In re Marriage of Ziskind, 2025 IL App (1st) 241157-U

Summary

Case Summary: In re Marriage of Ziskind, 2025 IL App (1st) 241157-U - The Ziskind decision demonstrates that the Foutch presumption transforms an appellant's failure to provide transcripts, bystander's reports, or agreed statements into an automatic affirmance—the reviewing court presumes the trial court's contempt findings had adequate factual and legal support. For practitioners, this means appellate success in contempt and body-attachment cases is determined at the trial level through meticulous record creation, not through post-hoc briefing arguments.

The opposing counsel is already on the back foot—and your client's ex-husband just handed you the appellate equivalent of a loaded weapon pointed at his own foot.

The First District's recent decision in In re Marriage of Ziskind isn't just another unpublished order gathering dust in the Westlaw archives. It's a masterclass in how not to handle an appeal—and a strategic blueprint for family law practitioners who want to ensure their contempt orders stick like industrial adhesive.

The Setup: When Body-Attachment Writs Meet Appellate Incompetence

Here's the situation: Yuriy Ziskind found himself on the wrong end of an indirect civil contempt finding. A body-attachment writ was stayed in October 2023, then that stay was lifted in April 2024. The trial court committed him until he purged the contempt.

Standard enforcement mechanics. Happens every day in Cook County.

What happened next is where this case becomes required reading for every family law attorney in Illinois.

Ziskind appealed pro se. He failed to provide transcripts. He failed to submit a bystander's report. He failed to file an agreed statement of facts. His brief violated Supreme Court Rule 341 in nearly every conceivable way—missing statement of issues, no jurisdictional statement, inaccurate facts, absent citations to the record, no appendix.

The First District could have dismissed outright. Instead, they reviewed the appeal anyway—and still affirmed, because the incomplete record triggered the Foutch presumption that the trial court acted correctly.

Translation: He lost twice. Once on procedure. Once on substance he couldn't prove was wrong.

The Dual Appealability Question: Rule 307(a)(1) and Rule 304(b)(5)

Before we dissect the strategic implications, understand the jurisdictional framework the court applied:

Lifting the stay on the body-attachment writ qualified as an interlocutory order appealable under Illinois Supreme Court Rule 307(a)(1). The court treated writ and stay issues as functionally injunctive—consistent with established precedent on orders affecting liberty interests.

The contempt commitment itself was appealable under Rule 304(b)(5) because it imposed a custodial sanction. When someone faces jail time until they purge, that's a final, appealable order regardless of the underlying case's status.

This matters because your opposition may try to argue these orders aren't immediately appealable. They are. But appealability without a proper record is a hollow victory—as Ziskind learned the hard way.

The Foutch Doctrine: Your Best Friend or Worst Enemy

The Foutch presumption operates with brutal simplicity: if the appellant fails to provide a sufficient record, the reviewing court presumes the trial court's judgment had a sufficient factual basis and conformed to the law.

Every doubt arising from the incomplete record resolves against the appellant.

This isn't a technicality. It's a death sentence for appeals built on grievance rather than documentation.

For the practitioner representing the party who obtained the contempt order, Foutch is your insurance policy. For the practitioner defending against contempt, Foutch is the reason you order transcripts the moment the court reporter finishes typing.

Rule 341 Compliance: The Non-Negotiable Checklist

The Ziskind court catalogued the briefing deficiencies with the precision of a forensic accountant reviewing fraudulent books. Here's what was missing—and what you must include in every appellate brief:


Statement of Issues Presented for Review: Not optional. Not something you can fold into your argument section.
Jurisdictional Statement: Explain why the appellate court has authority to hear this appeal, citing the applicable Supreme Court Rule.
Statement of Facts: Accurate. Cited to the record. Not argumentative spin masquerading as neutral recitation.
Argument with Citations: Every legal proposition requires authority. Every factual assertion requires a record citation.
Appendix: Include the judgment appealed from and any other materials required by Rule 342.


The court emphasized that pro se status does not excuse noncompliance. Litigants who represent themselves are held to identical standards as licensed attorneys. This principle protects your client when the opposing party decides to "go it alone" on appeal—their procedural failures become your tactical advantage.

Record Preservation: The Battle Is Won or Lost at Trial

The appellate outcome in Ziskind was determined months before any brief was filed. It was determined in the trial court, when the appellant failed to create the evidentiary foundation necessary for meaningful review.

When litigating contempt, body-attachment, or purge issues, demand that the trial court enter detailed findings on:


Willfulness: The contemnor's intentional violation of a court order, not mere inability to comply.
Purge amounts: Specific dollar figures tied to the underlying obligation.
Ability to pay: Whether the contemnor has present ability to comply or has credibly claimed inability.
Alternatives considered: What lesser sanctions were evaluated and rejected.


These findings aren't just good practice—they're appellate armor. When the record reflects thorough judicial analysis, reviewing courts defer. When the record is silent, you're gambling on which side bears the burden of the missing evidence.

The Pro Se Opponent: Strategic Considerations

Ziskind represented himself on appeal. This is increasingly common in high-conflict family law matters where one party has exhausted resources—or believes they can outsmart the system.

Do not underestimate pro se opponents. Do not overestimate them either.

The Ziskind court could have dismissed the appeal for Rule 341 violations but chose to review on the merits anyway. Courts sometimes extend procedural grace to unrepresented parties. Your strategy must account for this possibility while documenting every deficiency for the record.

When opposing a pro se appeal:


File a motion to dismiss for briefing deficiencies, preserving the issue even if the court declines to grant it.
Identify every missing record component in your appellee's brief.
Invoke Foutch explicitly and repeatedly.
Never assume the court will do your work for you.


The Cyber-Law Intersection: Discovery Leverage You're Missing

Here's where most family law practitioners leave money on the table.

Contempt proceedings often arise from financial disclosure failures, hidden asset allegations, or support arrearages. In the modern economy, the evidence trail is digital—and your opponent's cyber hygiene (or lack thereof) is discoverable.

When a party claims inability to pay while maintaining cryptocurrency wallets, offshore account access, or undisclosed business interests visible through metadata analysis, you have leverage that transcends traditional discovery.

Subpoena the digital breadcrumbs. Retain forensic experts who can testify to data integrity. Document the chain of custody for electronic evidence with the same rigor you'd apply to physical documents.

The party who controls the digital narrative controls the contempt hearing. The party who documents that control owns the appellate record.

Motions to Vacate: Timing Is Everything

The Ziskind opinion references challenges to default judgments and service issues. These are preservation landmines.

Motions to vacate default judgments must be timely filed and supported in the trial record. If your client was improperly served or denied due process, the time to raise that issue is immediately—not on appeal after the contempt order has been entered and the body-attachment writ executed.

Similarly, if you're defending against a motion to vacate, ensure the record reflects proper service, adequate notice, and procedural regularity at every stage. The Foutch presumption helps you only if the record doesn't affirmatively contradict the trial court's findings.

The Takeaway: Appellate Success Is Built in the Trial Court

In re Marriage of Ziskind isn't remarkable for its legal holdings—the appealability analysis and Foutch application are well-established. It's remarkable for what it reveals about appellate failure modes.

The appellant lost because he didn't build a record. He lost because he didn't follow the rules. He lost because he assumed righteous indignation would substitute for procedural competence.

Your clients cannot afford those assumptions.

Every contempt hearing, every enforcement proceeding, every contested motion must be approached with appellate preservation in mind. Order the transcripts. Make the record. Comply with the rules.

Because when your opponent fails to do these things, you win on appeal before oral argument begins.



If you're facing contempt proceedings, enforcement actions, or complex appellate issues in an Illinois divorce or post-decree matter, the time to build your defense is now—not after the body-attachment writ issues.

Book a consultation with our team today. Your opposition is already making mistakes. Let's make sure they pay for them.

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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