Family Law Flash Points - May 2019

4.  Breach of contract claim for damages in the form of attorneys’ fees under a postmarital agreement dismissed.  Husband brought a separate breach of contract claim apart from a pending dissolution of marriage claim under the theory that wife had breached the agreement by refusing to perform her obligations under it.  His claimed damages were the fees he was forced to spend in order to enforce the agreement when wife had challenged the validity and enforceability of the agreement (in the divorce case) and lost.  The agreement provided that husband was responsible for his own attorneys’ fees in the divorce case. Wife brought a motion to dismiss the breach of contract claim which was granted and which husband subsequently appealed.  The Appellate Court affirmed and held husband failed to state a claim upon which relief could be granted.  Contrary to husband’s argument, the expense of defending wife’s challenge to the postmarital agreement was a legal expense connected with the dissolution action.  While both actions rely on the same agreement to form the basis of the actions, dissolution proceedings are designed to dispose of all matters connected with the parties’ marriage.   Davis v. Davis, 2019 IL App (3d) 170744.

5.  Wife entitled to permanent maintenance at time of review.  Husband brought a petition to modify or terminate maintenance when he was age 60 due to retirement.  Wife brought a competing petition to increase or extend maintenance.  The marriage had been approximately 30 years. The trial court increased husband’s obligation from $225 per week to $3,767 per month on a permanent basis.  The Appellate Court affirmed.  At the time of the hearing wife’s assets were valued at $530,000 and she had a sporadic work history of minimum wage jobs.  Husband had assets valued at $1.9 million and he had also inherited over $800,000 from his mother and uncle.  Both the trial and Appellate courts gave weight to the fact that husband, while he was withdrawing from his savings to pay expenses, had remarried and was paying for his new wife’s expenses, including upkeep on her prior home, and college tuition for her children.  The evidence showed that without maintenance, the first wife would just meet her stated expenses, which did not include health insurance as she was uninsured at the time of the hearing.  Husband’s assets had increased substantially since the entry of judgment and therefore, he had the ability to pay a permanent maintenance award to his first wife, whose income earning capacity was the same as it was during the marriage.  In re Marriage of Kuper, 2019 IL App (3d) 180094.

6.  Amended maintenance guidelines should not have been used to calculate modified maintenance amount.  The Third District has followed the Fifth District’s ruling in In re Marriage of Hams, 2018 IL App (5^th) 160472 which held that the maintenance guidelines do not apply to proceedings to modify preexisting maintenance orders.  The Court reasoned that had the legislature meant for the maintenance formula under Section 504(b-1) to be used to calculate modified maintenance amounts, it would have referred to it in Section 510(a-5).  The Court also upheld the trial court’s calculation of husband’s monthly income as $14,114.15 which included his pension payments and the amounts he spent each month on three homes, entertainment, dining out, hobbies, gifts, donations, and his stepchildren’s college education payments.  The trial court expressly stated that it did not adopt wife’s approach of simply imputing all withdrawals from husband’s savings and investment accounts as income.  In re Marriage of Kuper, 2019 IL App (3d) 180094.