Jul 01, 2014

IICLE Family Law Flash Points - July 2014

1. Illinois Supreme Court upholds decision providing for custodial parent to pay child support to noncustodial parent. The Illinois Supreme Court affirmed both the trial court and Appellate Court’s decision to order a custodial parent (father) to pay child support to the noncustodial parent (mother). The Court reiterated the long-standing rule that the support of a child is the joint and several obligation of both parents and that the plain language of Section 505 expressly confers the courts with the option to order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child. Illinois law does not confine the obligation of paying support to noncustodial parents. The Court also opined on a situation where a parent who is technically a noncustodial parent has visitation rights with the child that may equal or exceed the time the custodial parent has with the child, as was the situation in this case. The noncustodial parent may not have the financial resources to meet the substantial support costs which are to arise from such an extensive visitation schedule and could ultimately leave the noncustodial parent in a situation where he or she has insufficient resources to care for the child in a manner comparable to that of the wealthier parent. Therefore, a trial court may order the custodial parent to pay support to the noncustodial parent where circumstances and the best interest of the child warrant it. Father also argued to the Supreme Court that the trial court abused its discretion when it arbitrarily ordered him to pay $600 per month in support. But the Court held that issue was not properly before it because the Appellate Court had reversed the trial court’s ruling and remanded for an evidentiary hearing with directions to explain the basis for any support award. The Court reversed the portion of the Appellate Court’s decision upholding upheld the trial court’s order requiring father to pay the full amount of any of the children’s medical and dental expenses and requested the trial court revisit that issue when it reconsidered the support obligations. In re the Marriage of Turk, 2014 IL 116730.2. Denial of Motion for Stay and to Enjoin Discovery was not an abuse of discretion. French family court entered a judgment of dissolution which dissolved husband and wife’s marriage and granted joint parental authority with the children’s usual place of residence with the husband. The French court further said that it invited the parties to settle the liquidation and distribution of their property out of court. Husband later enrolled the foreign judgment in Cook County and filed a Petition to Establish Child Support since when all parties now resided in Illinois. Wife filed a Motion to Allocate the Marital Estate to distribute the marital assets and husband filed a Motion to Dismiss which the trial court denied. He then filed a Motion for Stay and Enjoin Discovery and Trial which the trial court also denied. The Appellate Court affirmed the trial court’s denial of a Motion for Stay because husband had registered and enrolled a French judgment for dissolution in Cook County, Illinois, thereby waiving his right to argue that the French court retained subject matter or personal jurisdiction over the case. The Court also noted that husband had no pending motions in the French court. Furthermore, the plain language of the French judgment invited the parties to settle their property rights outside of court, thereby negating the possibility that it had an ongoing case regarding the property rights pending. Marzouki v. Najar-Marzouki, 2014 IL App (1st) 132841.3. Employment bonus received after child’s emancipation for work performed prior to emancipation was not includable in income for child support purposes. The Appellate Court overturned a trial court’s decision to include a pro rata share of father’s (payor) performance based bonus in his net income for purposes of calculating child support. The central issue was whether the bonus constituted income under 505(a)(3) of the IMDMA when it was earned or when it was received. The Court heavily relied on the case of In re the Marriage of Wendt, 2013 IL App (1st) 123261, which held that a bonus which was speculative as to its receipt could not be considered marital property even thought it was earned during the marriage but not received until after the judgment for dissolution was entered (thereby making it non-marital property). The Court relied on Wendt and performed a similar analysis in the child support context holding that because the bonus was speculative because it was awarded solely at the discretion of the company, and therefore it was not income until it was actually received. Since it was received after emancipation, it could not be included in net income for calculating child support. In re the Marriage of Shores, 2014 IL App (2d) 130151.4. Relocation reimbursement expenses properly included in net income for child support purposes. Father (payor) received two relocation expense reimbursements from his employer, one in the amount of $20,355.21 received while the child was a minor, and a second one in the amount of $14,487.62 received after her emancipation. He testified that the money helped him maintain his home 60 miles away from the job, and second home near the job. He subsequently repaid the reimbursements when he voluntarily left the company pursuant to his employment agreement. The Appellate Court held that the fact that he repaid the reimbursements was relevant only insofar as to helps him satisfy a section 505(a)(3) obligation. The Court also noted that because he did not present a legal argument for why the repaid reimbursements should be excluded from net income, that argument was deemed forfeited on appeal. The Court found the reimbursements were not speculative in nature and because both were accrued within the child’s minority, the trial court did not err in including them in net income for child support purposes. In re the Marriage of Shores, 2014 IL App (2d) 130151.5. Trial court did not abuse discretion in denying trial continuance, request for interim attorneys’ fees. After the entry of a judgment for dissolution of marriage following a trial, wife who was pro se, filed an appeal challenging three rulings of the trial court: (1) that the court violated Rule 13 when it allowed the withdrawal of her former attorney; (2) that the court abused its discretion in declining to award her interim attorneys’ fees and (3) that the court abused its discretion in not continuing the trial due to her surgery. The Appellate Court affirmed on all issues. There was no Rule 13 violation because there is no constitutional right to counsel in a divorce action and therefore a Rule 13 violation cannot impinge on any such right. Furthermore, there was nothing prejudicial about allowing the withdrawal even though wife was not in court when the order was entered because she was granted 21 days to obtain new counsel and the trial dates were continued more than 90 days thereafter. The trial court did not abuse its discretion in denying the interim fee request because wife could not bring this request as a pro se litigant, but rather, an attorney needed to file an Appearance and request the fees on her behalf. The Court also noted that the four petitions filed were not verified and did not contain any affidavits attached thereto. Finally, the denial of the request to continue the trial on the day it was scheduled to begin was not an abuse of discretion since wife had no affidavits from any physicians who could attest to her medication, symptoms, or side effects that she may have been experiencing from the surgery. In re the Marriage of Heindl, 2014 IL App (2nd) 130198.6. Trial court’s order placing restrictions on parents when their children are in their custody was not an injunctive order. During the pendency of a divorce proceeding, the trial court entered an order with the support and recommendation of the Child Representatives that directed the couple from participating in certain behaviors while the children were in their possession. The behaviors included prohibiting the parents from beating, striking or threatening the children, discussing any aspect of the litigation with the children, questioning their children regarding their preferences as to custody, discussing with the children potential interviews with the court, mediators, or attorneys, engaging in electronic surveillance of the other party or the children, and the like. Mother filed an interlocutory appeal alleging the injunctive order violated her due process rights. The Appellate Court affirmed the trial court’s order holding that even though the order had the word “injunction” in its title, it was not an injunctive order, and therefore there was no right by mother to an interlocutory appeal. As part of their authority to enter temporary visitation and custody order, trial courts enter “rules of the road” orders which assign burdens and limits on parents when their children are in there care in order to serve the best interest of the children. Just because an order requires the parties to do something does not necessarily make the order an injunction. In re the Marriage of Eckersall, 2014 IL App (1st) 132223.7. Postnuptial Agreement held unenforceable against public policy and substantively unconscionable. A postnuptial agreement which designated a third party as their “Religious and Marital Counselor and Arbiter of their Marital Affairs” which provided for him to approve any major decisions in the marriage, including but not limited to financial matters, child-related matters, work, travel, or any contemplated divorce, was unenforceable, against public policy, and substantively unconscionable. Among the many problems with the agreement was the fact that the document repeatedly referred to a “reasonable” or “unreasonable” divorce which was to be determined by the named third party. Additionally, the agreement stripped the court of its ability to make custody, visitation, and support decisions which are in the best interest of the children. The agreement was substantively unconscionable because it called for wife to forfeit all of her rights to the largest marital asset, the marital residence if she “unreasonably filed for divorce.” The agreement did not impose a similar penalty on husband. In re the Marriage of Iqbal and Khan, 2014 IL App (2d) 131306.8. Denial of Motion to Appoint 604.5 Evaluator not an abuse of discretion. After the 604(b) custody evaluator issued a report recommending that mother be named the children’s sole custodian in part because she had been the children’s primary caregiver and that husband had a negative view of wife that was not supported by the evidence, husband filed a motion to appoint a 604.5 evaluator. As part of the evaluation he requested that both parties be ordered to submit to psychological testing. The Guardian ad Litem (GAL) had also issued a report consistent with the 604(b) report and said that she did not believe the parties could cooperate well enough for joint custody and mother was more likely to preserve father’s bond with the children than vice versa. The Appellate Court held that the trial court’s denial of the motion to appoint the 604.5 evaluation was not an abuse of discretion because the court did allow husband’s expert to review the 604(b) evaluator’s tests and records and opine on them at trial with respect to the alleged errors. As to the merits of the custody case, the trial court awarded the mother sole custody which was also upheld because the trial court made a specific finding that the father would be the parent most likely to interfere with the parental relationship between the children and mother. In addition, both the 604(b) and the GAL had opined that mother had not interfered with father’s relationship with the children. In re the Marriage of Iqbal and Khan, 2014 IL App (2d) 131306.9. Award of maintenance and disproportionate share of marital property to wife not an abuse of discretion. Trial court did not abuse its discretion when it awarded maintenance to wife who was in her forties, married for over 10 years, and forewent employment to care for the parties’ three children. Furthermore, her lack of credentials in this country and need for additional training and certification to be able to become employed in her field was an additional reason she needed further support from husband in order to maintain the lifestyle established during the marriage. Moreover, the slightly higher proportion of marital assets awarded to her would not cure the shortfall between her earning capacity and household expenses. Husband appealed the award on the grounds that he could not find work in Illinois that would permit him to attain the same standard of living enjoyed during the marriage. However, the trial court found that he was currently underemployed since he had voluntarily left his most recent position at which he was earning a high salary. The trial court also stated that it expected he could shortly gain employment given his education and skill set. The court also awarded wife a disproportionate share of the marital assets because it could not set maintenance at the time it issued judgment because husband’s low income prevented it from awarding any amount of maintenance and had also caused an unreasonably low amount of child support to be ordered. In re the Marriage of Iqbal and Khan, 2014 IL App (2d) 131306.

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