Feb 01, 2014

IICLE Family Law Flash Points - February 2014

1. Timing for appealing denial of petition to vacate judgment and request for downward deviation of child support not tolled by the filing of fee petition. In a unique set of factual circumstances, after an alleged father of a minor child signed a Voluntary Acknowledgement of Paternity (VAP) and the trial court entered a custody and support order, a second alleged father filed a motion to intervene in order to vacate such orders after he obtained DNA evidence he was the biological father of the child. The trial court denied the second alleged father’s Section 2-1401 motion to vacate the custody and support order, but allowed him to have court-ordered visitation and to pay child support. Subsequently, three months passed between the entry of the order denying the motion to vacate and the second alleged father’s notice of appeal, during which time the child’s mother filed a request for the second alleged father to contribute to her attorneys’ fees. The Appellate Court held, however, the filing of the petition for contribution to fees did not toll the time for filing a notice of appeal on the motion to vacate, and therefore, the Court did not have jurisdiction to review the trial court’s denial of the motion. The Court used a similar analysis in holding that it also did not have jurisdiction to review the trial court’s order of a downward deviation on the second alleged father’s child support. In re the Custody of C.C., 2013 IL App (3d) 120342.2. Second alleged biological father’s parental status called into question in both majority opinion and dissent. The unique set of factual circumstances in the case of In re the Custody of C.C., 2013 IL App (3d) 120342, led the Third District to write a rare advisory opinion on the subject of whether in paternity cases a court can recognize that a child may have two parents (in addition to the biological mother) who share equal court-ordered parental rights and obligations. In In re the custody of C.C., a presumed biological father signed the Voluntary Acknowledgement of Paternity (VAP), but a second alleged biological father sought to vacate the judgment for paternity after he obtained DNA evidence that he was the actual biological father of the child. Both the majority and dissent raised concerns that the current statutory scheme does not allow a trial court to order an actual biological father to pay any child support when the child has a presumed father per a VAP. The question also arises whether the actual biological father has standing to intervene in the paternity action. Because neither of these issues were appealed, the Court could not rule on them. However, the Court did urge the legislature to consider alternatives that would make such determinations more clear for the trial courts. In re the Custody of C.C., 2013 IL App (3d) 120342.3. Funds received by a child support payor from the post-divorce sale of stock did not constitute income for purposes of child support. The Petitioner, a mother and child support recipient, filed a Petition for Rule to Show Cause against her ex-husband after he failed to pay her 20% of the proceeds he received from the sale of certain stock post-divorce. The judgment required him to pay her 20% of all additional income he received (over and above the base amount of support). She argued the proceeds received was income. He argued that because he converted stock he owned pre-divorce into cash, and took a loss in the process, the proceeds were not income. The Appellate Court agreed and held that the mere conversion of the stock to money did not result in a gain and the cash proceeds simply took place of the stock. In its opinion, the Court distinguished its decision in In re the Marriage of Colangelo, 355 Ill.App.3d 383 (2005), where it held that distributions from unvested stock options (at the time of the divorce and subsequently vested and converted to cash) should be included in the calculation of net income for child support because the unvested stock options were incapable of being exercised at the time of the divorce while the shares of stock in this case were readily capable of being converted into cash. In re Marsh, 2013 IL App (2d) 130423.4. Denial of contribution to attorneys’ fees in parentage matter upheld. This is a second appellate opinion in the case of In re Parentage of Rocca, 2013 IL App (2d) 121147, after the return on remand, where former counsel was granted a contribution hearing against both his former client and the other party. On remand, the trial court denied counsel’s petition for contribution and petition for supplemental and appellate attorneys’ fees and the Appellate Court affirmed. At the contribution hearing, despite former counsel’s client not appearing, counsel proceeded with the hearing and testified to the reasonableness of the fees incurred and requested the court take judicial notice of the file. The court granted a motion for directed finding argued by the other party because it could not make any finding regarding counsel’s former client’s inability to pay her own attorneys’ fees and no evidence was presented regarding same. The trial court also denied counsel’s motion for supplemental and appellate fees reasoning that counsel was not representing his client when pursuing the appeal of this matter, but was doing it on his firm’s own behalf and the IMDMA does not give a lawyer the right to sue former clients for appellate fees prosecuted for his own benefit. In re the Parentage of Rocca, 2013 IL App (2d) 121147.

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