Jun 01, 2013

IICLE Family Law Flash Points - June 2013

1. Supreme Court declares the proper standard for determining visitation in parentage cases to be the best interest standard under Section 602 of the IMDMA. The Illinois Supreme Court held that the proper standard the trial court should utilize to determine visitation under section 14(a)(1) of the Parentage Act is whether the visitation will be in the best interest of the child. Additionally, the burden is on the party seeking the visitation to show that such visitation will be in the best interest of the child. The Court relied on the plain language of section 14(a)(1) which expressly provides for a discretionary award of visitation and directs the trial court to make a best interest finding. Acknowledging that pursuant to Section 607 of the IMDMA there is a general presumption in divorce cases that it is in the best interest of the child to have reasonable visitation with the noncustodial parent, the Court distinguished dissolution cases from paternity cases because the legislature has presumed that it is in a child’s best interest to maintain a continued meaningful relationship with both parents after a divorce. However, preserving the parent-child relationship of a traditional intact family unit does not accurately reflect many family situations in paternity cases. In re the Parentage of J.W., 2013 IL 114817 (2013).2. Supreme Court upholds guideline support award on lump sum workers’ compensation settlement. Father, who was the recipient of a large workers’ compensation settlement, was ordered to pay a guideline support award of 20% of the proceeds, in the amount of $47,984. Father argued that he should not have to pay 20% of the lump sum amount because the settlement was a lifetime disability award and represented lost future wages which would extend well past the minor child’s minority. The Illinois Supreme Court upheld the award holding that the father never specifically asked for the trial court to deviate downward from guidelines and that there was insufficient evidence at trial to warrant a downward deviation. The Court also noted that the father had spent the majority of the money on himself. In so ruling, the Court overturned the case of In re the Marriage of Wolfe, 298 Ill.App.3d 510 (1998) wherein the Appellate Court reversed the trial court for awarding 20% on a lump sum workers’ compensation settlement. In re the Marriage of Mayfield, 2013 IL 114655.3. Trial court’s assessment of interest because of husband’s failure to make equalization payment upheld. Husband was ordered to pay an equalization payment of $330,275 to wife incident to a dissolution of marriage. He did not pay the amount and filed a motion to stay with the trial court while also filing a Notice of Appeal. Wife filed a motion to dismiss his motion for stay, to pay an appeal bond, and for interest to be assessed, and the trial court ordered the interest to be paid. The Appellate Court held that because the trial court made it clear that the award of interest was a penalty it was imposing for failure to comply with the judgment, that this issue was independent of and collateral to the issues raised in husband’s direct appeal and the that trial court retained jurisdiction to impose interest against a money judgment it awarded. In re the Marriage of Price, 2013 IL App (4th) 120115.4. Pre-judgment interim fee award upheld. Husband appealed a contempt finding based on non-compliance with a $78,500 award of interim attorneys’ fees to wife’s attorney on the grounds that the court misapplied Section 501(c-1)(3) of the IMDMA, because it denied his request for an evidentiary hearing. The Appellate Court found there was no abuse of discretion in awarding the interim fees and held that conducting an evidentiary hearing on an interim fee petition is the exception, not the rule. Furthermore, husband failed to argue what “good cause” warranted an evidentiary hearing. The Appellate Court also noted that due to the protracted amount of litigation in the case, including 48 different court appearances before the interim fee order was entered, the court had ample evidence before it regarding both parties’ financial circumstances. In re the Marriage of Levinson, 2013 IL App (1st) 121696.5. Property allocation in judgment not a final appealable order because the court also reserved maintenance. After trial, the court ordered 55% of the marital estate to wife and found that husband dissipated $14,000 in marital assets. The court also found that wife was entitled to maintenance but that because of husband’s temporary lack of income that issue was reserved and would be revisited in six months. The Appellate Court held that the property allocation and maintenance were ancillary issues to the underlying divorce, and until all of the ancillary issues were resolved it did not have jurisdiction to hear an appeal of the matter. Thus, the Court dismissed the appeal for lack of jurisdiction. In re the Marriage of Jensen, 2013 IL App (4th) 120355.6. Extension of Plenary Order of Protection upheld. After the issuance of a plenary order of protection against the petitioner’s ex-boyfriend, the petitioner sought to have the order extended alleging that her ex-boyfriend continued to make contact with her on the internet, through facebook and myspace, and through telephone calls. The trial court extended the order of protection and the ex-boyfriend appealed. The Appellate Court affirmed the order holding that even though the ex-boyfriend hired a computer expert who testified that the documents the petitioner introduced into evidence were falsified, the trial court is in the best position to listen to the testimony of all of the parties and afford weight and credibility to those witnesses. Furthermore, the evidence presented was sufficient to support the court’s finding. Stapp v. Jansen, 2013 IL App (4th) 120513.

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