In re Marriage of Calcagno
Court: Illinois Appellate Court | Published: 12/8/2025
Marriage
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<h3>CASE METADATA</h3>
- **Case Name:** *In re Marriage of Calcagno*, 2025 IL App (3d) 250299
- **Court and Division:** Illinois Appellate Court, Third District (Justices ...
Full Case Summary
CASE METADATA
- **Case Name:** *In re Marriage of Calcagno*, 2025 IL App (3d) 250299 - **Court and Division:** Illinois Appellate Court, Third District (Justices Anderson, Hettel, and Bertani) - **Opinion Filed:** December 5, 2025 - **Trial Court:** Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois (Case No. 22-DC-625) - **Trial Judge:** Hon. Neal W. Cerne - **Standard of Review:** **Manifest Weight of the Evidence** for exclusive possession orders under § 501(c-2); jurisdictional questions reviewed de novo - **Procedural Posture:** Interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) from trial court order granting temporary exclusive possession of marital residence to Petitioner-Appellee Michael Calcagno; motion to dismiss for lack of appellate jurisdiction denied; trial court's order **AFFIRMED** - **Rule 23 Status:** Published opinion with full precedential valueHOLDINGS
**1. Appellate Jurisdiction (Rule 307(a)(1)):** Orders granting temporary exclusive possession of a marital residence under **750 ILCS 5/501(c-2)** constitute **injunctive orders** subject to interlocutory appeal under **Illinois Supreme Court Rule 307(a)(1)**. Changes in statutory language from former Section 701 to current Section 501(c-2) are "inconsequential" for appealability because the Illinois Supreme Court—not the legislature—determines appellate jurisdiction. *Ill. Const. 1970, art. VI, § 6*; *In re Marriage of Lentz*, 79 Ill. 2d 400, 406-07 (1980). **2. Hearsay Corroboration Statutes Inapplicable:** **735 ILCS 5/8-2601** and **750 ILCS 5/606.5(c)**, which require corroboration of minors' hearsay statements, do **not apply** to temporary exclusive possession proceedings under § 501(c-2)—they apply only to allegations of abuse and neglect. The § 501(c-2) standard (whether "physical or mental well-being... is jeopardized") is distinct from abuse/neglect allegations. **3. Section 604.10(b) Report Admissibility:** When a party objects to admission of a court-appointed expert's report under **750 ILCS 5/604.10(b)**, the **objecting party** bears the burden of compelling the expert's appearance via **Illinois Supreme Court Rule 237(a)** subpoena. The party who retained or called the expert is not obligated to produce them. Even if formal admission is error, the trial court may still "review" and "consider the advice" of its appointed professional under the statute. (Confidence: 0.9) **4. Exclusive Possession Standard Affirmed:** The trial court's grant of exclusive possession was not against the manifest weight of the evidence where: (a) cumulative evidence showed children's mental well-being was jeopardized by continued cohabitation; (b) emotional/mental harm—not just physical abuse—satisfies § 501(c-2); and (c) GAL testimony, party testimony, and party admissions supported the finding even without the contested expert report.DICTA & NON-BINDING GUIDANCE
**Emotional Harm Equivalence:** The court stated that emotional and mental harm "can be just as damaging, if not more so" than physical abuse. This persuasive language supports future arguments that physical violence is not required for exclusive possession. (Confidence: 0.75—advisory rather than essential to holding) **Cumulative Harm Standard:** The trial court's articulation that emotional harm need not stem from a "single incident" but can arise from "accumulation of stress over an extended period" provides guidance for proving jeopardy without a precipitating event. (Confidence: 0.8) **GAL Testimony Limitations:** GAL testimony on mental health conclusions may be insufficient without qualified psychological expert support; however, GAL observations about household dynamics, conflict, and children's behavior remain valuable. The trial court distinguished between GAL impressions and expert mental health opinions. **Relative Bond Consideration:** The court noted separation would be "less traumatic for the children given their closer relationship with Michael," suggesting courts may consider relative parent-child bond strength when determining which parent should vacate.KEY LEGAL REASONING
**Statutory Framework:** - **750 ILCS 5/501(c-2) (West 2022):** Requires (1) verified complaint/petition seeking temporary eviction; (2) physical or mental well-being of spouse or children jeopardized by joint occupancy; (3) court must "balance hardships to the parties" - **750 ILCS 5/604.10(b):** Court may seek professional advice; writing "may be admitted into evidence without testimony from its author, unless a party objects"; professional "shall testify as the court's witness and be subject to cross-examination" - **Illinois Supreme Court Rule 307(a)(1):** Interlocutory appeals from injunctive orders **Key Precedents:** - *In re Marriage of Engst*, 2014 IL App (4th) 131078, ¶¶ 16, 29—exclusive possession orders are injunctive; fact-specific inquiry - *In re Marriage of Levinson*, 2012 IL App (1st) 112567, ¶ 33—manifest weight standard for § 501(c-2) review - *In re Marriage of Bates*, 212 Ill. 2d 489, 516 (2004)—view evidence favorably to nonmovant; accept reasonable inferences - *In re Marriage of Karonis*, 296 Ill. App. 3d 86, 88 (1998)—judgment against manifest weight only when opposite conclusion apparent or findings unreasonable - *In re Marriage of Dunseth*, 260 Ill. App. 3d 816, 827-28 (1994)—general rule against interlocutory appeals of temporary orders (exclusive possession is exception) **Injunctive Character Analysis:** Despite statutory language changes, exclusive possession orders retain their injunctive character because they: (1) change the status quo; (2) deprive a property owner of rights of possession, use, and enjoyment of their own home. **Harmless Error:** Even assuming error in admitting the § 604.10(b) report without expert testimony, the error was harmless because the trial court could still "review" and "consider" the expert's advice, and independent evidence (GAL testimony, party testimony, party admissions) supported the ruling.PRACTICE IMPACT
**Appellate Strategy:** - Exclusive possession orders **are immediately appealable** under Rule 307(a)(1)—do not wait for final judgment - When opposing dismissal motions, cite *Calcagno* for the proposition that the Supreme Court controls appealability, not statutory amendments - Manifest weight standard is highly deferential; focus appellate arguments on showing findings were "unreasonable, arbitrary, or not based on evidence" **Trial Practice for Movants:** - **Cumulative evidence approach:** Document patterns of ongoing stress, conflict, and tension—no single traumatic incident required - **Child-focused framing:** Emphasize children cannot remove themselves from harmful environments - **Multiple evidence sources:** Build record with GAL testimony, party testimony, documentary evidence (videos, photos, messages), and expert reports to survive evidentiary challenges - **Retain qualified mental health experts** if seeking to prove psychological harm—GAL testimony alone may be insufficient for mental health conclusions **Trial Practice for Respondents:** - **Object to GAL mental health opinions** if GAL lacks psychological credentials - **Object to § 604.10(b) reports AND subpoena the expert**—mere objection without Rule 237(a) subpoena waives cross-examination rights - Emphasize absence of physical violence and documented abuse - Challenge characterization of routine co-parenting disputes as "endangerment" - Propose concrete remedial measures (therapy, parenting classes) to counter "no means to correct" findings **Evidentiary Objections:** - Distinguish court's **review** of GAL/expert reports under § 604.10(b) from formal **admission** as evidence - Preserve hearsay objections but recognize corroboration statutes (§ 8-2601, § 606.5(c)) do not apply to § 501(c-2) proceedings **Suggested Motion Language:** > "Pursuant to 750 ILCS 5/501(c-2), the physical/mental well-being of the minor children is jeopardized by continued joint occupancy. The children have endured cumulative emotional harm from [X years] of parental conflict. Unlike the parties, the children cannot remove themselves from this environment. The balance of hardships favors exclusive possession to [Petitioner] because [comparative analysis]. See *In re Marriage of Calcagno*, 2025 IL App (3d) 250299."Ask AI About This Case
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