In re Marriage of Warren

Summary

Case Summary: In re Marriage of Warren - The Warren decision confirms that Illinois courts cannot sua sponte reallocate decision-making authority without proper pleadings, as doing so violates due process notice requirements—a procedural shield practitioners can invoke when trial courts exceed the scope of filed motions. Equally critical, the case demonstrates that contempt enforcement fails without specific dollar amounts and deadlines in the underlying order, making precise drafting at the judgment stage essential to any future enforcement strategy.

The opposing counsel just handed you a roadmap to their own defeat—they simply don't know it yet.

The Third District's recent decision in In re Marriage of Warren is a masterclass in what happens when practitioners get sloppy with pleadings, imprecise with orders, and careless with the appellate record. If you're handling high-asset custody modifications in Illinois, this case should be required reading. Not because it breaks new ground—it doesn't—but because it exposes exactly how cases are won and lost on procedural discipline.

Let me break down what actually matters here.

The Setup: When Proximity Becomes a Weapon

The facts are straightforward enough: parents divorce after a 15-year marriage, three minor children, father gets majority parenting time and sole decision-making over educational and extracurricular activities—including, critically, "professional acting and competitive dance." Mother initially lives in Oak Park while father and children remain in Naperville.

Then mother makes a strategic move. She relocates to Naperville, now living seven minutes from father's residence. She files for modification in May 2024.

Father, appearing pro se, fights back with a contempt petition alleging mother diverted the children's acting earnings to new accounts. He loses on both fronts at trial—and then watches the court sua sponte strip him of decision-making authority over the children's professional acting careers.

The appellate result? Two affirmances and one reversal that should make every family law practitioner in this state sit up straight.

Holding One: Relocation Cuts Both Ways

The court affirmed the modification to 50/50 parenting time, finding that mother's move to Naperville constituted a substantial change in circumstances under Section 610.5(c). This isn't surprising—the statute requires a change arising after entry of the order or not anticipated therein, plus a showing that modification serves the children's best interests.

Here's the tactical insight: proximity is leverage. When mother lived in Oak Park, the distance justified father's majority time. When she eliminated that distance, she eliminated his strongest argument for the status quo.

Father tried arguing that the possibility of mother's relocation was discussed during the original proceedings. The court rejected this, citing In re Marriage of Virgin: courts must implement parenting schedules based on current circumstances, not speculative future events.

Translation: what was hypothetical then is concrete now. The landscape changed. The parenting plan had to change with it.

For practitioners, this cuts both ways. If your client is the custodial parent relying on geographic advantage, you need contingency planning for exactly this scenario. If your client is the non-custodial parent considering relocation, understand that moving closer isn't just about convenience—it's about building the factual predicate for modification.

Holding Two: Your Contempt Order Is Only as Good as Its Specificity

This is where father's case collapsed—and where most practitioners should feel a chill down their spine.

Father alleged mother diverted children's acting earnings and failed to repay funds previously ordered restored. Sounds like a clear contempt case, right? Wrong.

The original order lacked a specific dollar amount to be repaid. The court found it unenforceable for contempt purposes, citing People ex rel. City of Chicago v. Le Mirage: contempt requires a clear, concise order that is easily understood.

But it gets worse. Father attempted to prove his case using bank statements, but he never properly admitted them into evidence. He used them to refresh his recollection during testimony—which is not the same thing as offering them as exhibits. The court couldn't consider evidence that wasn't in the record.

This is basic trial practice, but pro se litigants trip over it constantly—and frankly, so do some attorneys who should know better.

The lesson is non-negotiable: if you're drafting an order that might need enforcement, include specific dollar amounts, specific deadlines, and specific consequences. "Restore the funds" is worthless. "Restore $47,500 to Account No. XXXX-1234 at First National Bank by December 15, 2024" is enforceable.

And if you're trying the case, get your exhibits admitted. Formally. On the record. Every single time.

Holding Three: The Sua Sponte Trap

Here's where the trial court overreached—and where father finally won something on appeal.

After the hearing on parenting time and contempt, the court sua sponte awarded mother decision-making authority over the children's professional acting jobs. No party had filed a motion seeking this relief. No pleading raised the issue. The court simply decided, on its own initiative, to reallocate decision-making.

The Third District reversed, and the reasoning is fundamental: courts cannot adjudicate issues not raised in proper pleadings. Citing Suriano v. Lafeber and In re Custody of Ayala, the court found this violated father's due process rights to notice and opportunity to be heard.

There's also a statutory problem. Section 610.5(a) prohibits modifications to decision-making responsibilities within two years of the original order absent affidavits showing serious endangerment. The original judgment was entered in November 2023; the hearing was in January 2025—barely past the two-year mark, and mother hadn't filed the required motion or affidavits anyway.

For practitioners, this creates both a shield and a sword:

• Shield: If the court starts venturing into issues not raised in the pleadings, object immediately. Put it on the record. Preserve the error.
• Sword: If you want decision-making modifications, file the proper motion. Don't assume the court will do your work for you—and don't count on keeping relief that wasn't properly requested.

The Unresolved Question: What Is an "Extracurricular Activity"?

The original parenting plan gave father decision-making over "extracurricular activities," explicitly including "professional acting and competitive dance." The trial court apparently concluded that professional acting jobs—where children earn income—shouldn't fall under "extracurricular activities" and thus shouldn't remain under father's control.

The appellate court didn't resolve this on the merits. Because the reversal was procedural (no proper pleading, no due process), the substantive question remains open: Is a child's professional employment an "extracurricular activity" subject to the same decision-making framework?

This matters enormously for families with child performers, athletes, or influencers. The income streams can be substantial. The scheduling demands can be intense. The potential for parental conflict is obvious.

If you're drafting a parenting plan involving a child with professional earning potential, don't rely on generic "extracurricular" language. Define your terms. Specify whether professional engagements, contract negotiations, and earnings management fall under educational decisions, extracurricular decisions, or a separate category entirely. The ambiguity in Warren created litigation; your drafting should prevent it.

The Cyber-Law Intersection: Digital Evidence and Financial Tracking

This case involved allegations of diverted earnings and newly created accounts. In the modern landscape, these disputes increasingly turn on digital evidence: bank records, payment app histories, email communications about contracts and compensation.

Father's failure to properly admit bank statements wasn't just a procedural error—it was a failure to build the evidentiary foundation that digital financial records require. Authentication matters. Chain of custody matters. Proper disclosure under discovery rules matters.

If you're pursuing—or defending against—allegations of financial misconduct involving children's earnings, treat the digital evidence with the same rigor you'd apply to any complex financial discovery. Subpoena records directly from institutions when possible. Authenticate through competent witnesses. Don't assume that printing out a PDF and waving it around at trial constitutes admissible evidence.

And if your opposing party has been sloppy with digital records—failing to disclose accounts, creating new financial vehicles without notice, moving money through apps that leave trails—that sloppiness is leverage. Cyber negligence in family law isn't just about data breaches; it's about the forensic record of financial behavior that sophisticated discovery can expose.

Record Preservation: The Missing GAL Report

One final note that practitioners ignore at their peril: the appellate record in Warren was incomplete. The GAL report addressing best interests wasn't included.

The court noted this gap and applied the standard presumption: when the record is incomplete, reviewing courts presume the missing evidence supports the trial court's ruling. Father's appeal on the parenting time modification was already uphill; the missing GAL report made it steeper.

If you're taking a case up on appeal, ensure the record is complete. If you're defending a trial court ruling, an incomplete record may be your friend—but don't count on opposing counsel's negligence as your appellate strategy.

Strategic Takeaways

For petitioners seeking modification: Changed circumstances must be concrete and current. Speculation about what might happen doesn't trigger Section 610.5; actual changes in living arrangements, proximity, or parental capacity do. Build your factual record accordingly.

For respondents defending against modification: The two-year bar on decision-making modifications under Section 610.5(a) remains a significant procedural shield. If the other side hasn't filed proper pleadings with endangerment affidavits, they can't get that relief—and neither can the court on its own motion.

For anyone drafting orders: Specificity is enforceability. Vague directives to "restore funds" or "comply with the agreement" are worthless when you need contempt enforcement. Dollar amounts. Account numbers. Deadlines. No exceptions.

For anyone trying cases: Admit your exhibits. Formally. On the record. Using a document to refresh recollection is not the same as offering it into evidence. This is first-year trial practice, but experienced attorneys forget it under pressure—and pro se litigants never learned it in the first place.

The Bottom Line

In Warren, father won on the sua sponte issue but lost on everything else—largely due to procedural failures that better preparation could have prevented. Mother's strategic relocation paid dividends. The trial court's overreach got corrected. And the substantive question about children's professional earnings remains open for the next case to litigate.

This is a Rule 23 order, which means its precedential value is limited. But its practical lessons are universal: draft precise orders, preserve complete records, object when courts exceed their authority, and never assume that being right on the facts will save you from being wrong on the procedure.

Your opposition may already be making these mistakes. The question is whether you're positioned to exploit them.

If you're facing a modification battle in the Chicago area—or trying to protect decision-making authority, enforce financial obligations, or navigate the complexities of child earnings and professional activities—the time to get serious legal counsel is before the hearing, not after the appeal.

Book a consultation now. The other side 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.

Free Case Assessment

For more insights, read our Divorce Decoded blog.