Jan 01, 2014

IICLE Family Law Flash Points - January 2014

1. Illinois Supreme Court grants PLA in In re the Marriage of Turk. We previously reported on In re the Marriage of Turk, 2013 IL App (1st) 122486, in the October Flash Points. In a post-judgment matter, father was ordered to pay child support to mother even though he was the sole custodian of the parties’ two children. Under the parenting schedule, mother and father had approximately equal parenting time with the youngest child. (The oldest child and mother were estranged.) Father was ordered to pay mother $600 per month in child support and the Appellate Court upheld the award under the reasoning that the trial court could award support to a noncustodial parent when both parents have significant parenting time and there is a disparity of income between the two parents, which there was in this case. The Illinois Supreme Court has granted father’s Petition for Leave to Appeal. In re the Marriage of Turk, 2013 IL App (1st) 122486.2. Illinois Supreme Court holds that the omission of a payor’s social security number results in an invalid notice to withhold. The Illinois Supreme Court has upheld the Second District Appellate Court’s ruling in Schultz v. Performance Lighting, Inc. 2013 IL App (2d) 120405 that the failure of a notice to withhold child support (Notice) served upon an employer which does not include the social security number of the employee obligor makes the Notice invalid under 750 ILCS 28/20(c), and thereby does not subject the employer to the $100 per day penalty for failure to comply with the withholding. The Supreme Court reasoned that the Notice at issue was statutorily deficient because 750 ILCS 28/20(c) unequivocally requires that the obligor’s social security number be included without exception. The Court also stated that this ruling comports with the same standards of the federal Child Support Enforcement Act and noted the importance of maintaining consistency in the interpretation of the statutes for employers who are obligated to deduct child support from their employees’ paychecks. Schultz v. Performance Lighting, 2013 IL 115738.3. Trial court reversed for failure to deduct health insurance premiums from payor’s net income when calculating support, even when multiple support orders exist. In In re Aaliyah, the Appellate Court reversed a trial court’s decision to not deduct the monthly health insurance premiums when calculating father’s net income for child support. The father was subject to two different child support orders for children with two different mothers. When calculating his net income for the first child support order, the court deducted the total amount of his monthly insurance premiums ($485). In the second matter (In re Aaliyah), the trial court declined to make the deduction stating that because he had already received the deduction once, he could not take it again. The court also noted that the amount of his monthly premium did not increase with the addition of the second child. The Appellate Court reversed stating that Section 505(a)(3)(f) allows for the deduction of health insurance premiums for dependents without limitation, not just if the premium increases for adding the child at issue to the plan. Therefore, the trial court should have made the deduction when calculating net income to set support for the second child. In re Aaliyah, 2013 IL App (2d) 120414.4. Joint Property provision of premarital agreement provided for equal division of two residences titled in joint tenancy. Husband appealed a trial court’s ruling that the parties’ marital residence and vacation residence should be equally divided pursuant to the terms of the parties’ premarital agreement. He argued that the terms of the premarital agreement were not clear and unambiguous because the agreement did not address the reimbursement of upfront costs paid for by either party prior to the division of the asset. The Appellate Court upheld the trial court’s finding that the agreement was clear an unambiguous and the equal division of the jointly titled residences because the language provided that “unless the parties agree otherwise in writing to the contrary, any ***property as to which the parties take title in joint tenancy ***shall be hereinafter referred to as ‘Joint Property’ and upon dissolution of marriage “all Joint Property shall be divided equally between the parties.” In re the Marriage of Chez, 2013 IL App (1st) 120550.5. Mother allowed to remove minor child to Ohio. The Fifth District reversed a trial court’s order denying a mother’s request for permanent removal of the parties’ minor child to Ohio in order to become gainfully employed. Mother had been living in her parents’ home for some time and had applied to 30 different companies in the St. Louis metropolitan area with no offers. However, she received an offer from a company in Columbus, Ohio which had a substantial benefits package. The community also had quality housing and school systems which would benefit the child. The Appellate Court took issue with the trial court’s “arbitrary” ruling not allowing the removal (contrary to the Guardian Ad Litem’s recommendation) and held that mother’s motives for removal were rooted in her desire to obtain gainful employment, not to keep the child away from his father. The Court also took issue with the fact that trial court rendered two alternative rulings regarding legal and physical custody dependent upon whether mother voluntarily returned with the child to Illinois within thirty (30) days. These alternative rulings implied that the child’s best interest would change overnight dependent upon whether the mother returns to Illinois within the trial court’s timeframe, which is wholly against the best interest standard set forth in the Section 602 of the IMDMA. In re the Marriage of Smith, 2013 IL App (5th) 130349.

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