Apr 01, 2013

IICLE Family Law Flash Points - April 2013

1. Omission of payor’s social security number rendered a Notice to Withhold invalid. After serving a Notice to Withhold child support on an obligor’s employer and not receiving any support payments, a support recipient sought a penalty against the employer for $100 per day that it failed to comply with the Notice pursuant to 750 ILCS 28/35. However, the social security number of the obligor employee was omitted from the notice, so the Appellate Court held that such omission rendered the notice invalid because it did not comport to the strict requirements of 750 ILCS 28/20(c) which state that the income withholding notice shall include the social security number of the obligor. Because the statute itself is penal in nature against the employer who fails to comply, the recipient must strictly comply with all statutory requirements.Schultz v. Performance Lighting, Inc. 2013 IL App (2d) 120405.2. Marital settlement agreement vacated for unconscionability and fraud. A Marital Settlement Agreement (MSA) entered into between a husband who had counsel and a wife who was pro se was vacated because it was deemed unconscionable and procured by fraud two years after the entry of judgment. After 29 years of marriage, wife was awarded reviewable maintenance of $2,500 per month and the payment of her medical expenses for four years while husband was awarded the marital residence and a pension worth $1.5 million. The Court also found that husband and his counsel made numerous misrepresentations of material facts at the prove-up regarding the non-marital character of the residence and the valuation of the pension in comparison to the value of marital debts. In re the Marriage of Callahan, 2013 IL App (1st) 113751.3. Oral settlement agreement read into the record on the first day of trial is valid and binding on both parties. On the day the parties were set for trial, they reached an agreement that was read into the record. They were advised of their right to proceed to a trial, but stated that they wished to enter the agreement and testified that they understood its terms and that it would be binding. After the court approved the agreement and entered judgment, and prior to the agreement being presented, husband brought a Motion to Set Aside the Settlement Agreement because he did not receive a $50,000 bonus which he anticipated at the time the oral agreement was made. On appeal, husband argued that agreement was unenforceable because the statutory provisions under which maintenance would terminate were not read into the record; that the parties implicitly agreed that the final written agreement (not the oral agreement) was the actual agreement; and that when one of the parties is dissatisfied with an oral agreement and challenges it before written judgment is entered that he is not bound by the agreement. The Appellate Court held that the omission of the statutory termination events of maintenance from the record did not change the essential terms of the agreement; that there was no evidence in the record that the parties intended that the written agreement was a condition precedent to the binding effect of the oral agreement; and that the oral agreement was binding on both parties and cannot be disregarded simply because one party has second thoughts. In re the Marriage of Haller, 2012 IL App (5th) 110478.4. Severance of joint custody and award of sole custody to father appropriate. The Appellate Court upheld a trial court’s judgment which severed the award of joint custody and awarded sole custody to father despite the fact that the 604(b) report opined that sole custody should be awarded to the mother. The evidence was replete with instances where the mother had engaged in questionable conduct, including filing a removal petition on the grounds that she had an employment opportunity out of state while failing to offer any evidence of such opportunity. She also moved as far away as possible from father without being in violation of the Joint Parenting Agreement (JPA) and among other things, cancelled her subscription to the Our Family Wizard program. The trial court found that the mother engaged in a pattern of behavior that could potentially alienate the child from her father. The court further opined that the statutory factor regarding the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent weighed heavily in the father’s favor. In re the Marriage of Debra N. and Michael S., 2013 IL App (1st) 1221455. Award of maintenance of $200 per month for two years not an abuse of discretion. At trial on a petition for dissolution of marriage, the court heard extensive evidence regarding both parties’ employment histories, earning capacities, expenses, and marital lifestyle. The court ordered wife to pay to husband $200 per month in maintenance for two years. While the husband was disabled, he was not permanently disabled and was able to be employed in some capacity. Husband admitted he was able to leave his house a few days a week to place bets at a dog track. It was uncontroverted that the wife had been the historical breadwinner during the long-term marriage. The parties had extensive debt and had filed for bankruptcy during the marriage while wife worked full-time and overtime in order to pay the family’s bills. In re the Marriage of Smith, 2012 IL App (2d) 110522.6. Court’s award of guideline child support when the parties had equal parenting time was an abuse of discretion. The parties shared equal parenting time of the minor child, and therefore the trial court had two options in determining child support: (1) apportion the percentage of support between the parties or (2) disregard statutory guidelines and consider the factors in Section 505(a)(2) and award an alternative figure. The record showed that the court did not review the 505 factors and instead just awarded 20% of the payor’s net income. The Appellate Court reversed and remanded for a proper determination of support. In re the Marriage of Smith, 2012 IL App (2d) 110522.

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