Dec 01, 2014

Top Ten Family Law Flash Points of 2014

1. Illinois Supreme Court holds that the omission of a payor’s social security number results in an invalid notice to withhold. The Illinois Supreme Court has upheld the Second District Appellate Court’s ruling in Schultz v. Performance Lighting, Inc. 2013 IL App (2d) 120405 that the failure of a notice to withhold child support (Notice) served upon an employer which does not include the social security number of the employee obligor makes the Notice invalid under 750 ILCS 28/20(c), and thereby does not subject the employer to the $100 per day penalty for failure to comply with the withholding. The Supreme Court reasoned that the Notice at issue was statutorily deficient because 750 ILCS 28/20(c) unequivocally requires that the obligor’s social security number be included without exception. The Court also stated that this ruling comports with the same standards of the federal Child Support Enforcement Act and noted the importance of maintaining consistency in the interpretation of the statutes for employers who are obligated to deduct child support from their employees’ paychecks. Schultz v. Performance Lighting, 2013 IL 115738.2. Illinois Supreme Court holds that the State’s failure to file notice pleading under the Adoption Act did not prejudice mother. In child protection proceedings, the State filed a petition for termination of mother’s parental rights. The trial court found the mother unfit under section 1(D)(m)(iii) of the Adoption Act and the Appellate Court reversed. The plain language of Section 1(D)(m)(iii) of the Adoption Act states that a basis for termination of parental rights is the finding of “unfitness” of a parent who fails to make reasonable progress towards the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglect and abuse. In 2006, the legislature amended the statute to provide that a petitioner in such a case “shall file and serve with the court and serve on the parties a pleading that specifies the 9-month period or periods relied on.” The State did not follow this procedure but the Supreme Court held that its amended petition was sufficient to state a cause of action to inform the mother as to the nature of the neglect charge because the petition specified the initial 9-month period following the adjudication of neglect and it was apparent from the record that the mother understood exactly what 9-month periods were at issue. Therefore, the State’s failure to file a separate notice was a pleading defect, not a failure to state a cause of action. In re S.L., 2014 IL 115424 (2014).3. Illinois Supreme Court rules 604(b) evaluator fees are not court costs under the Code of Civil Procedure. The Supreme Court has reversed the Appellate Court’s ruling in In re the Marriage of Tiballi, 2013 IL App (2d) 120523, which assessed the father with all of the custody evaluator’s fees as court costs after he chose to not pursue his post-judgment Petition for Change of Custody after reviewing the evaluator’s opinion. Recovery of costs is completely dependent on statutory authorization, and while Illinois statutes provide the plaintiff is entitled to recover costs where any action is voluntarily nonsuited or dismissed for want of prosecution, the statutes do not provide a definition of what entails “costs.” Applying the rule set out in Vicencio v. Lincoln-Way Builders, Inc. 204 Ill.2d 295 (2003), the Court held that the 604(b) fees did not qualify as “court costs” under the Code of Civil Procedure which are typically fees assessed by the court, such as filing fees, courthouse fees, and reporter fees. The Court also noted that Section 604(b) of the IMDMA specifically provides that the court shall “allocate” the costs and fees of the evaluator while court costs are not subject to allocation among the parties. Therefore, the Court remanded the case back to the trial court to allocate the evaluator’s fees in accordance with the terms of Section 604(b). In re the Marriage of Tiballi, 2014 IL 116319.4. Illinois Supreme Court upholds decision providing for custodial parent to pay child support to noncustodial parent. The Illinois Supreme Court affirmed both the trial court and Appellate Court’s decision to order a custodial parent (father) to pay child support to the noncustodial parent (mother). The Court reiterated the long-standing rule that the support of a child is the joint and several obligation of both parents and that the plain language of Section 505 expressly confers the courts with the option to order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child. Illinois law does not confine the obligation of paying support to noncustodial parents. The Court also opined on a situation where a parent who is technically a noncustodial parent has visitation rights with the child that may equal or exceed the time the custodial parent has with the child, as was the situation in this case. The noncustodial parent may not have the financial resources to meet the substantial support costs which are to arise from such an extensive visitation schedule and could ultimately leave the noncustodial parent in a situation where he or she has insufficient resources to care for the child in a manner comparable to that of the wealthier parent. Therefore, a trial court may order the custodial parent to pay support to the noncustodial parent where circumstances and the best interest of the child warrant it. Father also argued to the Supreme Court that the trial court abused its discretion when it arbitrarily ordered him to pay $600 per month in support. But the Court held that issue was not properly before it because the Appellate Court had reversed the trial court’s ruling and remanded for an evidentiary hearing with directions to explain the basis for any support award. The Court reversed the portion of the Appellate Court’s decision upholding upheld the trial court’s order requiring father to pay the full amount of any of the children’s medical and dental expenses and requested the trial court revisit that issue when it reconsidered the support obligations. In re the Marriage of Turk, 2014 IL 116730.5. New maintenance statute sets guidelines for cases where the parties’ combined gross income is $250,000 or less. The new maintenance statute which goes into effect on January 1, 2015, creates permissive guidelines for the trial court to apply in situations where the parties’ combined gross incomes are $250,000 or less and no multiple family situations exist. Pursuant to the amendments, in all cases the court must first determine if maintenance is appropriate under the factors enumerated in Section 504(a). If the court makes such a finding, it then turns to the guidelines to make the calculation by: (1) taking 30% of the payor’s gross income less (2) 20% of the payee’s gross income. However, the maintenance award may not result in the payee receiving a total that is in excess of 40% of the combined gross income after the maintenance payment is made. The duration of the maintenance is calculated by multiplying the length of the marriage by whichever factor applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage longer than 20 years the court has discretion to order either permanent maintenance or maintenance for a period equal to the length of the marriage.6. Preponderance of evidence standard is applicable in removal cases. In a parentage matter, the trial court was reversed for applying the “clear and convincing evidence” standard when evaluating whether removal of the minor child from Illinois to California was in the child’s best interest. The mother had filed a petition for removal due to a change in employment but the trial court ruled that she had not sustained her burden of proving by clear and convincing evidence that the proposed removal was in the child’s best interest. The Appellate Court noted that while Section 609 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) places the burden of proof on the party seeking removal, it is silent as to the standard of proof. Although father argued that the clear and convincing standard imposed by Section 610 of the IMDMA for custody modifications should apply to this case, the Court held that a removal petition, while related to custody, is not a petition to modify custody. Therefore, the preponderance of the evidence standard is applicable to removal cases – not clear and convincing evidence. In re Parentage of Rogan M., 2014 IL App (1st) 141214.7. The approach in Illinois for resolving a dispute over the disposition of pre-embryos is to honor the parties’ mutually expressed intent. As a matter of first impression, the Appellate Court dealt with the issue of who controls the disposition of cryopreserved pre-embryos created with one party’s sperm and another party’s ova when the relationship between the parties ends. After an extensive analysis of the approaches employed by other states, the First District chose to employ the “contractual approach” which provides that court will enforce contracts governing the disposition of the pre-embryos as long as they do not violate public policy. However, when there is no advance agreement regarding the disposition of the pre-embryos, then the “balancing approach” should be used where the relative interests of the parties in using or not using the pre-embryos must be weighed. The Court declined to follow the “mutual consent approach” which provides that no embryo should be used by either party, donated to another patient, used in research, or destroyed, without the mutual consent of both parties who created the embryo. The Court noted that Iowa is the only state currently which follows the mutual consent approach. The reason for adopting the contractual approach is that it allows the parties, rather than the courts, to make their own reproductive choices while also providing a measure of certainty necessary to proper family planning. Szafranski v. Dunston, 2013 IL App (1st) 122975.8. Husband did not transmute his nonmarital inheritance into marital property by depositing it into a checking account containing marital property. Husband opened a Scottrade account in his own name during the marriage as well as a Chase checking account, also in his sole name. He deposited both his employment earnings and inheritance income into the Chase account. Thereafter, he would routinely transfer funds from the Chase account into the Scottrade account. At trial he corroborated the specific transfers through both testimony and bank statements. The trial court ruled that the Scottrade account was marital property and the Appellate Court reversed relying heavily on the cases of In re the Marriage of Heroy, 385 Ill.App.3d 640 and In re the Marriage of Steel, 2011 Il App (2d) 080974. The Court held that just because both marital and nonmarital income are commingled in one account does not necessarily establish that the nonmarital inheritance income was transmuted into marital property under 503(c)(1) of the IMDMA. Because husband’s inheritance income was easily identifiable in the Chase account and his marital income was exhausted each month after he paid his temporary support obligations, the funds remaining in the Chase account must constitute his nonmarital income. Furthermore, because the transfers to the Scottrade account were made within days of the deposits into the Chase account, the Chase account merely acted as a conduit for husband to deposit the money and then transfer a portion of his inheritance to the Scottrade account. In re the Marriage of Foster, 2014 IL app (1st) 123078.9. Correlative orders of protection are permitted under the Domestic Violence Act, and therefore wife’s Petition for Order of Protection should not have been dismissed. In a matter of first impression, the Appellate Court held that while the Domestic Violence Act (DVA) prohibits mutual orders of protection, it allows for correlative orders, and therefore the DVA did not require that the trial court dismiss the ex-wife’s Petition for Order of Protection just because the ex-husband had already received an order of protection against the ex-wife. In its decision the Court distinguished mutual and correlative orders. Mutual orders typically occur within the same document, arise from a singular pleading and proceeding even though one party did not even desire an order of protection, and are clearly prohibited under the DVA. By contrast, correlative orders are allowed under the DVA and arise from separate pleadings, notice and proof of abuse by each party seeking a separate order of protection. Section 215 of the DVA provides that correlative orders may be issued under the following circumstances: Both parties must have properly filed written pleadings, proved past abuse by the other party, given prior written notice (unless excused), satisfied all prerequisites for the type of order and each remedy granted, and otherwise comply with the DVA. In re the Marriage of Kiferbaum, 2014 IL App (1st) 130736.10. Uncapped maintenance award of 20% of any bonus husband received during maintenance term was an abuse of discretion. The Appellate Court overturned a trial court’s ruling which provided wife with monthly maintenance of $3,700 per month plus 20% of husband’s future bonuses for a period of seven years with a review. Husband argued on appeal that the uncapped portion of the bonus had no relation to wife’s standard of living during the marriage. The Appellate Court agreed and stated that an uncapped amount based on a percentage of his future bonuses could set up a windfall for wife and has no evidentiary relation to wife’s present needs or the standard of living during the marriage. In re the Marriage of Micheli, 2014 IL App (2d) 121245.

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