Sep 01, 2013

IICLE Family Law Flash Points - September 2013

1. Costs incurred for supervised visitation upheld as dissipation of assets. In a contentious divorce action, wife brought allegations of physical and emotion abuse against husband, including specific allegations against the children which resulted in husband having supervised visitation for three months. After investigations by DCFS, the appointment of a Child Representative, and the issuance of a report by a 604(b) evaluator who labeled wife as “delusional,” the court reversed the supervised visitation order and granted temporary custody of the children to husband. The trial court then ruled that the supervised visitation costs were dissipation because the supervision was necessitated by wife’s false claims and her coaching of the children to make false statements against the husband. The Appellate Court upheld concluding that the evidence established that but for wife’s false allegations against husband, the supervised visitation costs would not have been incurred. In re the Marriage of Patel and Sines-Patel, 2013 IL App (1st) 112571.2. Money wife received from parents to pay for attorneys’ fees and costs was a gift, not marital debt. On appeal, wife argued that the trial court’s finding that approximately $170,000 she received from her father was a gift rather than a loan was incorrect. The only evidence relevant to this issue was the wife’s testimony and she was found not to be credible. The Court further stated that although wife argued she could not present any documentation at trial regarding the issue because the trial court had entered sanctions against her, the sanctions did not prevent wife from calling her father as a witness to testify as to his intent in providing the money. In re the Marriage of Patel and Sines-Patel, 2013 IL App (1st) 112571.3. Award of maintenance in gross upheld. The Appellate Court upheld a trial court’s order of maintenance in gross in the amount of $210,000 payable to wife over a 30 month period. At the time of trial wife earned $14,500 per year from two part-time jobs and husband earned $475,000. The parties had been married approximately ten years (including two years of protracted litigation). Wife had a B.A. in psychology and a law degree although she never took the bar exam and made no effort to use her advance degrees to obtain full-time employment. The Appellate Court upheld the award even though it recognized that absent exceptional circumstances, periodic maintenance is the judicially preferred form of maintenance. Although wife claimed that the award was intended to punish her for her discovery violations and false allegations of abuse against husband, the record reflected that the trial court was attempting to end the destructive litigation between the parties by seeking to limit future opportunities for litigation. In re the Marriage of Patel and Sines-Patel, 2013 IL App (1st) 112571.4. Attorneys’ Fees awards to multiple prior counsel in contentious litigation upheld. The trial court ordered wife to be responsible for the fees incurred by her at three different law firms during contentious pre-judgment litigation. Among her arguments against paying the fees were that she received very little benefit from the work; that the firms failed to timely answer discovery requests; that the work done was unnecessary because it did not benefit her; and the firms failed to prepare for trial but instead tried to settle her case on terms that they knew would never be acceptable to her. However, there was ample evidence that wife failed to cooperate or communicate with her various attorneys and that her father’s participation in the litigation contributed a great deal to the amount of fees incurred. The Appellate Court also upheld the trial court’s denial of a request for contribution towards her fees from husband and an order for her to contribute to husband’s fees. In re the Marriage of Patel and Sines-Patel, 2013 IL App (1st) 112571.5. Husband’s bonus partially accrued during the marriage not marital property. In a matter of first impression, the First District has held that an unvested, discretionary bonus from employment received after the entry of a judgment for dissolution of marriage is not marital property. The trial court found that the bonus was not property at all, but rather a mere expectancy and the Appellate Court affirmed. The decision turned on the fact that husband (the bonus recipient) did not have a contractual right to receive a bonus via an employment contract. Rather, his bonus was discretionary and among other items determinative upon the company’s performance and other factors unrelated to the husband’s work. The Court distinguished this from an employee’s contractual right to pension benefits which partially accrues during a marriage, and therefore, gives rise to marital property rights. In re the Marriage of Wendt, 2013 IL App (1st) 123261.6. Illinois action for divorce not stayed due to similar action pending in India. The Third District accepted an interlocutory appeal regarding whether an Illinois action for divorce should be stayed due to a pending divorce action in India. The Court held that the action should not be stayed due to a pending foreign action under the doctrine of forum non conveniens, comity, or in order to avoid duplicative litigation. Husband filed by proxy a petition for divorce in India two days before wife filed in Illinois. The parties were both residents of Illinois and their child was born in and continued to reside in Illinois, although both parties remained citizens of India. Husband’s parents also filed two criminal charges on his behalf in India against wife for adultery, and if convicted, she could face up to two years in prison. The Appellate Court noted that it has previously held that Section 2-619 of the Code of Civil Procedure does not apply to a divorce action pending in a foreign country and that the full faith and credit clause of the Constitution does not require Illinois courts to recognize or enforce decrees of foreign countries. Furthermore, the Uniform Foreign Money-Judgments Recognition Act does not apply to divorce judgments entered by foreign courts. Finally, the Court evaluated the doctrines of foreign non conveniens and comity and held that the relevant factors did not weigh in favor of dismissing the Illinois action just because there was a pending action in India. In re the Marriage of Deepalakshmi and Murugesh, 2013 IL App (3d) 110228.

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