Feb 7, 2021

Family Law Flash Points - January 2021

Donald Schiller

Child Support Award Reversed for Failure To Follow Statutory Guidelines

In People ex rel. Department of Healthcare & Family Services v. Chakona, 2020 IL App (2d) 190918, the Department of Healthcare and Family Services appealed the trial court’s deviation from guideline child support after the court deviated downward from the statutory formula due to the fact that the mother and child resided in the Cayman Islands and the court believed the mother had the burden to prove that the guidelines should apply internationally. The trial court based its downward deviation (which was lower than what the father had proposed was the correct amount) on its belief that it was cheaper to raise a child in the Cayman Islands than in the United States. The appellate court reversed, holding that such reasoning disregarded the plain language of §505(a)(3.3) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., which clearly states that there is a rebuttable presumption that the amount of child support calculated under the application of the guidelines is the correct amount of child support and it is the party who seeks a deviation from such guidelines who has the burden to provide evidence that shows compelling reasons for the deviation. 2020 IL App (2d) 190918 at ¶17.

Nonmarital Character of Commingled Retirement Accounts Reversed

In a highly litigious dissolution action in which the husband initiated proceedings in both federal court and Bankruptcy Court, as well as several interlocutory appeals, all of which delayed the dissolution trial approximately five times, the trial court ruled on several issues pertaining to the characterization, valuation, and allocation of the wife’s retirement accounts, which contained both marital and nonmarital funds. In re Marriage of Budorick2020 IL App (1st) 190994. With respect to a pension that the wife acquired prior to the date of the marriage through a prior employer, the evidence showed that the wife had made at least 18 postmarital contributions to the plan totaling $5,800; therefore, the trial court should not have awarded this account to the wife as her nonmarital property. With respect to a second plan the wife received in connection with the same prior employer (a California County 457 Plan, which is akin to a 401(k) plan), there was no documentary evidence presented at trial reflecting when or how much the wife had contributed to the plan before marriage. The only documentation presented was a statement from her current employer’s plan showing the amount she had rolled over into her current employer-sponsored 401(k) during the marriage. The court held that while oral testimony may establish clear and convincing evidence under certain circumstances, the wife did not meet her burden because the only testimony she offered on this issue was a perfunctory statement in response to a leading question by her counsel. The court reversed the finding that the $6,663.50 rolled over into her current 401(k) was her nonmarital property.

Use of Inconsistent Valuation Dates for Retirement Plans Reversed

The trial court valued the wife’s two retirement accounts held by her current employer as of the date closest to when the wife filed her petition for dissolution of marriage. By contrast, the court valued the husband’s retirement accounts closest to the date of trial. Section 503(f) of the IMDMA provides that, in determining the value of marital or nonmarital property for purposes of property division, the trial court has the discretion to use the date of the trial or another date agreed to by the parties or ordered by the court within its discretion. The trial court’s discretion is not unfettered, however, and the court must be consistent when setting a valuation date. The trial court’s decision was based on the husband’s actions in delaying and stalling the matter, which were well documented, but inconsistent valuation dates cannot be used as a substitute for sanctions for frivolous behavior. Section 503(d) provides the trial court the ability to divide marital property by considering each party’s contribution to the acquisition, preservation, or increase or decrease in value of the property and whether the contribution is after the commencement of the dissolution proceedings.

Husband’s Award of Funds Attributable to Marital Value of Stock Wife Received Pursuant To Employment Upheld

The husbandappealed the trial court’s award of funds in excess of $50,000 that were attributable to the marital value of the stock the wife received from her employer during the marriage. The appellate court did note that there was a miscalculation in the amount the husband should have received, which was $61,912, but it affirmed the trial court’s underlying analysis on the character and value of the stock. The wife had participated in a stock purchase plan offered by her employer during the marriage. Except for 2013 and 2014, when she used money from her parents to purchase the stock, the remainder of the stock was acquired using marital funds. The trial court found her interest in the stock was 2/7 nonmarital and 5/7 marital and used the value of the stock provided by the company to calculate the wife’s nonmarital portion, dividing the remaining marital portion 50/50. 2020 IL App (1st) 190994 at ¶25. The husband argued on appeal that the value of the stock was uncertain, but the appellate court disagreed because the current value of the stock was provided at trial by the company. The court distinguished the stock the wife owned from a stock option that is to mature in the future and the value of which is not known at the time of judgment. The court affirmed the classification of the 2/7 portion as nonmarital property because the wife had successfully rebutted the presumption under §503 of the IMDMA that the shares acquired in 2013 and 2014 were marital because she was able to show that the stocks were purchased using gifted funds from her parents.

Wife Not Entitled to $50,000 in Contribution to Attorneys’ Fees

The trial court awarded the wife $50,000 as a contribution to her attorneys’ fees and costs. The court cited §§508(a) and 503(j) of the IMDMA in its order awarding such fees. In In re Marriage of Heroy, 2017 IL 120205, 89 N.E.3d 296, 417 Ill.Dec. 648, the Illinois Supreme Court reaffirmed the principle that an award of fees pursuant to §508(a) depends on the petitioning party’s inability to pay. 2020 IL App (1st) 190994 at ¶68. In Budorick, the trial court made no finding that the wife was unable to pay her own fees and therefore the award could not be pursuant to §508(a). Because the award was not made pursuant to §508(a) and the wife expressly did not bring her petition pursuant to §508(b), the court’s fee award was not based on any applicable section of the IMDMA and was an abuse of discretion.

First District Holds Distribution of Interest from IRA Withdrawal Is Income for Purposes of Calculating Child Support

The husband appealed the trial court’s calculation of the wife’s income for purposes of calculating child support on the grounds that it excluded funds the wife received from two retirement accounts during the pendency of the dissolution case. The contents of one account the wife would not receive until she left her employment or retired, unlike a traditional profit-sharing account; therefore, these funds were properly excluded from the calculation. The wife also took withdrawals from an IRA during the pendency of the case to pay for attorneys’ fees and other family expenses. The court noted the split in authority between the Second and Fourth Districts on whether IRA withdrawals constitute income for purposes of support and followed the reasoning of the Fourth District that disbursements of interest, but not principal, are income for purposes of calculating income for child support. 2020 IL App (1st) 190994 at ¶77,citing In re Marriage of O’Daniel, 382 Ill.App.3d 845, 889 N.E.2d 254, 258, 321 Ill.Dec. 350 (4th Dist. 2008). The court noted that notwithstanding the split in authority, all courts that have ruled on the issue agreed that at least some portion of the IRA withdrawals may constitute income. The court remanded for the trial court to determine what portion of the withdrawal was interest, if any, and for the recalculation of the support accordingly. The court also upheld the allocation of the contribution to §513 expenses, with the husband paying two thirds and wife paying one third based on his greater income earning potential.

Fifth District Holds Mandatory Retirement Distributions and Withdrawals from Inherited IRA Are Income for Purposes of Calculating Child Support

Days after the First District ruled in Budorick, the Fifth District ruled on a certified question presented to it: whether mandatory distributions or withdrawals taken from an inherited IRA containing money that has never been imputed to the recipient for the purposes of calculating support constitutes income for the purposes of §§504 and 505 of the IMDMA. In re Marriage of Dahm-Schell, 2020 IL App (5th) 200099. The Fifth District answered in the affirmative. At issue was approximately $10,700 per year in annual income to either be included or excluded from the calculation. After an extensive review of In re Marriage of McGrath, 2012 IL 112792, 970 N.E.2d 12, 361 Ill.Dec. 12, In re Marriage of Lindman, 356 Ill.App.3d 462, 824 N.E.2d 1219291 Ill.Dec. 969 (2d Dist. 2005), O’Daniel, supra, and In re Marriage of Verhines, 2018 IL App (2d) 171034, 129 N.E.3d 181, 432 Ill.Dec. 293, the Fifth District determined that its conclusion comported with McGrath because when a party inherits an IRA, there is no “double counting” to be concerned with since the money was not counted as income when it was originally received and then again when withdrawn. 2020 IL App (5th) 200099 at ¶25.

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