not to be lightly overturned," Underwood said. He went on to cite commission notes to the federal law: "Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree's finality is more important than determining which parent should be the custodian .... Any change in the child's environment may have an adverse effect, even if the noncustodial parent would better serve the child's interest."□ November 1979/ Illinois Issues/ 29 |
|
|