Jun 3, 2019

Family Law Flash Points - June 2019

1.         Trial court reversed on issue of allocation of SSDI benefit received by minor child.  The trial court ordered it was inappropriate for either party to pay child support to the other based upon a 50/50 parenting schedule, the parties’ respective net incomes, and maintenance payable from wife to husband.  The court did not include the monthly SSDI dependent benefits husband received on behalf of the minor child in husband’s gross income when reaching such a conclusion and instead found that it was in the best interest of the child that the benefit be deposited in a joint account for the payment of child care expenses, tuition, medical expenses, and extracurricular activities.  Husband appealed and sought to retain the total SSDI benefit, subject to a 50% obligation toward the additional child’s expenses. The Third District reversed.  The SSDI dependent benefit is generated through the labor and earnings of the husband and is intended for the current maintenance of the child. Pursuant to the language of the IMDMA, the benefit was required to be included in the benefit-generating parent’s gross income for purposes of calculating child support.  Further, there is no statutory authority which allows a trial court to order the benefit to be placed into a separate account for the payment of expenses.  In re Marriage of Benyon, 2019 IL App (3d) 180364.

2.         Wife was not cohabitating and a termination of maintenance was not warranted.  Husband filed a petition to terminate temporary maintenance on the basis that his wife was cohabitating with her boyfriend during the pendency of the divorce.  The trial court took the issue with the underlying trial and found there was no cohabitation.  Husband appealed.  The Third District affirmed holding wife was involved in a typical dating relationship, and that it did not rise to the level of a de facto marriage.  Husband’s private investigator could not find definitive evidence that the boyfriend had spent the night at wife’s house for a 37-week period although wife admitted he stayed there occasionally; the parties had separate residences; the boyfriend did not have a key to the wife’s residence; they did not have any joint accounts or commingle their finances; they each paid their own expenses; and although they vacationed and spent holidays together, that did not translate to a de facto marriage.  In re Marriage of Churchill, 2019 IL App (3d) 180208.

3.         Permanent maintenance in the amount of $10,000 per month upheld.  The trial court awarded wife permanent maintenance although the length of the marriage was 17 years at the time wife filed her Petition for Dissolution of Marriage and the Third District upheld.  The statutory maintenance guidelines did not apply because husband’s income was greater than $500,000 per year.  Wife was 49 years old with a high school diploma and some college coursework.  She had not worked outside the home during the marriage except for 10 hours per week in an hourly wage position.  In contrast, husband had grown his business during the marriage with an income in excess of $500,000 annually and the parties had lived a “lavish” lifestyle during the marriage.  The property was divided 50/50 with wife receiving non-liquid assets and husband retaining the business.  Both parties’ monthly expenses exceeded husband’s income, but husband’s ongoing opportunities to earn income far exceeded wife’s and her income was not sufficient to maintain the lifestyle established during the marriage.  Permanent maintenance in the monthly amount of $10,000 not an abuse of discretion.  In re Marriage of Churchill, 2019 IL App (3d) 180208.

4.         Ex-husband’s claim for damages against ex-wife’s attorney and healthcare provider allowed to proceed for violation of the Mental Health and Developmental Disabilities Confidentiality Act (“Act”).  Father brought a petition for indirect criminal contempt against mother relating to certain post-judgment parenting orders.  Without leave of court, mother’s attorney issued a subpoena for records to Northshore seeking father’s mental health records claiming they were relevant to the proceedings.  Northshore complied and sent the records directly to the trial court which sealed the records and required wife’s attorney to re-issue the subpoena with proper notice and for the records to be delivered to the court.  The court also gave father an opportunity to file written objections to an in camera inspection of the records.  A second subpoena was issued, but Northshore sent the records directly to mother’s attorney whose partner opened the envelope.  Mother’s attorney tendered the records to the court and stated that he had not reviewed them.  The court ultimately denied her request for release of the records, for an in camera inspection of the records, and ordered the records sealed.  Father subsequently filed a separate damages claim against mother, her counsel, and Northshore.  The First District held that father’s claims against mother’s attorney and Northshore survived a motion for summary judgment because under the plain language of Section 10(d) of the Act, no subpoena should have been issued or responded to without leave of court and prior notice to the treatment provider (Northshore) and treatment recipient (father).  The record was clear that neither the attorney nor Northshore had complied with the stringent provisions of the Act.  Further, father had never introduced his mental condition in the post-judgment matter.  Finally, Section 15 of the Act provides that any person aggrieved by a violation of the Act may sue for damages, an injunction or other appropriate relief.  Garton v. Pfeifer, 2019 IL App (1st) 180872.

5.         Award of permanent maintenance on review upheld.  After a maintenance review hearing in 2017, the trial court applied the maintenance statute in effect at the time and extended wife’s maintenance to a permanent maintenance award of $450 per month.  Husband appealed both the permanent award and the version of the statute the trial court applied.  The Fourth District affirmed on both issues.  The Court followed the Second District’s reasoning in In re Marriage of Carstens, 2018 IL App (2d) 170183 and held that Section 801(c) required the version of the IMDMA in effect at the time wife filed her petition to extend maintenance to be applied.  That version was the one that included the statutory guidelines both as to amount and duration.  The version of the IMDMA that was in effect at the time the parties divorced was the 2014 version which had no statutory guidelines.  The Court further held that a maintenance “review” hearing was akin to a “modification” hearing for purposes of interpreting Section 801(c). The parties’ marriage had been in excess of 20 years and wife’s income had been consistent at approximately $50,000 both at the time of the divorce and two years later at the time of the review.  The trial court’s detailed findings about wife’s continuing need for maintenance was not an abuse of discretion given the length of the marriage, and the parties’ respective needs and incomes.  In re Marriage of Kasprzyk, 2019 IL App (4th) 170838.

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