Jun 01, 2015

IICLE Family Law Flash Points - June 2015

1. Trial court reversed for imputing new spouse’s income to mother when allocating college expenses under Section 513 of the IMDMA. A stay-at-home mother filed a petition for contribution to college expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), and the trial court ordered her, the child’s father, and the child to contribute certain sums to the education expenses over the four-year college term after the use of a college savings account and scholarships. The mother, who was remarried, unemployed, and relied solely upon her new husband for the payment of all of her expenses, appealed. The evidence showed that she stayed at home full-time, home-schooled a special needs child, and had limited assets of her own. The father earned in excess of $100,000 of year, owned three pieces of real estate, and had numerous investment accounts. In its ruling, the trial court imputed mother’s new husband’s income to her when ordering her to contribute to the college expenses. The Appellate Court reversed, holding that while the court was entitled to consider her new spouse’s income to the extent that his assistance freed up the mother’s own assets for contribution, it should not have directly attributed his income to her. The Court engaged in a lengthy analysis of In re the Marriage of Drysch, 314 Ill.App.3d 640 (2000) and In re the Marriage of Street, 325 Ill.App.3d 108 (2001) and concluded that by imputing her new husband’s income to her, the court effectively shifted the burden to the new husband to pay for another child’s college education. Such reasoning has no basis in Drysch or its progeny. In re the Parentage of M.M., 2015 IL App (2nd) 140772.2. Finding of fraud upheld due to ex-husband’s failure to disclose new employment. The Appellate Court upheld a finding of contempt that an ex-husband committed fraud when he failed to disclose that he had obtained gainful employment in an amount of over $60,000 annually while he and his ex-wife were engaged in continuous post-judgment child support litigation. The parties were divorced in 1998 and ex-wife began to have chronic collection issues beginning in 2002. Ex-husband was held in contempt of court multiple times, was ordered to maintain a job diary, and multiple arrearage calculations were made and payment schedules ordered to reduce the various arrearages. In 2011, ex-wife filed a Section 2-1401 petition to vacate two prior arrearage orders after husband admitted in a deposition he had begun full time employment with a hospital earning over $60,000 and that such employed began prior to the court’s entry of a 2003 arrearage order. He eventually admitted that he failed to disclose the employment. The trial court found he had committed fraud by omission and the Appellate Court upheld noting the diligence with which the trial court had tried to make him pay down his arrearage and keep current with his payments. In contrast, the ex-husband enjoyed his income from the hospital for many years without any concern that he might be ordered to pay more in child support or more towards the arrearage. The Court also affirmed the retroactivity of the increase back to the date of the fraud and upheld the award of statutory interest. In re the Marriage of Rocha, 2015 IL App (3rd) 140470.3. Award of an equal parenting schedule not an abuse of discretion. The Appellate Court upheld a trial court’s award of joint custody and a 50/50 parenting schedule after a full evidentiary hearing where the evidence showed that the parties acted with an extraordinary level of cooperation. Mother appealed the order of an equal parenting schedule but did not object to the award of joint custody. She argued that Section 602.1 of the IMDMA disfavors equal parenting time, but the Court held that the statute neither mandates nor precludes equal parenting time in a joint custody situation. The Court did acknowledge that 50/50 arrangements have traditionally been viewed with caution, but that based on the facts of this particular case the court did not abuse its discretion in fashioning such a schedule because of the level of cooperation between the parents and because they lived within close proximity to each other. In its opinion the Court also distinguished this case from In re Marriage of Swanson, 275 Ill.App.3d 519 (1995) because of the difference in the parties’ ability to cooperate in the best interest of the child. Also noteworthy in this opinion is that the trial court’s calculation of child support the father would owe to the mother based on the 50/50 schedule. The trial court calculated guideline support on each of the parties’ respective incomes and ordered father to pay mother the differential. The father earned approximately $80,000 and the mother $16,000. Neither party appealed this portion of the trial court’s order so the Appellate Court did not have opportunity to rule on whether that was an appropriate calculation. In re the Marriage of Perez, 2015 IL App (3r) 140876.4. Absence of a designation of primary residential parent in a custody judgment was not an abuse of discretion by the trial court. Section 602.1 of the IMDMA does not require the designation of a “primary residential parent” and therefore the trial court did not err in excluding such designation in custody judgment that awarded the parties joint custody and an equal parenting schedule. The language of 602.1 only requires that the physical residence of the child be determined in an express agreement or order of the court. Because the court took into consideration all of the facts of the case when determining the child’s residence by designating which days the child would reside with each parent, the court acted within the purview of Section 602.1. In re the Marriage of Perez, 2015 IL App (3rd) 140876.5. Post-judgment motion to vacate was time-barred and properly dismissed where mother had knowledge of father’s potential fraudulent concealment for more than two years before she filed her motion. In a procedurally complex parentage case over the period of more than 14 years after the entry of the original paternity judgment, mother filed a motion to vacate the 1997 judgment on the basis of fraudulent concealment. She alleged that the father had undertaken a pattern of concealing employment income and assets since the entry of the original child support order and sought retroactive relief. During the pendency of this case, mother had at least eleven (11) different lawyers, issued approximately 73 subpoenas related to the father’s assets and income, and took nine (9) depositions. Mother had also filed a petition to modify support back in 2000 which lasted for approximately eight (8) years and on the eve of trial she withdrew the petition. When she later filed the Section 2-1401 motion to vacate in 2010, it had been over two years since she first discovered the potential fraud by father, which she allegedly discovered during the discovery phase of her petition to modify. Mother also admitted in a Request to Admit Facts that she had accused the father of fraud prior to two years before the filing of the 2-1401 action. The trial court granted father’s motion to dismiss the 2-1401 action and the Appellate Court affirmed. Because the mother was aware of a possible claim for vacating the 1997 judgment for more than two years prior to filing her claim, her action was properly time-barred. Cavitt v. Repel, 2015 IL App (1st) 133382.6. Connecticut law was the appropriate state law to apply when evaluating a petition for contribution to college expenses even though all parties lived in Illinois at the time the petition was filed. Husband and wife were divorced in Connecticut, but eventually both parties and all minor children relocated to Illinois. Wife filed a petition to enroll the Connecticut judgment for purposes of enforcement and modification which eventually both parties agreed to do. Husband subsequently moved to Florida and wife filed two pleadings in Illinois: (1) a petition for contribution to college expenses and (2) a motion to modify child support. Husband moved to dismiss the petition for contribution to college alleging that under Connecticut law, there was no mechanism for either party to seek a contribution to college expenses from the other party. The trial dismissed both of wife’s pleadings on the grounds that Connecticut law applied under the Full Faith and Credit Act. The Appellate Court affirmed the dismissal of the petition for contribution to college expenses, and held that the Family Support Act (Sec. 611) requires that Illinois apply Connecticut law when modifying any aspect of another state’s order, including evaluating whether such relief is available. The Court noted that the trial court’s analysis of the Full Faith and Credit Act was in error, but that it was harmless because even under that analysis, an Illinois court would be required to apply the provisions of the Family Support Act which ultimately require it to apply Connecticut law. The Appellate Court did reverse the trial court’s dismissal of the motion to modify child support and remanded back for hearing in accordance with Connecticut law. In re the Marriage of Edelman and Preston, 2015 IL App (2nd) 140847.

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