Nov 01, 2015

IICLE Family Law Flash Points - November 2015

1. Despite a relationship for seven years, a biological mother’s former same sex partner lacked standing to petition for visitation with minor child. The First District upheld the trial court’s dismissal of a same-sex partner’s petition seeking visitation with a minor child of her former partner for lack of standing. The petitioner alleged that for approximately seven years the parties acted as co-parents of the child, even after their romantic relationship ended two years after the child’s birth. The petitioner claimed that she continued to maintain a weekly parenting schedule with the child including picking him up from daycare and spending every other week with him. After the relationship ended, the parties discussed guardianship and adoption, but it never came to fruition. The Petitioner asked the Court to apply the equitable adoption to allow her standing to seek visitation. However, under the IMDMA, because Petitioner is not a grandparent, great-grandparent, sibling, or a step-parent (all of whom have standing under Section 607 of the IMDMA) and because the Illinois Supreme Court has clearly held that the concept of equitable adoption does not apply in divorce or parentage proceedings, the petitioner did not have standing to seek visitation. In re the Visitation of J.T.H., 2015 IL App (1st) 142384.2. A finding of contempt regarding husband’s Facebook postings reversed because contempt sanction imposed was criminal and not civil. Husband was found in indirect civil contempt of court after he posted comments on his Facebook page stating that he had intentionally and secretly recorded a hearing in violation of SCR 63(A)(8) and encouraged other litigants to do the same. At a rule to show cause hearing regarding the secret recording, he testified that he had lied on his Facebook page, and he in fact, did not make an illegal recording. The trial court, on its own motion, found him in indirect civil contempt of court for the comments he made encouraging other litigants to break the law, and ordered a purge in the form of an apology on his Facebook page as well as a retraction of his claim to have recorded the hearing. Because the purge was punitive in nature, not coercive, the appropriate contempt standard was criminal, not civil. And because the husband was not afforded all of the constitutional rights and protections afforded to other criminal defendants, the finding of contempt was improper and reversed. In re the Marriage of Weddigen, 2015 Ill App (4th) 150044.3. Maintenance review language in settlement agreement deemed ambiguous and construed against the husband. At issue on appeal was the following language: “Charles shall pay Kimberly maintenance in the sum of $6,200 per month for a period of 60 months at which time the maintenance shall be reviewable upon the filing of a petition prior to the termination of the maintenance.” Wife filed her petition to review the maintenance after the 60 month period and the trial court dismissed it because it was filed after the expiration of the 60 months at which point maintenance had terminated. However, the Appellate Court held the above language was ambiguous in terms of whether the maintenance was actually reviewable or terminable after the 60 months had passed, and construed the language against the husband since he was the drafter of the agreement. Wife’s petition to review her maintenance was allowed to proceed. In re the Marriage of Kuyk, 2015 Il App (2d) 140733.4. Loans incurred by ex-husband to purchase business were only partially deductible from his net income for purposes of modifying child support. Ex-husband appealed the trial court’s child support award of $19,248 per month based on his annual net income of $826,478. He claimed that the trial court erred in not deducting loan payments he made for the purchase of a business as a “reasonable and necessary expenses for the production of income” under Section 505 of the IMDMA. Of significance was the fact that the loan payments were made to the ex-husband’s father from whom he had purchased the business. The trial court gave a partial deduction of the overall loan payment (interest but not principle), but did not deduct the full amount and noted that the payments were extraordinarily high and that pre-payment had also occurred. The Appellate Court affirmed the award and held that in determining what expenses are reasonable and necessary, a court may properly conclude that such expenses are only partially deductible. The loans ex-husband incurred clearly benefitted himself financially, and thus potentially his children as well because they allowed him to earn a significantly greater income. In re the Marriage of Hill, 2015 Il App (2d) 140345.5. Guideline support award on annual net income of $826,478 upheld. On a petition to modify child support, father appealed the guideline support award in the amount of $19,284 on $826,478 of annual net income claiming that the court should have deviated downward. The evidence showed that father owned a home in Naperville, two vacation homes, seven cars, and over $1 million in savings as well a base salary of $500,000. The mother, who was the children’s primary residential parent, earned $35,000 per year and still lived in the former marital residence, which had gone into disrepair because she did not have enough funds to maintain it. Because the trial court could have reasonably determined that had the parties stayed married the children would have enjoyed a high standard of living, the award was not an abuse of discretion. In re the Marriage of Hill, 2015 Il App (2d) 140345.

News and Insights

Jun 11, 2024

How Prior Planning Prevents Poor Performance

Everyone loves a June wedding! When people ask a couple on the brink of their vows how ...
May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.