A recent opinion from the third district of the Illinois Appellate Court might make you reconsider giving your kids your old cell phones – or at least ensure that you wipe them properly.
The Court recently remanded a challenge to a divorce decree – including a $125,00 maintenance and $500/month child support award – when the ex-husband gave his child an old cell phone containing emails that he did not delete. When Molly Stinauer investigated the cell phone that Jesse gave their daughter, Molly was surprised to find old emails between Jesse and his counsel that implied Jesse may have earned significantly more income than was disclosed or imputed when calculating the maintenance and child support awards. Molly immediately filed a petition to vacate the judgment of dissolution and uniform support order. Under Illinois law, this petition, while a part of the same proceedings as the original dissolution, is not treated as a continuation – instead, Molly’s petition as treated as a new complaint. As such, Molly bears the burden to prove that the decree ought to be overturned, and she used the emails as her foundation. Jesse replied to Molly’s complaint and moved for dismissal, claiming that the emails Molly found were protected by Attorney-Client privilege. The trial court agreed with Jesse, and Molly appealed. And here is where the Appellate Court steps in.
The Court addresses two exceptions to Attorney-Client privilege: the crime/fraud exception and waiver. The crime/fraud exception to Attorney-Client privilege tells us that using your attorney to commit fraud, or a crime automatically abrogates the privilege. Wavier covers various actions by which a client may impliedly or expressly waive privilege on certain communications between themselves and their attorney.
The Court found that privilege was abrogated by the crime/fraud exception because the emails imply Jesse committed fraud when reporting his income, so the emails related to this aren’t protected. The matter was remanded to the trial court to hold an evidentiary hearing on the emails to consider if the content of the emails is sufficient to overturn the original judgement and maintenance/child support awards.
The Court also remanded the matter to the trial court to hold an evidentiary hearing to consider if Jesse waived his privilege on the emails by giving his daughter the cell phone. We’ll have to stay tuned to see what the court decides.