Mar 03, 2018

IICLE Family Law Flash Points, March 2018

1. Trial court affirmed on denial of retroactive child support, award of retroactive maintenance.On appeal, wife argued the trial court erred in denying her request for retroactive child support and granting husband retroactive maintenance.Husband’s income was $49,000 and wife’s was $117,000.The trial court found wife not credible. During the proceedings, husband filed a motion for temporary maintenance and child support and wife a motion for temporary child support.Both motions were continued to trial.The judgment for dissolution of marriage provided for wife to pay husband permanent maintenance retroactive to November 2013 which was when husband had filed his motion for temporary maintenance. Husband was to pay child support to wife in the amount of $718 per month, but no retroactive support.The Appellate Court affirmed. Because wife had liquidated over $100,000 of retirement funds during the course of the proceedings without husband’s consent (and forged his signature to do so), half of the money liquidated was essentially husband’s as marital property.Therefore, the Appellate Court said the trial court may have concluded this satisfied his temporary support obligation, and thus, no additional temporary support needed to be awarded.Wife’s argument that husband was not entitled to temporary maintenance while they were living under the same roof during the proceedings pursuant to Section 510(c) of the IMDMA was without merit.This provision deals with terminating future maintenance, not past-maintenance, and wife cited no authority which supported the argument that the language cohabitating with “another person” in Section 510(c) includes the current, yet to be divorced, spouse. In re the Marriage of Juris, 2018 IL App (1st) 170545.2. Amended IMDMA did not apply to a child support modification proceeding which was filed and pending prior to January 1, 2016.In a procedurally complex post-judgment proceeding, both the ex-wife and ex-husband had filed competing motions to modify child support.Husband sought to decrease his obligation and wife sought to increase the obligation.Both petitions had been filed in 2013 but did not go to hearing until 2016.Pursuant to 750 ILCS 5/801(c), the amended IMDMA only applies to modification proceedings commenced after January 1, 2016.Because the petitions were pending prior to January 1, 2016, the amended statute did not apply. In re the Marriage of Benink, 2018 IL App (2d) 170175.3. Trial court reversed for applying the 20% threshold modification set forth in 750 ILCS 5/510(a).Wife filed a motion to increase support in 2013, and husband filed a motion to reduce shortly thereafter. The hearings did not take place until 2016, and two children had emancipated during the pendency of the litigation. In evaluating the pleadings, the trial judge performed a “look back” over a period of years to determine what the proper amount of child support should have been paid by the ex-husband due to the fact that the parties’ MSA did not provide for any calculations of support upon the emancipation of any of the minor children. In performing the “look back” the court applied a 20% threshold amount to determine whether there was a substantial change of circumstances.This was in error as Section 510(a) states that the 20% threshold is only to be applied to litigants who are receiving public aid and is a mechanism available to the court to assist in determining whether a modification is warranted for such litigants.The Appellate Court vacated the provisions of the judgment calculating the modified support amounts and did its own calculations under the pre-2016 IMDMA, as such calculations were easily made from the record. In re the Marriage of Benink, 2018 IL App (2d) 170175.4. Trial court reversed for not finding ex-husband in contempt of court for failure to pay child support and comply with other terms of the judgment.In a post-judgment child support modification proceeding where the Appellate Court vacated the trial court’s calculations of modified support and entered an arrearage amount against ex-husband in the amount of $99,638.51, ex-wife appealed the trial court’s denial of her Petition for Rule to Show Cause against husband for his failure to turn over his year tax returns and W-2’s as required by the judgment, and the denial of her request to set child support on the totality of husband’s income which included a signing bonus of approximately $30,000 and consulting income of approximately $6,000.The Appellate Court reversed the denial of the Petition for Rule and remanded for a 508(b) fee hearing.Ex-husband’s suggestions that he merely forgot to repeatedly tender his financial documents each year to wife was not a valid excuse for noncompliance.Further, his noncompliance was financially beneficial to him because he was not timely paying support on his true net income. The exclusion of his signing bonus and consulting income he received in 2012, but never disclose to his ex-wife (and was only discovered by her during the litigation) was also error.The Appellate Court remanded to the trial court for determination of the 40% of the additional net income earned by him since the guideline order in place was for 40% of his net income at the time he receiving the signing bonus and consulting income. In re the Marriage of Benink, 2018 IL App (2d) 170175.5. Indiana law did not bar wife’s interspousal tort action in Illinois.Wife filed a complaint in Illinois against husband for negligence resulting from an automobile accident in Indiana.Husband lost control of the vehicle and struck a concrete wall injuring his wife.There is a prohibition of interspousal tort claims in Indiana. Husband filed a motion to dismiss arguing that Indiana’s statute on the transportation of guests prohibits interspousal tort claims.The Illinois trial court found Indiana law applied and dismissed Wife’s complaint.The Appellate Court reversed and remanded after engaging in a choice-of-law analysis.Illinois courts follow the Second Restatement of Conflict of Laws when a conflict exists between two states law, as it did here between Illinois and Indiana.Illinois has no such prohibition since interspousal tort immunity was abolished in 1988.The Appellate Court held the parties’ domicile was the most important factor and thus weighed in favor of Illinois law applying.Illinois has a stronger interest in regulating the ability of married domiciliaries to bring tort actions against each other which outweighs any interests Indiana has in preventing those causes of action by guests who are merely passing through their state. Hand v. Hand, 2018 IL App (3d) 170275.

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