Aug 01, 2014

IICLE Family Law Flash Points - August 2014

1. Petition for contribution of attorneys’ fees filed by former counsel allowed to proceed against opposing party after entry of final judgment. Attorneys for the litigants in a dissolution proceeding are considered parties in interest in an action for attorneys’ fees to the extent that the fees properly belong to the attorney. Although Section 503(j) of the IMDMA provides that before judgment is entered, a party’s petition for contribution shall be heard and decided, the Appellate Court has held that this timing provision, while mandatory, is not a jurisdictional prerequisite and may be waived. Husband’s former counsel filed a petition for contribution against the wife the day after his former client filed for bankruptcy. The trial court dismissed counsel’s petition for contribution and counsel filed a Motion for Reconsideration. Before that motion was heard the court entered a judgment for legal separation. Thereafter, the court vacated the dismissal of husband’s counsel’s Petition for Contribution and wife filed a motion for summary judgment arguing that the court was now without subject matter jurisdiction to consider the contribution petition after judgment. The court granted the motion for summary judgment but the Appellate Court reversed and remanded holding the trial court did have subject matter jurisdiction to hear the contribution petition because nothing in the plain language of 503(j) states that once a judgment is entered the court loses jurisdiction to consider a pending contribution petition. Furthermore, the parties’ legal separation agreement’s allocation of attorneys’ fees was not binding on former counsel. The Court also noted that an interesting issue remained before the trial court on remand - what effect the bankruptcy discharge has on the contribution petition. In re the Marriage of Cozzii-DiGiovanni and DiGiovanni, 2014 IL App (1st) 130109.2. Illinois can enforce, but not modify, a support order when the obligor, obligee, and minor children no longer reside in Illinois. Illinois entered the original child support order as well a subsequent order providing the mother would contribute certain percentages to the child’s health insurance, uninsured medical expenses, and travel expenses for the child to see the father during visitation. Mother and the child moved to Tennessee and father subsequently relocated to Ohio. After father moved, he filed (in Illinois) a motion to reduce support due to loss of employment and a petition for rule to show cause against mother for her failure to contribute to the medical and travel expenses. The trial court sua sponte dismissed the pleadings after learning that no party remained in Illinois and ruled the proceedings should proceed in Tennessee. The Appellate Court reversed the order dismissing the petition for rule to show cause because under UIFSA Illinois maintains continuing exclusive jurisdiction to enforce its own orders. However, Illinois does not have jurisdiction to modify a support order when neither the parties nor the child remain in the state. Collins v. Department of Health and Family Services, 2014 IL App (2d) 130536.3. Factual disputes resolved by the trial court not an abuse of discretion on appeal. The appellant husband did not meet his burden of showing that the trial court abused its discretion when it divided the parties’ property, allocated the debt, and set child support. The appellate courts give great deference to the trial courts in dissolution of marriage proceedings because of the trial court’s familiarity with the spouses, their counsel, and their understanding of the evidence in the entire proceeding. The trial court did not abuse its discretion when it: (1) awarded the marital residence to husband but also allocated him the entire home equity line of credit even though wife had used more funds from the line of credit; (2) equally divided the retirement account subject to equal advances taken by both parties; (3) placed its own value on the couple’s daycare business by multiplying wife’s salary times 3 which was the number of years the business was deemed reasonably viable and then subtracting rent and damages when neither party presented any evidence relating to the Fair Market Value of the business; and (4) setting child support at guidelines on husband’s net monthly income of $5,219 per month. In re the Marriage of Abu-Hashim, 2014 IL App (1st) 122997.4. Tort Immunity Act grants local public entities immunity from the penalties prescribed by the Withholding Act. The Second District has held that the Conservation District, which is a public entity, is immune from the penalties for failing to properly withhold child support payments from employees’ paychecks under the Tort Immunity Act. In this case, the Conservation District failed to properly withhold five (5) different payments in two and a half years which amounted to 4,077 violations and over $400,000 in penalties. The trial court capped the penalty at $10,000 for each violation and the Conservation District appealed. The Appellate Court held that the purpose of the Tort Immunity Act was to prevent public funds from being diverted from their intended purpose of running local governments to the payment of damages. Because the Court held that the Act absolved the Conservation District of liability, the Court did not need to address whether the District knowingly failed to perform its withholding duties under section 35 of the Withholding Act. In re the Marriage of Murray, 2014 IL App (2d) 121253.5. Depletion of assets due to poor financial planning not a substantial change of circumstances to warrant an increase in maintenance. Wife claimed that a substantial change of circumstances occurred warranting an increase her maintenance after her husband retired and maintenance was reduced from $10,000 to $1,500 per month because she had to deplete her retirement account from $219,000 to $2,500 to meet her expenses. However, the evidence showed that wife received $1.7 million in property in the divorce case and that she continued to operate a business at a loss each year rather than pursuing activities that would give her a positive income. The evidence was also overwhelming that she had financially mismanaged her own funds, including failing to pay her property taxes and pouring money into a failing business. The court noted that the divorce decree had taken into account the timing of husband’s retirement and gave her an ample property settlement and $10,000 per month in maintenance for 10 years in order to prepare her for husband’s eventual retirement. In re the Marriage of Virdi, 2014 IL App (3rd) 130561.

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