Nov 01, 2017

IICLE Family Law Flash Points, November 2017

1. Relocation to New Jersey denied.In a parentage case, mother filed a petition for relocation of a four-year old boy to New Jersey due to her new husband’s employment and father objected.The trial court denied the relocation after a trial and mother appealed.The Appellate Court affirmed after a lengthy analysis of each factor enumerated in Section 609.2 of the IMDMA.While the seminal cases of In re the Marriage of Eckert, 119 Ill.2d 316 (1988) and In re the Marriage of Collingbourne, 204 Ill.2d 498 (2003), are still applicable to relocation cases after the 2016 amendments to the IMDMA, it noted a distinction between the first Eckert factor and the new statute.Mother argued that the trial court erred in not giving enough weight to the factor under Eckert which directed the court to consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the child.Although the trial court was presented with a great deal of evidence suggesting that mother’s general quality of life would be enhanced due to her new husband’s enhanced employment and their enhanced living arrangements, it chose to focus on whether the quality of the minor child’s life was to be enhanced.The Appellate Court held that this was the right approach given the enactment of the factors set forth in Section 609.2 which modified the first Eckert factor to only reference the best interests of the child, not the custodial parent. In re Parentage of P.D., 2017 IL App (2d) 170355.2. Modification of notice provision for visitation denied.In a post-judgment matter, the trial court declined to modify a five day notification provision in the parties’ Joint Parenting Agreement and the Appellate Court upheld.Father sought modification to a provision which required him to give five days notice for any changes or cancellations to his visitation time due to his changing work schedule.The evidence at the hearing showed that father’s last minute changes were often social events for clients.The trial court found father to be not credible and that he was abusing the notice requirement in an attempt to be controlling and manipulative towards mother.The trial court acknowledged the importance of father’s employment duties, but also recognized the importance of father balancing his employment obligations with his visitation obligations. In re the Marriage of Tworek, 2017 IL App (3d) 160188.3. Deviation downward on guideline child support not appropriate.In a post-judgment support modification case decided under the pre-amendment statute, father appealed the trial court’s denial of his request for a downward modification on guideline support on the basis that it was a windfall to the mother and the Appellate Court affirmed.Father argued that his highest income during the marriage was $96,000; that in 2015 his income was $207,000; and that he thought 28% of that amount greatly exceed the children’s expenses.Although at the time of the hearing he testified he was living frugally and living in a shared home saving money for a house, the trial court found that the father intentionally reduced his expenses on his financial affidavit in an attempt to support his claim that he was living modestly, but he was purchasing an automobile for cash and accumulating savings.To the contrary, mother earned $75,000, drove an older vehicle, deferred maintenance on her own just to make ends meet, and was not able to save any money.The Court also upheld an award of a contribution of attorneys’ fees in favor of mother. In re the Marriage of Tworek, 2017 IL App (3d) 160188.4. Ex-wife properly placed a lien on deceased ex-husband’s home held in a land trust for unpaid child support.After a series of court appearances where husband was held in indirect civil contempt of court for failure to pay child support and comply with a number of provisions of the parties’ Marital Settlement Agreement, wife recorded a lien on husband’s home, which was held in a land trust, in the amount of $24,530.Husband later died, and when the house was to be sold, the lien was discovered by his executor who filed an emergency motion to release the lien.After a series of contested hearings involving whether the lien was proper and perfected since the property was held in a land trust (and thus husband’s property interest was one of personal property, not a real property), the trial court ultimately released the lien.Wife appealed.The Appellate Court held that it need not decide the nature of husband’s interest in the property for purposes of attachment of the lien because Section 505(d) of the IMDMA provides that a lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed. The Court concluded wife had placed a valid lien on the property and notified husband of the lien.Therefore, the lien was still valid.The Appellate Court reversed and remanded for further proceedings to determine what, if any, amount wife was to be entitled to upon the sale of the property. In re the Marriage of Campbell, 2017 IL App (2d) 170171.

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