Dec 01, 2018

IICLE Family Law Flash Points - December 2018

1. New tax law eliminates maintenance deduction beginning in January 2019. Beginning January 1, 2019, maintenance payments are no longer deductible by the payor and taxable to the payee. This change in the tax law does not apply to judgments entered before January 1, 2019. In response to the federal tax law change, the Illinois legislature is amending the maintenance statute to account for the elimination of the maintenance deduction under the new tax code for any divorce judgments entered on or after January 1, 2019. The new formula is: 33 1/3% of the payor’s annual net income less 25% of the recipient’s annual net income, not to exceed 40% of the parties’ combined annual net income. The amendments will take effect January 1, 2019. A complete copy of the federal tax legislation (H.R.1) and the Illinois amendments can be found here:2. Amended IMDMA did not apply to a child support modification proceeding which was filed and pending prior to January 1, 2016. In a procedurally complex post-judgment proceeding, both the ex-wife and ex-husband had filed competing motions to modify child support. Husband sought to decrease his obligation and wife sought to increase the obligation. Both petitions had been filed in 2013 but did not go to hearing until 2016. Pursuant to 750 ILCS 5/801(c), the amended IMDMA only applies to modification proceedings commenced after January 1, 2016. Because the petitions were pending prior to January 1, 2016, the amended statute did not apply. In re the Marriage of Benink, 2018 IL App (2d) 170175.3. Absence of precise Rule 304(a) language fatal to obtaining appellate jurisdiction. Husband appealed a post-judgment denial of his motion to reconsider the denial of a motion to abate child support payments. He had filed a motion to abate support in response to the Illinois Department of Healthcare and Family Services (IHFS) obtaining an order finding him in indirect civil contempt for failure to pay support. The contempt was stayed. The trial court’s order relating to the contempt was not final and appealable. First, a contempt order is not final and appealable until the party in contempt has been sanctioned or committed. Second, the order which stated, “[t]his is a final and appealable order” did not contain sufficient language to comply with SCR 304(a). The Court relied on In re the Marriage of Teymour, 2017 IL App (1st) 161091 wherein it recently aligned with the Second and Fourth Districts to adhere to Rule 304(a)’s explicit mandate that a final order disposing of one of several claims may not be appealed without an express finding that “there is no just cause for delay.” In re the Marriage of Sanchez, 2018 IL App (1st) 171075.4. Strict adherence to filing deadlines required with electronic filing. Although not a family law case, the Second District has opined on the issue of electronic filing deadlines. Plaintiff in a personal injury suit attempted to electronically file a motion to reconsider shortly before midnight the day it was due, but the motion was not timely uploaded causing it to be file-stamped on 12:03 a.m. the next day. In its opinion, the Court noted that the plaintiff conceded that the problem was not predicated upon a technical problem in the e-filing system, but rather user error and problems experienced by the filer. The Court also noted that while its opinion may seem harsh, as the plaintiff lost both his chance to have a motion to reconsider addressed, and a potential appeal, that he had 30 days within he could have filed the motion to reconsider, he could have obtained an extension within those 30 days, or he could have requested from the Appellate Court for leave to file a late notice of appeal under ILSCR 303(d), but he did not. Peraino v. County of Winnebago, 2018 IL App (2d) 170368.5. Nonbiological parent in a same sex marriage held to be the legal parent of a child conceived through artificial insemination. In a dissolution of marriage proceeding of a same sex couple, the trial court ordered that the nonbiological mother of a minor child conceived through artificial insemination as the child’s legal parent. The Appellate Court held that the evidence at trial showed that during the marriage the parties agreed to conceive a child together through artificial insemination, enrolled in the artificial insemination program together, jointly selected a sperm donor, jointly paid for the fertility treatments, and that both parties were identified on the child’s birth certificate as “co-parents.” There was also evidence that the nonbiological mother actively participated in co-parenting after the birth of the child. Thus, a parent-child relationship existed. The Court also noted that a best interest finding is not required for the determination of a parent-child relationship, but rather is required when the trial court determines appropriate parenting time and the allocation of decision-making responsibilities. In re the Marriage of Dee J. and Ashlie J. 2018 IL App (2d) 170532.6. Assets transferred to a series of irrevocable trusts during the marriage held to be neither marital nor nonmarital assets. Husband prevailed in the trial court on a motion for summary judgment wherein he argued dozens of irrevocable trusts created during the marriage were neither marital or nonmarital property. Wife claimed that while the marriage was undergoing a breakdown, husband transferred millions of dollars into a series of irrevocable trusts in an effort to defeat her claims to marital property. Relying on In re Marriage of Romano, 2012 IL App (2d) 091339 and Johnson v. LaGrange State Bank, 73 Ill.2d 342 (1978), the Appellate Court upheld the granting of the motion for summary judgment. The estate plan was not a sham, colorable, illusory or tantamount to fraud, which is the standard under the two aforementioned cases. The Court noted that it was not precluding the wife from arguing at trial that by creating the trusts, husband had committed dissipation or fraud against her. In re Marriage of Larocque, 2018 IL App (2d) 160973.7. Petitioner in an Order of Protection case properly allowed to testify to facts not contained in the body of the petition. At a hearing on a plenary order of protection, the petitioner testified to two specific fact patterns that did not appear in her underlying petition: (1) that the respondent had pushed their son into a wall; and (2) that the respondent hit their son in the head with a cell phone. The trial court issued a one year order of protection and the respondent appealed on the grounds that the petitioner should not have been able to testify as to acts not contained in her underlying petition. The Appellate Court affirmed. Section 214 of the Domestic Violence Act provides that in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern and consequences of the respondent’s past abuse of petitioner or any family or household member as well as the danger that any minor child will be abuse. Therefore, not only was the trial court allowed to consider the evidence that the respondent had recently pushed the child and hit him in the head with a cell phone, it was required to do so. Sandberg v. Brian B., 2018 IL App (2d) 180082.8. Net proceeds from a personal injury settlement attributable to damages for pain and suffering and disability is income for child support purposes. The Fourth District joined with the Fifth District case of In re the Marriage of Fortner, 2016 IL App (5th) 150246, in holding that pain, suffering and disability damages are income for child support purposes. This holding is directly contrary to the Second District’s holding in Villanueva v. O’Gara, 282 Ill.App.3d 147 (1996). The Court held that Vallanueva failed to consider the effect damages awarded for pain and suffering and disability had on the receiving parent that was a positive impact on the parent’s ability to support his or her child. The Court believed its holding struck a balance between assuring reasonable provisions are provided for children and the realities of the personal and financial costs associated with injuries for which a personal injury award is intended to compensate. In re the Marriage of Plowman and Lawson, 2018 IL App (4th) 170665.9. Judgment for dissolution vacated due to trial court recusing itself, subsequently reconsidering the recusal, and rendering a decision at trial. At issue was whether a trial judge has the authority to reconsider its own recusal. The judge orally recused himself and entered an order transferring the case to another judge. When the matter came before the court again for a pre-trial conference, the judge announced that he was no longer recusing himself. Once a judge recuses himself or herself, the judge has no power to enter further substantive orders absent an agreement by counsel for the judge to remit the recusal. Therefore, the judge cannot reconsider his or her own recusal because that would be a substantive decision. Therefore, the entire judgment for dissolution of marriage was vacated and remanded. In re the Marriage of Peradotti, 2018 IL App (2d) 180247.10. Fair and reasonable disclosure in a premarital agreement does not mean “complete” disclosure. Wife challenged the validity of a premarital agreement on the grounds that it was unconscionable; that there was not a fair and reasonable disclosure of property by husband; that she did not execute a written waiver of disclosure; and that she did not have adequate knowledge of husband’s assets. The disclosure did not include husband’s earnings from a business, his various cars, and furniture; and it did not place values on some disclosed assets such as husband’s home and farmland that he owned. However, the statutory requirements of a fair and reasonable disclosure requires less than a complete disclosure, and the failure to disclose any particular asset is not fatal to the enforcement of the agreement. In re the Marriage of Woodrum, 2018 IL App (3d) 170369.

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