Apr 01, 2016

IICLE Family Law Flash Points - April 2016

1. Bank statements and tax returns properly admitted into evidence as admission of party-opponent. In a contentious post-judgment support modification case, the trial court admitted into evidence husband’s bank statements and corporate tax returns produced by husband in discovery on the basis that the documents were party admissions, an exception to the hearsay rule. Husband appealed arguing that the documents were hearsay. The Appellate Court affirmed citing Illinois Rule of Evidence 801(d)(2)(c) which provides a statement is not hearsay when it can be viewed as a statement by a person authorized by the party to make a statement concerning the subject. The Court also noted the extremely contentious nature of the case and husband’s systematic attempts to block wife from receiving discovery, and said that to adopt husband’s position would be to allow him to take advantage of his own noncompliance. Melamed v Melamed, 2016 IL App (1st) 141453.2. Trial court’s deviation from guideline support and accompanying findings upheld. At issue was whether the trial court erred when it ordered a child support modification from $400 per month to $5,912 per month. Ex-husband appealed the order claiming that the court did not make the appropriate findings when deviating upwards from guideline support. The Appellate Court affirmed the trial court and the noted the specific language of the IMDMA requires the trial court to determine the minimum amount of support under the guidelines; apply the guidelines unless the court finds a deviation is appropriate; if a deviation is appropriate, state the amount of support that would have been required under the guidelines; and the reason or reasons for the variance from the guidelines. The statute does not contain the word “shall” when delineating certain factors for the court to consider when deviating from guidelines, and therefore the court was not required to make specific findings relative to each factor listed in the statute when deviating. The trial court had heard testimony regarding wife’s income and the needs of the children, as well as evidence concerning husband’s access to over $2 million in an investment account where he regularly took withdrawals to support a lavish lifestyle, and testimony that husband quit his job right after wife filed her motion to increase child support. mother. Melamed v Melamed, 2016 IL App (1st) 141453.3. Trial court upheld in the establishment of a 503(g) Trust. In a contentious post-judgment child support modification hearing, the trial court ordered ex-husband to establish a 503(g) trust with $400,000. Ex-husband appealed and the Appellate Court affirmed. The evidence the trial court heard at the hearing demonstrated a need to protect the interest of the parties’ minor children. There was evidence that ex-husband was planning on leaving the United States permanently and to live his current lifestyle elsewhere, and the court concluded there was a high likelihood that he would not make the ordered support payments. The Appellate Court upheld, but modified the trial court’s order to provide for termination of the trust upon the minor child’s 21st birthday and the return of any funds in the account to the ex-husband. Melamed v Melamed, 2016 IL App (1st) 141453.4. Trial court correctly divided wife’s teacher’s pension without considering husband’s social security disability, but should have reserved maintenance until wife retired. Wife appealed the trial court’s division of property under a divorce judgment which awarded each party a one-half interest in wife’s teacher’s pension, and requested that she be awarded her pension outright or maintenance. The parties had been married 37 years, and wife’s retirement from teaching would take effect in the next two years. Husband was a pharmacist who drew social security disability. The Appellate Court held the trial court properly did not consider husband’s social security benefits when dividing the marital property, but reversed the denial of maintenance. Maintenance should have been reserved until wife’s retirement because the evidence showed that upon her retirement, she will receive $1,310 per month and be unable to meet her living expenses while husband will receive $3,414 per month from his social security and half of her pension, and will have the ability to pay maintenance. In re the Marriage of Roberts, 2016 IL App (3d) 140263.5. Trial court upheld in denying modification to parenting schedule. Mother sought a modification to the parenting schedule where father had a rotating 3-week schedule of extended weekends, two afternoons during the same weeks, and an overnight mid-week in week #3. Mother had all other parenting time. Mother sought modification to a more traditional schedule of alternating weekends. After an evidentiary hearing in which the eldest child (14) testified, the court declined to modify the schedule ruling it was not in the children’s best interests and that no substantial change had occurred since the entry of the original parenting schedule. The Appellate Court affirmed noting that the child’s testimony was almost identical to that of his mother’s and when asked why he no longer wanted to have extended time with his father his answer was because it was “unfair to his mother.” In re the Marriage of Adamson, 2016 IL App (3d) 150105.6. Illinois had emergency temporary jurisdiction of minor child under UCCJEA but Louisiana maintained exclusive continuing jurisdiction for purposes of making permanent custody modifications. Under the parties’ divorce judgment entered in Louisiana, mother was the primary domiciliary parent of the minor child and father had a visitation schedule. Mother’s job as a pipefitter caused her to move locations frequently. During one job, she left the child with father in Illinois in order to go to Texas for a job and to be with her boyfriend. While in Texas, her boyfriend was murdered while she was present in an alleged drug deal. Father sought an order of protection for himself, his wife and the child. At the hearing, mother testified that she still maintained a residence in Louisiana. An order was entered denying the order of protection, but granting a motion for temporary custody of the child to the father. The Illinois Court subsequently granted father’s petition for permanent modification of custody. Mother appealed the modification and the Appellate Court reversed holding that the Illinois court properly exercised emergency temporary jurisdiction, but it should have conferred with the Louisiana court and given father the opportunity to file a petition there for modification of custody because Louisiana maintained exclusive continuing jurisdiction over the matter since the evidence showed wife was still a resident of the state. Gorup v. Brady, 2015 IL App (5th) 150078.

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