Jan 31, 2022

IICLE Family Law Flash Points - February 2022

Marital Settlement Agreement Did Not Contemplate That Substantial Increase in Income Would Not Constitute Substantial Change in Circumstances for Purposes of Modifying SupportIn re Marriage of Yabush,2021 IL App (1st) 201136, the husband appealed the trial court’s denial of a motion to reduce support after his income increased from $138,000 at the time of judgment to $2.2 million at the time he moved to modify support. The language in the marriage settlement agreement provided that the husband was to pay 28 percent of his base pay plus 28 percent of any bonuses. The judgment was entered in 2011, prior to the change in the child support statute. The husband moved to modify his support in 2018 after he started a business post-divorce, which was the reason for the drastic increase in income, and he argued that the requirement to pay 28 percent of his total income would now be a windfall to the wife. The trial court ruled that the parties had contemplated the husband’s variable income when entering into the judgment and that there was no substantial change of circumstances. The appellate court reversed. There was no evidence that the parties intended that, had the husband earned 16 times the amount he was earning when the judgment was entered, such an increase would not have been a substantial change in circumstances.Loans from Parents Not Income for Purposes of SupportThe husband appealed the trial court’s finding in a post judgment support modification hearing that moneys the wife received from her parents were loans and not includable in the income shares calculation for child support or the maintenance calculation.In re Marriage of Ash,2021 IL App (1st) 200901. Under the original judgment, the husband paid $2,488.48 in child support every two weeks and $3,285.83 in maintenance every two weeks. The judgment provided that the husband had a net annual income of $186,635.92. Less than a year after the entry of judgment, the husband filed a motion to reduce his support on the basis that his income had decreased. After an evidentiary hearing, the trial court reduced the husband’s maintenance to $1,932.38 every two weeks. 2021 IL App (1st) 200901 at ¶20. The court found the guideline support calculation would be $1,346.18 per month but deviated upward to $3,048 per month and delineated reasons for the upward deviation including the needs and expenses of the children. 2021 IL App (1st) 200901 at ¶¶23 – 24. The appellate court affirmed the trial court’s exclusion of approximately $700,000 in loans from the wife’s parents for expenses and $800,000 for attorneys’ fees. 2021 WL 5983918 at ¶18. While the trial court should consider loans as potential income for purposes of calculating support, whether the loans should be included as income depends on the facts of each case. The trial court believed the wife’s testimony and found her credible on the issue of whether she would be required to pay back the loans. She had maintained records each time her parents loaned her money and paid off a credit card balance. There were also signed notes for some of the sums she received. Further, the loans did not enhance her wealth but rather were used to pay for expenses that would have been covered by the support payments.Trial Court Reversed for Ordering Intervenor To Sell Property for Payment of Parties’ Attorneys’ FeesIn re Marriage of Roman-Kroczek,2021 IL App (1st) 210613, a litigious case spanning approximately nine years including two interlocutory appeals and the involvement of ten different circuit court judges, the trial court ordered the wife’s sister (who had also intervened in the case) to sell property in Florida to pay for the parties’ attorneys’ fees. The property was titled in the intervenor’s name at the time she appealed. The appellate court reversed, stating the order was manifestly unreasonable under the circumstances and an abuse of discretion. The order that was appealed was a mandatory injunction to pay for interim fees, was overreaching, and was not sufficiently tailored to achieve its desired purpose while accounting for the other relevant considerations. The record evidenced that the parties had other assets to pay their obligations. Therefore, there was an adequate remedy at law available to the attorneys that would remain available without the necessity of extraordinary relief of selling that specific property in question. The appellate court noted on more than one occasion that the case simply needed to be resolved.Petition for Contribution to College Expenses DeniedIn re Marriage of Graham,2021 IL App (3d) 200476, the wife appealed the trial court’s dismissal of her petition for contribution to college expenses. The dissolution judgment provided that the husband agreed to pay for all of the parties’ three children’s “past, present, and future college expenses.” 2021 IL App (3d) 200476 at ¶10. The primary issue was whether the language of the judgment imposed an indefinite obligation on the husband to pay for a four-year degree. The petition was filed just prior to one child’s 30th birthday and sought reimbursement for expenses incurred after her 23rd birthday. The child did not demonstrate a propensity for higher learning, and she did not have a “C” average. The husband also submitted that he had paid for all expenses incurred within the four consecutive years after her graduation from high school, but she would still need an additional two years to obtain a four-year bachelor’s degree. The appellate court affirmed the dismissal of the petition.Motion for Involuntary Dismissal Upheld on Basis of AffidavitThe husband inGraham, supra, brought a motion for involuntary dismissal pursuant to §2-619 of the Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,to which he attached an affidavit alleging facts in support of an affirmative defense to the underlying petition for contribution to college expenses. Among those facts were that the child did not meet the condition precedent for payment of her college expenses such that she had attended college part-time off and on for several years but would still take another two years to complete her degree; she did not maintain a cumulative GPA of “C”; and she had failed numerous classes. No counter-affidavit was filed that refuted such facts. Therefore, those facts were properly deemed admitted and the trial court did not err as a matter of law in dismissing the underlying petition.

News and Insights

Jun 11, 2024

How Prior Planning Prevents Poor Performance

Everyone loves a June wedding! When people ask a couple on the brink of their vows how ...
May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.