Family Law Flash Points - March 2020

1. Second District upholds the survival of interim fees awarded but not paid prior to the entry of a voluntary dismissal order.
Husband and wife brought a joint motion to voluntarily dismiss their respective petition and counter-petition on file. At the hearing on the motion for voluntary dismissal, the court granted the motion but entered judgment against the husband in favor of wife’s former counsel in the amount of $7,500, derived from an earlier interim fee award entered against husband which had not been paid. Husband appealed, and the Second District upheld the ruling. The court, relying on the abuse of discretion standard, noted that the trial court’s rationale was reasonable in that the husband “should not be allowed to escape liability for a previously established obligation through such a procedural maneuver.” Additionally, the interim award was converted to a judgment prior to the case's dismissal, negating the argument that the interim fee order was a temporary order that expired. Since the divorce case was ultimately dismissed, wife’s former counsel would now have to rely on other collections avenues to enforce the judgment and seek an additional judgment for the balance of any unpaid fees.
Case Reference: In re Marriage of Keller, 2020 IL App (2nd) 180960.

2. Trial court’s imputation of investment income to wife for purposes of setting child support and maintenance upheld.
In calculating child support and maintenance, the trial court found that wife was awarded $1,136,535 in investments and $471,500 in cash. The court applied a 6.5% rate of return to $950,000 of those assets, considering the amount wife had to pay off certain debts. Evidence presented at trial showed the parties’ investment portfolio had a historical rate of return of 9.93%. The trial court was within its discretion to include the interest income, which was two-thirds of the historical rate of return, when calculating maintenance and child support. The court also declined to impute interest income to the husband, attributable to the $600,000 plus held in his business as retained earnings, which was also affirmed. There was no evidence that husband had manipulated his income to minimize his support obligations, as his testimony indicated that his company needed to keep large cash reserves on hand to acquire bonds for large commercial projects.
Case Reference: In re Marriage of Lugge, 2020 Il App (5th) 190046.

3. Trial court’s interim fee award did not require a specific finding that husband had the ability to pay.
In a highly contentious and heavily litigated case, the trial court ordered that a $750,000 fund be created for litigation costs, with $200,000 coming from a home equity line of credit and $550,000 to be funded by the husband. When the husband failed to pay the $550,000, the trial court entered a commitment order with a purge amount of $550,000. Husband filed a notice of appeal and for a stay, which was granted, and he then posted a $550,000 bond. The Appellate Court stated that the plain language of Section 501(c-1)(3) does not require the court to expressly set forth specific findings in an order regarding the husband’s ability to pay, and therefore rejected the argument that the order was reversible as a matter of law. The Court also noted that the trial judge was better positioned to assess the nature of the alleged discovery delays as well as the husband’s claims about his current financials. Although the husband argued that the majority of his assets were pledged and not accessible, his only evidence at the hearing was testimony from his expert regarding potential ramifications to his financial circumstances if the market declined drastically. By contrast, wife’s expert pointed to his significant borrowing power and his overall personal net worth exceeding $20 million. The Court also highlighted that the husband’s claim of inability to pay was contradicted by his posting of the $550,000 bond after incarceration. The award was not an abuse of discretion.
Case Reference: In re Marriage of Paris, 2020 IL App (1st) 18116.

4. Interim fee award in favor of non-petitioning party reversed.
In a highly contentious and heavily litigated case, the trial court created a $750,000 litigation fund due to wife’s petition for interim and expert fees and costs. It ordered that the attorneys for each party receive $200,000 and allocated fees for the experts and the Child Representative. Husband refused to deposit the required $550,000 into the fund and was subsequently held in indirect civil contempt, which he appealed. Part of the interim award included fees to husband’s own counsel in the amount of $200,000, which husband also appealed, and the Court reversed. The Court found that the relevant portions of the IMDMA do not permit an award of attorneys’ fees to a party who has not petitioned for such fees (750 ILCS 5/501(a), (c)(1); 750 ILCS 5/501(c-1)(3); 750 ILCS 5/503(j)). The Court rejected the husband’s argument that the entire order should be vacated because wife’s counsel of record in the dissolution proceeding was not the same counsel as when the order was entered. Because husband failed to cite any authority to support his claim, it was deemed forfeited. The Court also noted that wife’s former counsel’s withdrawal did not affect the validity of the court’s allocation of fees to that firm. Husband also challenged the validity of the contempt finding, which was upheld.
Case Reference: In re Marriage of Paris, 2020 IL App (1st) 18116.

5. Plenary order of protection upheld on grounds of physical abuse and harassment.
The ex-girlfriend, who sought the order of protection, testified about a specific physical altercation that resulted in the ex-boyfriend’s arrest. Although his testimony was that he was only responding to the girlfriend’s physical altercation, there was sufficient evidence that he had physically abused his girlfriend, especially given that he had been placed under arrest and held in custody for three weeks. The evidence was also sufficient to prove that he had harassed his girlfriend, despite conflicting testimony between the parties. The trial court found the girlfriend to be more credible than the boyfriend and noted that the girlfriend testified that the following actions caused her emotional distress: parking on the street outside her home and driving slowly by; placing a recording device in her home to listen to her private conversations; sending her incoherent and alarming letters; and showing up at her place of employment and confronting her.
Case Reference: Foster v. Statham, 2020 IL App (5th) 190103.