Feb 01, 2016

IICLE Family Law Flash Points - February 2016

1. Earned retainer fees of $60,000 disgorged under the leveling of the playing field statute. The Appellate Court affirmed a trial court’s decision concerning interim fee disgorgement in favor of the husband’s attorneys in the amount of $60,000 for fees earned and paid to wife’s attorneys. Husband earned a six figure salary, had paid his attorneys $2,500 and owed $53,000 at the time of the hearing. The evidence showed he had a negative cash flow after the payment of marital expenses, which included significant debt. Wife was unemployed but had borrowed $130,000 from her mother to pay her attorneys’ fees. Wife’s attorney took a “friendly contempt” to appeal the disgorgement. Among the claims of error was that the Supreme Court case of In re the Marriage of Earlywine, 2013 IL 114779 was not applicable because it only applied to advance payment retainers. However, because Earlywine did not expressly limit its holding to only advance payment retainers the Court held that the funds need not be sitting in a client trust account in order to be “available” for disgorgement under the interim fee statute. In re the Marriage of Squire, 2015 IL App (2d) 150271.2. Factor regarding ability and willingness to foster child’s relationship with the other parent tipped the scale in favor of father being named primary residential parent. The Appellate Court upheld a trial court’s decision to name father as the primary residential parent primarily due to the evidence that showed mother systematically attempted to exclude the father from the child’s life. Examples of this behavior included mother failing to name the father as a parent at the child’s daycare and enrolling the child in extracurricular activities during his parenting time without consulting him. The court reasoned that this was the only way to ensure active involvement of both parents in the child’s life. In re the Marriage of Young, 2015 IL App (3d) 150553.3. Third District rejects the necessity of having to prove a spouse’s inability to pay as a prerequisite to a contribution award. Wife’s former counsel sought contribution from husband after wife’s debt was discharged in bankruptcy. The Court held that the trial court should consider the parties’ relative financial circumstances under the Section 503 and 504 factors; that this approach was more in line with the statutory goals than having to prove the client’s inability to pay first in order to proceed; and it better allows attorneys to recoup at a least a portion of their fees when a client declares bankruptcy. There was a dissenting opinion which argued that the fact that wife had waived her right to a contribution hearing under the terms of the Marital Settlement Agreement and then had her debt discharged in bankruptcy precluded the contribution petition from moving forward. In re the Marriage of Anderson, 2015 IL App (3d) 140257.4. Vested restricted stock should have been included in income for child support purposes. As part of his employment compensation, husband received long term stock incentives in the form of restricted stock. In a post-judgment modification hearing, the trial court excluded vesting of restricted stock when calculating income for child support purposes with the exception of the value of any shares he sold and converted to cash. Wife appealed. While the case was pending before the Appellate Court, a motion to supplement facts was filed evidencing that husband was no longer employed at the same company, and as a result, some of the stock was vested and the remainder were forfeited. The Appellate Court reversed the trial court, holding that the restricted stock units that had vested were to be considered as income for child support purposes. In re the Marriage of Schlei, 2015 IL App (3d) 140592.5. Increase in parenting time from one hour every other week to three hours every other week not an abuse of discretion. During the pendency of the divorce case, the parties entered into a stipulated custody judgment granting mother sole custody of the three children and very limited parenting time for the father. The judgment also laid out a specific “path to increased parenting time” based on counseling. A therapist was named to help the children and father reconcile. Under the original judgment father had one hour of parenting time every other week and he filed a motion seeking substantially increased parenting time months after the entry of judgment. After a lengthy evidentiary hearing, including testimony from multiple competing experts, the parties, and other lay witnesses, the court increased the time from one to three hours every other week. Father appealed claiming that he should have been awarded more time, but the Appellate Court upheld noting that the trial court had not abused its discretion. The 604(b) had testified that the increased amount of time father wanted was not in the best interest of the children and the evidence indicated that father’s relationships with the children were still quite strained. In re the Marriage of Betsy M. and John M., 2015 IL App (1st) 151358.

News and Insights

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 ...
May 09, 2024

Let's Talk Arbitration

On this episode of "Until Death Do Us Pod", Schiller Ducanto & Fleck senior partner ...

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