May 01, 2016

IICLE Family Law Flash Points - May 2016

1. Attorneys’ fees are not equivalent to “lost wages” for a pro se litigant under 508(b). The trial court found both parties in contempt after a hearing on cross petitions for rules to show cause. The court awarded the petitioner, who was pro se, her lost wages for the time she spent preparing and arguing her petition and awarded the respondent his attorneys’ fees. The Appellate Court reversed because the court lacked authority to make an award to petitioner based on her lost wages. Section 508(b) only references attorneys’ fees and does not authorize an award of lost wages or similar compensation. The Court noted that although a pro se litigant might suffer economically by spending time on her case, that this was a matter for the legislature to consider. In re the Marriage of Pickering, 2016 IL App (2d) 150898.2. Change of minor child’s surname reversed in parentage action. The trial court ordered that the child’s surname be changed from mother’s surname to father’s surname, at father’s request. The Appellate Court reversed because under Section 21-101 of the Code of Civil Procedure, a change in the name of a child is permitted “only if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child.” The trial court only heard evidence from the father that “there was no reason for my name not to be up there.” Mother argued that she gave the child her surname because the father was present only sporadically during her pregnancy and she knew she would always be there for the child. The Court noted that the trial court could have advanced the goal of including both parents’ surnames by adding father’s surname as an additional middle name and the desire to include both parents’ surnames did not necessarily mean that changing the child’s surname was necessary. In re Tate Oliver B,. 2016 IL App (2d) 151136.3. Child support ordered from custodial parent to noncustodial parent upheld. In a parentage case, father sought and was awarded sole custody of his daughter post-judgment. He then moved to terminate his support obligation and set a support obligation of the mother. There was a vast disparity in incomes between the two parties as father’s gross income in 2014 was $933,000 and mother’s was $9,500. The father was paying $5,000 per month in child support when he sought the termination. The trial court denied the termination but reduced the monthly amount to $4,000 per month. Father appealed and the Appellate Court upheld under In re the Marriage of Turk 2014 IL 116730 which held that section 505 confers on courts the option to order either of both parents owing a duty of support to pay an amount reasonable and necessary for the child. The father argued that the court did not have authority to award the mother support when she did not have a petition on file. However, the Court stated she was not obligated to file a new petition for support as an order was already in place that the father had moved to modify via termination. The Appellate Court also modified the trial court’s order to impose a $10 per month minimum support obligation on the mother pursuant to section 14 of the Parentage Act. McClure v. Haisha, 2016 IL App (2d) 150291.4. Husband barred from presenting documents at trial to substantiate his non-marital claim when documents were not produced in discovery. At issue at trial on a petition for dissolution of marriage was the marital and non-marital values of husband’s retirement account, ESOP plan, phantom stock and certain subordinated notes. The record reflected that wife struggled throughout the discovery phase of the case to obtain certain historical documents relating to the aforementioned assets in order to have her expert opine on the marital and non-marital values at trial. Therefore, at trial her expert testified as to what the value of the assets were on the date of the marriage, but could not with certainty say how much of the appreciation (several hundreds of thousands of dollars) was non-marital because husband failed to produce all of the necessary statements. Her expert opined that the totality of the increase in value was marital. After wife’s expert testified, husband later moved to admit the “missing” statements into evidence. He claimed he had requested them a number of times but only received them a week prior. The court barred the statements from coming into evidence noting that wife had requested the statements on numerous occasions and it was patently unfair to admit them after her expert had testified. The Appellate Court upheld. In re the Marriage of Faber, 2016 IL App (2d) 131083.5. Trial court’s classification of property as marital absent husband proving it to be non-marital and division of marital estate 55/45 upheld. In a case where husband was barred from admitting into evidence certain statements mid-trial to attempt to argue that portions of his retirement, ESOP, phantom stock and certain subordinated notes were non-marital, the Appellate Court upheld the trial court’s allocation of the marital estate 55/45 in wife’s favor and held that trial court properly burdened husband with proving the appreciation in value of the aforementioned assets were his non-marital property. The record reflected that the assets existed in some form prior to the marriage – presumptively non-marital property. However, because the parties attached a balance sheet to their trial stipulations and noted that certain funds were “subject to non-marital reimbursement claim,” husband and wife had agreed under 503(c) that husband’s non-marital estate would be burdened with proving a claim for reimbursement. Husband could not prove his claim due to the sanctions imposed on him for his failure to comply with discovery so the 55/45 allocation of the assets was upheld as well as the marital character of several of the assets. In re the Marriage of Faber, 2016 IL App (2d) 131083.

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