Sep 01, 2015

IICLE Family Law Flash Points - September 2015

1. Although judgment for dissolution of marriage modified the parties’ marital settlement agreement, it was consistent with requirements of the federal railroad pension program. Ex-wife filed a motion to enforce the terms of a 1998 marital settlement agreement (MSA) regarding her receipt of certain pension benefits she was to receive from ex-husband’s federal retirement pension, specifically benefits commencing on the date her ex-husband retired. However, the judgment entered at the prove-up modified the terms of the MSA she signed and provided that wife’s pension benefits would not start until she reached the age of retirement. The ex-wife was not represented in the divorce proceedings and was not present at the prove-up. The Appellate Court acknowledged that while the language in the judgment was an invalid modification of the MSA since both parties had not agreed to it, the modification was consistent with the requirements of the federal railroad pension. Pursuant to the federal Railroad Retirement Act, which supercedes state divorce laws, the requirements placed in the judgment must be met before wife could begin to receive her portion of the railroad pension. Therefore, the trial court did not err denying wife’s motion to enforce the terms of the MSA. In re the Marriage of Frank, 2015 IL App (3d) 140292.2. A child custody judgment is an independent final, appealable judgment even if the judgment for dissolution of marriage has not been entered. The Appellate Court reversed a trial court’s order declaring wife had not timely-filed her motion to reconsider a custody judgment because she filed it after the court ruled only on the issue of custody, not after the entry of a final dissolution of marriage judgment. The Appellate Court noted that effective February 26, 2010, Supreme Court Rule 304(b) provides that among those judgment that are immediately appealable without special finding include custody judgments. The substance of the order issued after several days of trial was clearly a final custody judgment and therefore the Appellate Court remanded to conduct the hearing on wife’s motion to reconsider. In re the Marriage of Harris, 2015 IL App (2nd) 140616.3. Finding that a pleading is not an emergency is not a substantial ruling on the merits which would prohibit a substitution of judge as a matter of right thereafter. The Appellate Court reversed a trial court’s decision to deny a motion for substitution of judge (SOJ) as a matter of right after the trial court entered an order declaring that ex-husband’s Emergency Verified Petition for Preliminary Injunction to Enforce Joint Parenting Agreement and to Preserve Status Quo was not an emergency and set a briefing schedule and a future hearing date. Ex-wife filed a motion for SOJ as a matter of right after the order finding the petition was not an emergency, but prior to the hearing on the petition. The trial court denied the motion. Approximately 3 years of post-judgment litigation ensued and ex-wife subsequently filed an appeal seeking review of all post-judgment orders. The Court held that an order finding the emergency petition was not an emergency did not rise to the level of expressing his opinion on the relief prayed for in the petition and therefore, no substantial ruling on the merits was made. All orders entered after the denial of the SOJ as a matter of right were therefore void. The Court did not offer any guidance on the practical procedural problems that ensues from over 3 years of orders being declared void, including the fact that a wage garnishment order had been entered in December of 2013. In re the Marriage of Crecos 2015 Ill App (1st) 132756.4. Permanent maintenance award with a fixed termination date of recipient’s 66th birthday reversed. The trial court’s order awarding wife permanent maintenance in the form of periodic monthly payments was in error since the award had a termination date of her 66th birthday which was the time she was eligible for full social security benefits. The Appellate Court held that because the trial court cannot foresee what the future holds for the parties and it could not know what the parties’ financial circumstances will be when wife is 66 years old, permanent maintenance must always be modifiable pursuant to Section 510(c) of the IMDMA. It may only be terminable upon a substantial change of circumstances. Shen v. Shen, 2015 IL App (1st) 130733.5. Denial of contribution of attorneys’ fees and costs pursuant to 503(j) of the IMDMA based on both parties’ inabilities to pay upheld. Wife argued that pursuant to two 4th District cases, In re the Marriage of Haken and In re the Marriage of Price, she did not need to show her inability to pay her fees and her husband’s ability to pay the fees and that the trial court erred when it applied this legal standard to her Petition for Contribution. The Appellate Court upheld the trial court’s denial of the request for contribution and held that the correct precedent is the Supreme Court case of In re the Marriage of Schneider, 214 Ill.2d 152 (2005) wherein the Supreme Court adhered to the long-standing precedent that a spouse petitioning for contribution must show an inability to pay and the ability of the other spouse to pay. Because neither party had the ability to pay their own attorneys’ fees, the petition was property denied. Shen v. Shen, 2015 IL App (1st) 130733.

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