Oct 01, 2016

IICLE Family Law Flash Points - October 2016

1. Imputation of income to husband was appropriate when setting maintenance award. In setting a maintenance award, the trial court imputed income to husband of approximately $70,000 from farming which he had historically earned during the marriage. Husband appealed claiming that the farming income varied from year to year, was not guaranteed, and that he had not planted a current crop that would yield additional income. The Appellate Court affirmed the trial court. The evidence showed that husband was a farmhand earning a salary of $42,000 per year while wife earned $10.60 per hour working at a nursing home. Husband also independently farmed crops prior to the divorce and had earned between $70,000 and $78,000. The parties’ marital residence, where husband resided, was paid for by his employer and as were most of the utilities and a car that he used for both work and personal reasons. The Court stated it was proper to impute husband’s farming income for purposes of setting maintenance because the trial court should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work. The trial court had also found that husband had voluntarily discontinued farming in light of the divorce and in an attempt to evade his support obligation. The Appellate Court also affirmed the amount of the maintenance award which was $2,000 per month. In re the Marriage of Blume, 2016 IL App (3d) 140276.2. New maintenance guidelines under January 1, 2015 amendments to IMDMA maintenance provision should not be applied retroactively. The trial court ordered husband to pay wife $2,088 per month in maintenance. Husband appealed claiming that the court should have applied the new maintenance guidelines that took effect January 1, 2015 which would have resulted in an award of $1,328 per month. In this case, the hearing took place and proofs closed on October 24, 2014, before the new maintenance statute took effect. The trial court took the case under advisement and did not rule until after January 1, 2015. Just because the matter was taken under advisement but not ruled on until 2015 does not warrant retroactive application of the law. In re the Marriage of Cole, 2016 Il App (5th) 150224.3. Inadequate bystanders report renders record on appeal inadequate for Appellate Court to rule. Mother was found in indirect civil contempt for her failure to bring minor child to Illinois for visitation with father over the Thanksgiving holiday. The proceeding was not transcribed, but the court issued an order holding mother in contempt and sentenced her to jail with a purge amount of $10,000. The court also denied mother’s motion to stay the proceedings on the same day. Several months later, the court and counsel appeared and put on the record a summary of what happened at that hearing because the court did not want to certify the bystander’s report that was submitted. Mother then submitted this record as her bystander’s report in the Appellate Court. However, the report was improper because Supreme Court Rule 323(c) contemplates a collaborative process for the generation of a bystander’s report, including that the appellant serve the appellee with a copy of the proposed report. The record showed that father was not in court when the retroactive summary record of the hearing took place and there was no indication that the mother provided father with her proposed bystander’s report. Therefore, the trial court erred when it certified the bystander’s report. Because the report was invalid, the judgment of the trial court was affirmed. In re the Parentage of G.E., 2016 IL App (2d) 150643.4. UIFSA does not create a duty of support and cannot be utilized to establish an initial child support order if Illinois statutory authority does not provide for such an order. The Department of Healthcare and Family Services (Department) filed a “uniform support petition” on behalf of a mother, a resident of Mexico, against the father of their two children, a resident of Illinois. The record showed that the mother and father were married in Mexico in 1996. Section 303 of UIFSA requires a trial court to rely upon the law of the forum state to determine whether the respondent owes a duty of support. Because no dissolution of marriage proceeding was on file, the IMDMA did not grant authority for a support order to be entered. The Parentage Act did not apply because no determine of parentage was being sought and any determination would involve a custody judgment which is prohibited by UIFSA. Finally, the Public Aid Code also did not apply because the Department was not enforcing a child support obligation. Therefore, the trial court properly dismissed the Department’s petition. Department of Healthcare and Family Services v. Arevalo, 2016 IL App (2d) 150504.

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