Jan 01, 2017

IICLE Family Law Flash Points - January 2017

1. Wife not awarded survivor benefit under military retirement pension. The Appellate Court affirmed a trial court’s decision to not order husband to maintain wife as a survivor beneficiary under his federal military retirement pension, and instead made wife and their child beneficiary of a $400,000 life insurance policy. The Appellate Court noted that it did not interpret the trial court’s decision to mean that the survivor benefit was not marital property. Rather, it favored an interpretation that meant it was marital property but should not be awarded to wife. Under husband’s pension, wife would only receive the monthly benefit so long as husband was alive. If she remarried prior to the age of 55 she would no longer be entitled to the benefit. Also, if she died before husband, her estate would not receive the benefit. Furthermore, husband could not name any future spouse as a survivor beneficiary, even if he remarried and was still married at the time of his death. Since the survivor benefit was simply not divisible under federal law, the court had an all-or-nothing decision to make and decided the most equitable result was to deny wife the survivor benefit but make her and the minor child beneficiaries of the existing life insurance policy. In re the Marriage of Coviello, 2016 IL App (1st) 141652.2. Husband’s power-of-attorney and the recipient of sales proceeds of marital business properly joined as third-party defendant in divorce case. Husband’s brother-in-law, who was also a resident of California and his power-of-attorney, received $575,000 of the sales proceeds of a marital business during the pendency of his divorce case. Wife successfully moved to join the brother-in-law as a third-party defendant. He subsequently moved to dismiss the third-party complaint against him for lack of personal jurisdiction which was denied. The Appellate Court affirmed. Illinois had personal jurisdiction because both the requirements of the long arm statute (735 ILCS 5/2-209) were met and due process was satisfied. The brother-in-law received possession and control of the sales proceeds of a company in Illinois and those proceeds were the subject of wife’s third-party complaint. He also traveled to Illinois for the sale of the company and to appear in court with husband as well as keeping in regular communication with husband. He had also acted as husband’s attorney-in-fact pursuant to an Illinois power-of-attorney drafted in Illinois. In re the Marriage of DiFiglio, 2016 ILApp (3d) 160037.3. Bifurcated judgment upheld. The trial court properly granted husband’s emergency petition to bifurcate a judgment for dissolution of marriage due to his terminal illness. Husband testified at the hearing that he wished to marry his girlfriend, whom he had been in a relationship with for seven (7) years and dispose of his estate free of his wife’s influence. The evidence showed the parties had been separated for approximately ten (10) years. The trial court granted the bifurcated judgment and husband died less than a month later. The Court relied on the Copeland v. McLean, 327 Ill.App.3d 855 (2002) decision and held that the impending death of a party can represent an appropriate circumstance for the entry of a bifurcated judgment. The Court also noted that the trial judge was in the best position to determine the effect that the bifurcated judgment would have on its ability to dispose of the marital estate and that it did not abuse its discretion when granting the emergency petition. In re the Marriage of Breashears, 2016 IL App (1st) 152404.4. Ex-wife not entitled to percentage of ex-husband’s income tax refund as child support. Ex-wife filed a motion to modify child support and the parties subsequently stipulated to an agreed increase. She then immediately sought 28% of ex-husband’s 2014 tax refund. The trial court denied and the Appellate Court affirmed. The record showed that ex-husband intentionally over-withheld taxes each year and received a large tax refund. Ex-wife had his 2014 W-2 and 2014 tax return at the time she stipulated to the increase in child support payments. The question was not whether ex-husband’s withholding on his paycheck was correct, but rather whether his child support payment was properly calculated based on his actual net income. Because the parties stipulated to his support obligation after the close of discovery and after receipt of his tax return, the trial court did not err in computing his net income, and if his net income did not adjust for the over-withholding, that was ex-wife’s error, not the court’s. In re the Marriage of Eastburg ex rel. Condreay, 2016 IL App (3d) 150710. 5. Indirect civil contempt order that did not contain a purge provision was void. In a highly contested post-judgment visitation proceeding where father alleged both visitation abuse and indirect civil contempt against mother due to several alleged missed visitation periods by him including regular weekend time, Father’s Day, winter break, and summer vacation time, the trial court found that mother was both in indirect civil contempt of court and had engaged in visitation abuse. Mother appealed. The trial court heard significant testimony from both parties regarding each specific period of time that alleged missed visitation occurred and the Appellate Court supported the trial court’s findings that it was concerned that mother permitted the child to “pick and choose” when he would visit with his father and that mother had allowed the child to play in a baseball game after being too ill to visit with his father the prior day. However, a valid indirect civil contempt order must contain a purge provision which lifts the sanction when the contemnor complies with the order. Because the contempt order did not contain a valid purge, but rather just provided for the parties to agree upon make-up visitation time, the order was void. Father’s participation was a necessary prerequisite to establishing the make-up parenting time, and prior case law dictates that it is improper to require action by a third party to effectuate a purge. (See Flash Point # 6 regarding the visitation abuse portion of the order.) In re the Marriage of Knoll and Coyne, 2016 IL App (1st) 152494.6. Finding of visitation abuse upheld. In a highly contested post-judgment visitation proceeding where father alleged both visitation abuse and indirect civil contempt against mother due to several alleged missed visitation periods (see Flash Point # 5 above), the trial court found mother to have been engaged in visitation abuse pursuant to Section 607.1 of the IMDMA and the Appellate Court affirmed. The trial court ordered make-up visitation for the periods of time father was unable to exercise his visitation, which was a remedy that was expressly authorized by Section 607.1. In re the Marriage of Knoll and Coyne, 2016 IL App (1st) 152494.

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