Jun 01, 2017

IICLE Family Law Flash Points - June 2017

1. Illinois Supreme Court to hear case regarding disgorgement of interim attorneys’ fees. The Illinois Supreme Court has granted a PLA to hear the appeal of the Third District case of In re the Marriage of Goesel, 2017 IL App (3d) 150101, where the appellate court reversed the trial court and held that (1) the trial court could not disgorge fees already earned by counsel; and (2) there was no portion of the retainer paid by husband to his counsel available for disgorgement since the entire retainer subject to the order had already been applied to services previously rendered by husband’s attorney. 2. Trial court reversed on issue of whether lack of written engagement agreement precluded contribution hearing in Parentage case. In a parentage case, mother could not pay a retainer and counsel and mother had not entered into an engagement agreement because they could not agree on an hourly rate for counsel. During the pendency of the case, counsel brought three interim fee petitions, none of which were set for hearing until entry of the final orders disposing of the substantive pending issues. When mother’s third interim fee petition was set for hearing, father brought a motion to dismiss. The trial court ruled that mother’s third interim fee petition was actually a motion for contribution and that without an engagement agreement, it had no choice but to dismiss the petition. The Appellate Court reversed and held that Section 503(j)(5) of the IMDMA clearly indicates that the legislature intended that, where counsel has received no payment from his client due to hardship, a court could order a contribution award to the party’s counsel. It further noted that the requirement for a written engagement agreement under section 508(c) applies only if counsel and his client cannot agree on how much each should receive from the contribution award. Since mother had no claim to the award because she had paid nothing to her counsel, there was no disagreement. Therefore, the trial court should have held an hearing pursuant to 503(j) and 508(a). In re Parentage of J.W., 2017 IL App (2d) 160554.3. Guardianship court authorized to utilize Section 513.5 of the IMDMA in setting support for an adult disabled daughter. In a guardianship proceeding where the mother of an adult disabled daughter sought and obtained plenary guardianship over her emancipated daughter’s estate and person, mother also sought a modification of support for the daughter. The mother and father had been divorced and father had been paying child support in accordance with the terms of the judgment. The probate court ultimately ordered support in the amount of $350 per week, but determined that Section 513.5 of the IMDMA did not apply to probate proceedings and did not state how it arrived at the support figure. The Appellate Court reversed and remanded for a hearing consistent with the terms and provisions of Section 513.5 and held that this section authorizes probate courts to issue awards of support from a former spouse to support the former spouse’s adult disabled children. In re the Guardianship of Sanders, 2017 IL App (4th) 160502.4. Modification from one parent serving as the primary custodial parent to both parents having equal parenting time was not a “minor modification” pursuant to section 610.5(e(2) of the IMDMA. In a post-judgment proceeding, ex-husband brought a motion to modify the regular parenting schedule wherein he sought a 6% increase in his parenting time as well as a change from joint decision-making to sole decision-making. The 6% increase would have resulted in a 50/50 parenting schedule. Ex-wife filed a motion to dismiss arguing that he had not alleged a change in circumstances and that the modification sought was not a minor modification which the trial court granted and the Appellate Court affirmed. The amended IMDMA now allows for a modification of parenting time absent a substantial change of circumstances in limited situations. The court may modify a parenting plan without a showing of changed circumstances if the modification constitutes a minor modification in the parenting plan or allocation judgment. However, ex-husband’s motion was not a minor modification of the parenting plan since the result would modify the judgment such that there would no longer be a primary custodial parent, but rather both parents would have equal parenting time. A party seeking such a modification must still show a substantial change in circumstances. In re the Marriage of O’Hare and Stradt, 2017 IL App(4th) 170091.

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