In re Marriage of Calcagno, 2025 IL App (3d) 250299

Summary

Case Summary: In re Marriage of Calcagno, 2025 IL App (3d) 250299 - The article analyzes In re Marriage of Calcagno, a 2025 Illinois appellate decision that affirms exclusive-possession orders are immediately appealable under Supreme Court Rule 307(a)(1) because they retain an injunctive character—forcibly removing a spouse from the marital residence—regardless of statutory language changes in the Illinois Marriage and Dissolution of Marriage Act. The case also addresses the admissibility of court-appointed evaluator reports as hearsay, with the court finding that guardian ad litem testimony corroborating the report's conclusions can cure the absence of cross-examination of the evaluator, provided no specific outcome-determinative prejudice is demonstrated.

The opposing counsel is already on the back foot. If you thought exclusive-possession orders were procedural footnotes buried in temporary relief motions, the Third District just handed you a wake-up call wrapped in a 2025 opinion. In re Marriage of Calcagno isn't just another domestic-relations appeal—it's a tactical blueprint for high-stakes custody warfare, and your opposition either hasn't read it yet or is praying you haven't.

The Jurisdictional Question They Hoped Would Save Them

Here's what happened: Dawn Calcagno's counsel moved to dismiss the appeal entirely, banking on a technical argument that exclusive-possession orders aren't appealable under Supreme Court Rule 307(a)(1). The theory? When the legislature rewrote the Illinois Marriage and Dissolution of Marriage Act, the new Section 501(c-2) dropped the explicit injunction language that existed under the old Section 701.

The Third District wasn't buying it.

The court held that the nature of an exclusive-possession order—forcibly removing a spouse from the marital residence and fundamentally altering the status quo—retains its injunctive character regardless of statutory wordsmithing. Rule 307(a)(1) permits interlocutory appeals from orders "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." An exclusive-possession order does exactly that: it commands one party to vacate and stay away. That's injunctive relief by any functional definition.

Strategic translation: If you're on the receiving end of an exclusive-possession order, you have immediate appellate options. If you're the one who obtained it, prepare for the appeal now—not after you've let your guard down.

The 604.10(b) Report: Hearsay or Holy Grail?

This is where the case gets tactically interesting. Dr. Shapiro, the court-appointed evaluator under Section 604.10(b) of the IMDMA, submitted a comprehensive report recommending separation of the mother from the children. Dawn's counsel objected: the evaluator didn't testify, the report was hearsay, and cross-examination—that constitutional cornerstone—was denied.

The appellate court affirmed anyway.

The reasoning hinges on local practice and procedural choreography. The evaluator's report was treated as a court's witness report. The guardian ad litem testified, corroborated the evaluator's conclusions, and connected them to the evidentiary record. The absence of Dr. Shapiro for cross-examination, while noted, didn't render the report "outcome-determinative or so prejudicial as to require reversal."

Read that again. The court acknowledged the hearsay concern but found the overall procedural framework—GAL testimony tying the report to record evidence—sufficient to cure the defect.

Your move: If you're relying on a 604.10(b) report, make the evaluator available for testimony or lock down a stipulation on admissibility before the hearing. If you're opposing such a report, your objection needs teeth: demonstrate specific prejudice, demand the evaluator's presence, and create a record that shows the report was the sole basis for the adverse ruling. General hearsay objections won't cut it when the GAL is doing the heavy lifting.

Manifest Weight: What Actually Moves the Needle

Exclusive possession is an extraordinary remedy. Illinois courts don't hand it out because one spouse is "difficult" or the marriage has soured. The standard requires evidence that the physical or mental well-being of a party or the children would be jeopardized by continued cohabitation.

In Calcagno, the trial court found:


Prolonged estrangement between the mother and the children
Multiple therapeutic interventions that had failed
The evaluator's explicit recommendation of separation
A balancing of hardships that favored the children's stability over the mother's continued presence in the home


The appellate court emphasized that credibility determinations belong to the trial court. When the judge who observed the witnesses concludes that separation serves the children's mental well-being, that finding won't be reversed unless it's against the manifest weight of the evidence—meaning no reasonable person could reach the same conclusion based on the record.

Dawn's counsel argued the evidence was insufficient. The Third District disagreed, pointing to the documented history of failed interventions and the court's holistic assessment of the family dynamics.

Litigation reality: If you're seeking exclusive possession, your burden is to build a record that demonstrates jeopardy—not mere inconvenience, not garden-variety conflict, but genuine risk to physical or mental well-being. Document failed therapies. Subpoena treatment records. Get the GAL on the record. Make the trial court's job easy by presenting a narrative that no reasonable jurist could ignore.

The Cyber-Legal Angle You're Probably Overlooking

Here's where my practice intersects in ways most family lawyers miss. In high-net-worth dissolutions, exclusive-possession motions often coincide with discovery disputes involving digital assets, communications, and surveillance.

Consider: if one spouse has been monitoring the other's devices, accessing accounts without authorization, or deploying tracking software, that conduct is relevant to both the exclusive-possession analysis and potential sanctions. Illinois courts take a dim view of unauthorized surveillance, and evidence obtained through such means can be challenged—or weaponized.

In Calcagno, the record focused on therapeutic failures and parent-child estrangement. But in your next case, the predicate for exclusive possession might include evidence of digital harassment, unauthorized access to financial accounts, or covert monitoring that creates a hostile domestic environment.

Tactical integration: When preparing an exclusive-possession motion, audit your client's digital exposure. Has the opposing party accessed email accounts, installed spyware, or tracked location data? That's not just a privacy violation—it's evidence of the kind of conduct that jeopardizes mental well-being and supports extraordinary relief.

What This Means for Your Next Motion

The Calcagno decision crystallizes several practice points that separate competent counsel from strategic operators:


Treat exclusive-possession orders as immediately appealable. Rule 307(a)(1) jurisdiction is alive and well. If you win the motion, prepare for an interlocutory appeal. If you lose, file within the deadline—don't assume you're stuck until final judgment.

Control the 604.10(b) process. If the evaluator's report favors you, ensure it gets into evidence through proper channels—stipulation, local rule, or GAL testimony. If it hurts you, demand the evaluator's presence and create a record of specific prejudice from the denial of cross-examination.

Build the record for manifest weight. Trial courts have broad discretion. Your job is to make the factual findings inevitable by presenting documented evidence of jeopardy, failed interventions, and a clear balancing of hardships.

Integrate digital evidence. Cyber negligence, unauthorized access, and surveillance conduct are increasingly relevant to exclusive-possession analyses. If your opposing party has engaged in digital misconduct, that's leverage in discovery and ammunition for your motion.


The Bottom Line

The judge already knows that exclusive possession is an extraordinary remedy. Your job is to make the extraordinary look inevitable. Calcagno confirms that Illinois courts will uphold such orders when the record supports them—and will reject procedural gamesmanship designed to avoid appellate review.

If you're navigating a high-conflict custody matter where exclusive possession is on the table, the margin for error is razor-thin. The opposition is already calculating their next move. The question is whether you're three moves ahead.

Book a strategy session now. Your opposition is already losing—they just don't know it yet.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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