Oct 01, 2013

IICLE Family Law Flash Points - October 2013

1. Custodial parent ordered to pay child support to noncustodial parent. In a post-judgment matter, father was awarded sole custody of the parties’ two children and sought to terminate his child support payments. Under the modified parenting schedule, mother had approximately equal parenting time with the youngest child and a strained relationship with the eldest child so that she saw him only once a week for dinner. The trial court ordered the father to pay $600 per month in support to the mother and father appealed. The Appellate Court upheld the trial court’s authority to order the father, as the custodial parent, to pay child support to the mother relying on the case of Cesaretti, 203 Ill.App.3d at 356, which held that the trial court could award support to a noncustodial parent when both parents have significant parenting time and there is a disparity of income between the two parents, which there was in this case. In re the Marriage of Turk, 2013 IL App (1st) 122486.2. Creation of child support trust upheld. In a unique set of facts, the Appellate Court granted an interlocutory appeal regarding whether the trial court could establish a child support trust after the wife had taken the children to Uruguay and refused to return despite court orders to do so. Pursuant to the parties’ judgment, husband was ordered to pay wife child support for the parties’ two children, one of whom has special needs. After wife took the children to Uruguay, husband moved to abate support on the grounds that his child support payments enabled her to continue to violate the court’s orders and stay in Uruguay. The trial court ordered that he continue to make the support payments but that he do so through a trust account that neither party would be allowed to make any withdrawals from without court order authorizing same. The Appellate Court upheld the ruling holding that the support trust was proper because it did not relieve husband of his support obligation and did not impermissibly link the child support to the suspension of his visitation rights. Popa v. Garcia, 2013 IL App (1st) 130818.3. Maternal grandfather’s grandparent visitation petition dismissed. Pursuant to the grandparent visitation statute, a maternal grandfather petitioned for visitation with his grandchild against his daughter and the father (the parents) of his grandchild. The parents filed a motion to dismiss which was granted and upheld by the Appellate Court. The pertinent section of 750 ILCS 5/607 which was the focus on appeal was whether the grandfather met the following requirements of the statute in order to bring a proper claim: “the child is born out of wedlock, the parents are not living together, and the petitioner is a maternal grandparent, great-grandparent or sibling of the child born out of wedlock.” The parents filed sworn affidavits that they were currently living together. The grandfather did not provide evidence to contradict the sworn statements, and therefore the ruling was upheld. Pruitt v. Pruitt and Barrett, 2013 IL App (1st) 130032.4. Uncorroborated hearsay statements made by a six-year old child not enough to support a finding of abuse. In a contentious post-judgment visitation case, mother as sole custodian, moved to terminate visitation because of alleged sexual abuse by the father during his visitation. After a lengthy evidentiary hearing the trial court denied mother’s motion and increased father’s visitation. The Appellate Court upheld the trial court’s ruling holding that while the six-year old child’s statements were admissible hearsay under Section 606(e) of the IMDMA, because they were uncorroborated they were insufficient to support a finding abuse. The trial court also denied a motion for an in camera interview of the child, which was also upheld, as well as a ruling to admit a videotape of the father and the child interacting with each other. The videotape was excluded as evidence of the truth of the matter asserted with respect to the words spoken by the child, but admitted for the purpose of demonstrating the child’s reaction to the father by virtue of her actions exhibited in the video. In re the Marriage of Agers, 2013 IL App (5th) 120375.5. Noncustodial parent ordered to pay guideline child support plus 20% of daycare and extracurricular activities not an abuse of discretion. On appeal, the wife challenged the trial court’s ruling that father should only be ordered to pay 20% of daycare and extracurricular activities (in addition to guideline child support for three children) instead of the 40% that the court had previously ordered before it modified its order upon a motion to reconsider. Based on the costs estimated by the wife, after adding the 40% amount to husband’s child support obligation he would have paid 50% of his net income to support, daycare and extracurricular activities. By reducing the amount to 20%, he would now pay 40% of his net income. This was an upward deviation from guideline support but the Appellate did not find it to be an abuse of discretion because the amount ordered was supported by the record and the trial court explained why it ordered such amount. In re the Marriage of Carlson-Urbanczyk, 2013 IL App (3d) 120731.6. Missed visitations did not constitute willful contempt of court due to timing of orders. In a second post-decree contempt proceeding initiated by a father for the mother’s alleged violations of a visitation order, the Appellate Court upheld a trial court’s finding of “no contempt” due to a timing issue. Father filed a first contempt action alleging mother failed to provide the children for visitation and the trial court found that the mother had not committed contempt. The father appealed that ruling. While the Appellate Court was ruling on the first appeal (wherein it later found that the mother did commit contemptuous behavior), father filed a similar second contempt action in the trial court which is the subject of the current appeal. At issue in both cases were the difficult circumstances where the children did not want to have visitation with their father because it interfered with commitments such as activities, jobs, and seeing friends. Because mother was informed by the trial court in the first action that her previous behavior was not contemptuous, it was reasonable for her to continue to operate under this belief. Therefore, the Appellate Court affirmed the finding of no contempt, but noted that now that the mother was aware of the Appellate Court’s ruling in the first action, it expected she would know that any new violations may be considered contemptuous behavior. In re the Marriage of McCormack, 2013 IL App (2d) 120100.7. Award of sole custody to father upheld despite stay-at-home mother’s desire to be named sole custodian. The Appellate Court upheld a trial court’s ruling that husband be awarded sole custody of the parties’ minor child despite the fact that wife had been a stay-at-home mother for the vast majority of the child’s life and had an intense desire to be awarded sole custody. The evidence strongly supported the notion that the parties could not effectively co-parent the child together. The 604(b) evaluation recommended custody be awarded to husband and noted a significant difference in the child’s interaction with each parent. Wife was found to be fearful, anxious and overprotective the child. She also showed very little evidence that she could facilitate a relationship between the father and the child. The Court also upheld the exception to the hearsay rule with respect to the 604(b) report and the underlying witness statements relied up in reaching the conclusions contained therein. Lonvick v. Lonvick, 2013 IL App (2d) 120865.

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