Sep 05, 2017

IICLE Family Law Flash Points, September 2017

1. Plenary Order of Protection Upheld.The trial court issued a plenary order of protection against mother’s new husband after father petitioned for such order and alleged that mother’s new husband physically and sexually abused their seven and four year old daughters. At the hearing, a caseworker from the Pediatric Resource Center (PRC) in Peoria, father, paternal grandmother, and the responding police officer testified.Prior to the plenary order being entered, an emergency order of protection had been entered and continued several times.Father was originally granted emergency custody of the children and later mother, who was the custodial parent under the parties’ judgement, regained custody.However, the emergency order provided if mother’s new husband ever moved back in with her, the children’s father would be awarded custody.Mother’s new husband appealed the plenary order arguing that the caseworker’s testimony was inadmissible hearsay.The Appellate Court disagreed and affirmed the plenary order. The Court reasoned that the trial court properly admitted the children’s hearsay statement about the abuse via the caseworker’s report under Section 606.5(c) of the IMDMA (750 ILCS 5/606.5(c)) which provides that a child’s hearsay statement about abuse is admissible in a hearing regarding either custody or visitation.The Court chose to follow the reasoning in In Daria W. V. Bradley W., 317 Ill.App.3d (3rd Dist. 2000).The order of protection impacted the children’s custody and continued to affect it during the pendency of the order of protection.Because the IMDMA was the correct statute to use in determining the admissibility of the hearsay evidence, not the Domestic Violence Act, the trial court was not required to conduct a hearing to determine the reliability of the children’s hearsay statements as it would be required to do under 750 ILCS 60/205(a). Travas Countryman v. Norman Racy, 2017 IL App (3d) 160379.2. Section 2-1401 petition denied due to ex-husband having knowledge of ex-wife’s bank account in question.In a post-judgment action, ex-husband appealed the denial of his Section 2-1401 motion to vacate an agreed order which modified the maintenance provisions in the parties’ judgment for dissolution of marriage.The Appellate Court affirmed.At issue was the final payment in the amount of $150,000 due to wife out of a total of $500,000 due to her under the modified order.Ex-husband argued that his ex-wife had fraudulently concealed the existence of a $500,000 bank account at the time the parties had mediated the agreed order.Ex-wife responded that the funds in the account were a loan from her son for living expenses which was supported by an affidavit from her son, handwritten promissory notes, and a restated trust which called for the repayment of the loans upon her death.The Court reasoned ex-husband had failed to establish fraudulent concealment because he had subpoenaed Chase twice during the proceedings and had knowledge of the bank account in question.Furthermore, ex-wife’s disclosure statement showed more than $100,000 in outstanding loans from her son and the mediation report stated that she was borrowing money for living expenses.At the three day hearing on the 2-1401 motion, ex-husband admitted that during mediation he probably saw his ex-wife’s disclosure statement showing the loans, that he did not ask his son about the transactions, and that he actually gained knowledge of the concealment after he had filed his petition.The trial court also found him to be not credible. Because he knew of the account he claimed ex-wife fraudulently concealed and failed to conduct any follow-up discovery, he was precluded from claiming fraud. In re the Marriage of Benjamin, 2017 IL App (1st) 161862.3. Payor met burden of providing substantial change of circumstances to lower child support award even though change occurred prior to entry of judgment.The Appellate Court affirmed the trial court’s downward modification of father’s child support obligation from $4,053 per month to $1,828 per month and mother appealed.The original child support award was set at a prove-up hearing where father did not appear.The trial court calculated, to the best of its ability, father’s net income based on the information it had which included statements from a business bank account for a business he owned and a tax return. The court calculated his net income at $152,000 and applied the 32% guideline formula.Father later moved to reduce his child support based on his actual net income which only included W-2 wages in the amount of $97,000 annually.At the hearing, he testified that he was no longer running his business because it was not making money.He also testified that he had actually stopped working the business around the time his wife had filed her Petition for Dissolution of Marriage.The Court disagreed with wife’s argument that husband could not argue a substantial change of circumstances because the reduction in his income actually occurred prior to the entry of judgment.The trial court was bound by its prior finding that his net income was $152,000.The evidence during the modification hearing showed that husband’s current net income was approximately $74,000. On this basis alone, the husband met his burden of proving a substantial change in circumstances.The Appellate Court also upheld the trial court’s refusal to impute additional income to husband. In re the Marriage of Sorokin, 2017 IL App (2d) 160885.

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