Oct 08, 2019

Family Law Flash Points - October 2019

1. Trial court’s holding that the ex-husband complied with court orders was reversed based on the payment history shown by the State Disbursement Unit (SDU). After hearings on multiple post-judgment issues which had been pending for several years, the trial court entered an order denying a finding of contempt based on the payment history provided by SDU. The Appellate Court reversed and held that the Petitioner had met her burden of establishing that the Respondent had failed to pay the full amount of the support which he owed. Petitioner established through court orders the amounts which Respondent was required to pay for child support, daycare expenses, and an arrearage. She also introduced the certified payment history from SDU showing that the total amount of payments the Respondent had made was less than the amount that he should have paid. Petitioner’s filings and exhibits established non-compliance which constitutes prima facie evidence of contempt. Therefore, the burden shifted to the Respondent to show why the noncompliance was not willful. At the hearing the Respondent made no argument that he did not have the inability to pay or that the failure to pay was not willful. In re the Marriage of Elliott, 2019 IL App (4th) 180628.2. Fourth District holds that pre-2016 Illinois Marriage and Dissolution of Marriage Act (IMDMA) did not apply to child support proceedings where motions were filed as early as 2014. In a lengthy and procedurally complex post-judgment child support modification matter, where multiple cross motions to modify child support were pending since 2014, the Fourth District held that the trial court did not err in applying the 2016 version of the IMDMA when it determined that no substantial change of circumstances warranted a modification of child support. The Court reasoned that Section 801(c) of the IMDMA did not apply because judgment had yet been entered on the petition for modification of child support which was pending at the time the amendments went into effect. In doing so, the Fourth District declined to follow the Second District case of In re the Marriage of Benink, 2018 IL App (2d) 170175. Under Benink’s analysis of Section 801(c), because the judgment had already been entered on child support in the parties’ judgment for dissolution of marriage, the modification proceeding would only be subject to the amended Act if it had been filed after the effective date of the amended Act. In Benink, the modification pleadings were filed in 2013 so the amended version of the IMDMA did not apply. There is now a split in authority with respect to what version of the IMDMA applies to post-judgment support modification proceedings if the petition was filed prior to January 1, 2016. In re the Marriage of Elliott, 2019 IL App (4th) 180628.3. Trial court affirmed on ruling that husband failed to show funds transferred from his parents’ trusts were in fact loans. Husband argued at trial for a declaration that funds transferred from his parents’ trusts created a valid and enforceable lien in the amount of $300,000 each against a piece of marital real estate, and that such liens were marital liabilities. However, at trial, husband could not produce evidence of loan documents. The trial court found that under the terms of his parents’ trusts, husband had the power to withdraw income and principal for any purpose, and that he had in fact withdrawn money from the trusts and put the funds into an account under his own name. The trial court further noted that the evidence did not show that the transactions were actual loans, but rather funds he was authorized under the trust documents to withdraw for his own benefit. The Appellate Court affirmed. Husband provided no evidence that he had any obligation to pay back his parents’ trusts. An attorney drafted and recorded mortgages on behalf of his parents’ trusts, but no note or other loan document was recorded contemporaneously with the mortgages. Without evidence that husband had an obligation to repay the trusts, the mortgage was not a valid encumbrance against the real estate. Therefore, husband was awarded the real estate at a value which did not include $600,000 of debt he alleged was associated with the property. In re Marriage of Slesser, 2019 Il App (2d) 180505.4. Northern District of Illinois Bankruptcy Court clarifies application of automatic bankruptcy stay. The ex-wife of a chapter 13 debtor sought to lift the automatic stay in bankruptcy court so she could seek a contribution to college expenses by her ex-husband. The bankruptcy court denied the motion as unnecessary. Section 362(b) of the bankruptcy code provides a list of exceptions to the automatic stay, which include, among many items, a modification of an order for domestic support obligations, which includes a debt in the nature of alimony, maintenance or support of such spouse, former spouse, or child of the debtor. The state court was free to modify the child support order to include college expenses while the bankruptcy was pending. There are only two important types of domestic relations proceedings which are barred by the automatic stay: (1) the division of marital property that is property of the estate; and (2) proceedings to collect on a domestic support obligation from property of the estate. This informative bankruptcy opinion can be read in full here.5. Illinois Supreme Court grants PLA in Sharpe v. Westmoreland. In May, we reported on the case of Sharpe v. Westmoreland, 2019 IL App (5th) 170321, wherein the Fifth District held on an 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 step-parent. The Court recognized a natural born parent’s superior right to the care, custody and control of his or her child and 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. The Illinois Supreme Court granted the PLA of the civil union partner. The Appellate Court opinion can be found here.

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