Apr 01, 2017

IICLE Family Law Flash Points - April 2017

1. The Illinois Supreme Court reverses Appellate Court, affirms trial court’s fee contribution award. After a post-judgment hearing, the trial court reduced ex-husband’s maintenance obligation from $35,000 per month to $27,500 per month and awarded ex-wife $125,000 in contribution to fees. The court also awarded her $35,000 in prospective attorneys’ fees to defend the appeal that ex-husband filed on both issues. The Appellate court reversed the trial court’s contribution award by vacating it on the basis that there was no evidence in the record that ex-wife was unable to pay her own fees. The Supreme Court reversed and held the trial court did not abuse its discretion when awarding ex-wife $160,000 in attorneys’ fees. The critical component of the decision was the Court’s analysis of its prior case, In re Marriage of Schneider and the “inability to pay” standard. The various Districts in Illinois had been split on their interpretation of whether Schneider validly interpreted section 508(a) of the IMDMA. In this decision, the Supreme Court did not overrule Schneider, but held that when determining fee contribution, the trial court “must consider the financial resources of the parties.” The Court suggested that the Schneider holding is a gloss to be applied to this analysis, to the extent that “[t]he inability to pay standard was never intended to limit awards of attorney fees to those situations in which a party could show a $0 bank balance.” The Court concluded a party is unable to pay if, after consideration of all the relevant statutory factors requiring the party to pay the entirety of the fees would undermine his or her financial stability. In re the Marriage of Heroy, 2017 IL 120205.2. Appellate court lacked jurisdiction to review temporary child support and maintenance orders. Husband sought leave to appeal pursuant to SCR 306 on an interlocutory basis the trial court’s temporary maintenance and child support orders. The Court granted the petition for leave to appeal and took wife’s motion to dismiss with the case. Ultimately, the Court concluded that temporary support orders did not fall within the purview of “interlocutory order affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors” as provided for in SCR 306. The Court rejected husband’s argument that the word “care” could be interpreted to include support orders and held that “care and custody” related only to order involving the custodial placement of the minor children. In re the Marriage of Dougherty, 2017 IL App (1st) 161893.3. Immediate appeal of a turnover order pursuant to a garnishment proceeding incident to an interim fee award improper. In a heavily litigated matter, the Appellate Court dismissed husband’s appeal of a turnover order which ordered various financial institutions to turnover funds to wife to enforce an interim fee award in the amount of $230,000. Husband had refused to comply with the original fee order and requested, and was denied, Rule 304(a) language to immediately appeal the interim fee award. The Appellate Court agreed with the trial court’s decision finding that there was no “friendly contempt” component to husband’s potential appeal because there was a not a good faith effort to secure an interpretation of an issue without direct precedent – rather, he simply disagreed with the ruling. Wife subsequently had to file for a nonwage garnishment in order to enforce the interim fee order and husband filed a motion to quash the garnishment which was denied and resulted in the turnover order. Husband argued on appeal that Rule 304(b)(4), which permits interlocutory appeals with respect to final judgments in citation to discover assets proceedings, should be extended to garnishment proceedings. He also argued that if an interim fee award was enforceable through garnishment it should also be immediately appealable. The Second District wholly disagreed and held that despite their enforceability, interim orders in a divorce case, such as temporary support orders or temporary attorneys’ fees orders are not immediately appealable. The breadth of extensive case law and statutory authority clearly provides that all issues in a divorce case are to be appealed only once final judgment has been entered. In re the Marriage of Arjmand, 2017 IL App (2d) 160631.

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