May 15, 2017

Family Law Flash Points May 2017

Arbitration Award in Dissolution of Marriage Case UpheldInIn re Marriage of Haleas,2017 IL App (2d) 160799, parties to a dissolution of marriage case agreed to resolve their property and maintenance issues through binding arbitration and entered into a mediation/arbitration agreement pursuant to the Illinois Uniform Arbitration Act, 710 ILCS 5/1,et seq.The agreement stated that “[i]n lieu of trial, the parties agreed to engage in binding arbitration, which is expressly subject to the [Arbitration Act].” 2017 IL App (2d) 160799 at ¶5. The trial court ultimately confirmed the arbitration ruling and entered judgment over the wife’s objection. The Second District upheld the trial court’s confirmation of the award after the wife appealed the ruling that the husband’s business was nonmarital as well as the maintenance award she received pursuant to §504 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101,et seq.The Arbitration Act provides for very limited judicial review, and there is a presumption that the arbitrator did not exceed his or her authority or violate public policy. A court can overturn an arbitrator only if there is a gross mistake of fact or law, and such mistake must be on the face of the award itself. The court also noted that, when parties agree to arbitration, they have agreed to have their dispute settled by an arbitrator and, therefore, it is the arbitrator’s opinion that they agree to accept. Sections 12 and 13 of the Arbitration Act provide the basis for a court to vacate or modify an arbitration award, and because the wife presented no valid grounds under those sections of the Act, the trial court’s confirmation of the arbitration ruling was upheld. The ruling did not affect child custody or child support.Ex-Husband Not Entitled to Return of Funds Garnished from His Paycheck in Order To Redistribute Monies Between Two Different Child Support ObligationsIn re Marriage of Schomburg,2016 IL App (3d) 160420, 72 N.E.3d 401, was a highly contested postjudgment proceeding in which the ex-husband owed significant sums in unpaid child support and maintenance and property settlement obligations to his first ex-wife, who obtained a child support lien with the assistance of the Illinois Department of Healthcare and Family Services. When the ex-husband received a severance check from his employer, a 50-percent garnishment ($11,065.06) to his first ex-wife attached to his net earnings, and a $90 garnishment attached to his second ex-wife for a second child support obligation. On March 4, 2016, the ex-husband received a bonus check from his employer that had a 50-percent garnishment to the first ex-wife in the amount of $2,518.32 and no payment to his second ex-wife. The second ex-wife obtained a court order on March 4, 2016, for a portion of his severance, and the order provided that payment was not due until June 4, 2016. The ex-husband argued on appeal that the inequitable distribution of his earnings in favor of his first ex-wife was improper and that the garnishments should have been equally distributed between the two child support orders. The appellate court rejected his argument, noting that when the employer paid out the garnishment on the severance and the bonus, there was no indication that there were any competing claims on those earnings. Therefore, there was no legal or factual justification to reapportion the garnished earnings. The court also discussed the facts that each unpaid support obligation is to be treated as an individual judgment, that the garnishment complied with the Consumer Credit Protection Act, and that past-due child support is a vested right of the designated recipient and is not subject to reduction.Entry of Bifurcated Judgment Improper When Guardian for Wife Did Not Provide Affirmative Consent to Its EntryInIn re Marriage of Faletti,2017 IL App (3d) 160323, the appellate court reversed a trial court’s entry of bifurcated judgment after a review of the record established that the wife’s counsel had not consented to the entry of a bifurcated judgment because they had represented to the court that, while they did not object, they were having a guardian appointed for the wife and it would be the job of the guardian to consent on behalf of the wife. Both the husband and wife were elderly and living in separate care facilities. The trial court had conducted a hearing on grounds for dissolution, and the husband’s guardian testified as to grounds for the dissolution several months before the entry of judgment. The case was continued numerous times, and eventually the wife’s counsel stated that the wife had a sudden decline in cognitive functioning, that they intended to proceed with guardianship proceedings, and that it would be the guardian’s decision to consent to the entry of judgment. The trial court received the judgment, which it entered on a date that the wife’s counsel was not present, but the same day that the wife’s guardian was appointed. The wife brought a motion to vacate the judgment, but the trial court’s oral ruling found the wife’s children were attempting to delay the entry of judgment in order to get an advantage with respect to their mother’s estate and denied the motion. The appellate court held that the entry of judgment was improper as the wife’s guardian was the proper person to give consent to its entry and that any representations by the wife’s counsel that such a person would agree before he or she was appointed were not binding.

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