May 20, 2019

Family Law Flash Points - May 2019

1.Motion to revive dissolution judgment dismissed because it was not a money judgment. The parties divorced in 2011 and each received a 50% equitable property interest in the former marital residence subject to several conditions regarding repayment of loans, obligations, and a bankruptcy case. Seven years later, wife filed a petition to revive the judgment under section 2-1602 of the Code of Civil Procedure arguing that her 50% property interest was still due and owing plus 9% accrued interest. Husband moved to dismiss which was granted by the trial court and the Appellate Court upheld. Section 2-1602 of the Code of Civil Procedure specifically requires that the petitioner plead a statement to the date and amount of the judgment in a motion to revive. The purpose of the statute is to revive a specific judgment debt owed by a judgment debtor. Because the divorce judgment did not provide a specific amount that wife was owed as her 50% property interest, it did not impose a debt on husband, and is not a money judgment. It is an allocation of property between the parties and wife could move to enforce the divorce judgment at the trial level. In re Marriage of Peck, 2019 IL App (2d) 180598.2.Partner to a civil union does not have standing to request visitation as “stepparent” under the IMDMA. The Fifth District has held on interlocutory appeal that a partner to a civil union whose partner passes away does not have standing under the IMDMA to seek visitation of a minor child as a stepparent. The Court acknowledged that the Civil Union Act provides persons entering into civil unions with the same obligations, responsibilities, protections, and benefits afforded to those persons entering into marriage. However, the plain language of Section 600(l) of the IMDMA defines a stepparent as someone who is or was married to the parent immediately prior to his or her death – thereby giving him or her standing to seek parenting time and parental responsibilities. The Court recognized a natural born parent’s superior right to the care, custody and control of his or her child and stated that the legislature’s omission of any reference to partners joined in a civil union in the definition of stepparents evidenced its intent to exclude civil union partners from the category of nonparents who have standing to seek visitation. Sharpe v. Westmoreland, 2019 IL App (5th) 170321.3.Indirect civil contempt finding reversed. The parties’ divorce judgment allocated wife a condominium and provided that she was not allowed to lease out the property until she had refinanced it. In violation of the judgment, wife leased out of the condo and husband brought a petition for rule to show cause. The trial court found the wife in indirect civil contempt and ordered her to turn over the rental proceeds of $5,300 to the clerk of court in order to purge her contempt. The court later amended its judgment and provided that wife should turn over half ($2,650) to the husband. Wife appealed and the Appellate Court reversed holding that wife was in indirect criminal contempt of court because the purge was actually a punishment for wife’s violation of the judgment, not an inducement to future compliance. Because wife had not received the proper notice that she could be subject to criminal penalties, the order was reversed. In re Marriage of Pavlovich, 2019 IL App (1st) 172859.4.Breach of contract claim for damages in the form of attorneys’ fees under a postmarital agreement dismissed. Husband brought a separate breach of contract claim apart from a pending dissolution of marriage claim under the theory that wife had breached the agreement by refusing to perform her obligations under it. His claimed damages were the fees he was forced to spend in order to enforce the agreement when wife had challenged the validity and enforceability of the agreement (in the divorce case) and lost. The agreement provided that husband was responsible for his own attorneys’ fees in the divorce case. Wife brought a motion to dismiss the breach of contract claim which was granted and which husband subsequently appealed. The Appellate Court affirmed and held husband failed to state a claim upon which relief could be granted. Contrary to husband’s argument, the expense of defending wife’s challenge to the postmarital agreement was a legal expense connected with the dissolution action. While both actions rely on the same agreement to form the basis of the actions, dissolution proceedings are designed to dispose of all matters connected with the parties’ marriage. Davis v. Davis, 2019 IL App (3d) 170744.5.Wife entitled to permanent maintenance at time of review. Husband brought a petition to modify or terminate maintenance when he was age 60 due to retirement. Wife brought a competing petition to increase or extend maintenance. The marriage had been approximately 30 years. The trial court increased husband’s obligation from $225 per week to $3,767 per month on a permanent basis. The Appellate Court affirmed. At the time of the hearing wife’s assets were valued at $530,000 and she had a sporadic work history of minimum wage jobs. Husband had assets valued at $1.9 million and he had also inherited over $800,000 from his mother and uncle. Both the trial and Appellate courts gave weight to the fact that husband, while he was withdrawing from his savings to pay expenses, had remarried and was paying for his new wife’s expenses, including upkeep on her prior home, and college tuition for her children. The evidence showed that without maintenance, the first wife would just meet her stated expenses, which did not include health insurance as she was uninsured at the time of the hearing. Husband’s assets had increased substantially since the entry of judgment and therefore, he had the ability to pay a permanent maintenance award to his first wife, whose income earning capacity was the same as it was during the marriage. In re Marriage of Kuper, 2019 IL App (3d) 180094.6.Amended maintenance guidelines should not have been used to calculate modified maintenance amount. The Third District has followed the Fifth District’s ruling in In re Marriage of Hams, 2018 IL App (5th) 160472 which held that the maintenance guidelines do not apply to proceedings to modify preexisting maintenance orders. The Court reasoned that had the legislature meant for the maintenance formula under Section 504(b-1) to be used to calculate modified maintenance amounts, it would have referred to it in Section 510(a-5). The Court also upheld the trial court’s calculation of husband’s monthly income as $14,114.15 which included his pension payments and the amounts he spent each month on three homes, entertainment, dining out, hobbies, gifts, donations, and his stepchildren’s college education payments. The trial court expressly stated that it did not adopt wife’s approach of simply imputing all withdrawals from husband’s savings and investment accounts as income. In re Marriage of Kuper, 2019 IL App (3d) 180094.

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