Family Law Flash Points - February 2020

3.         Maintenance extension upon review upheld.  Husband appealed the order granting wife’s petition to extend maintenance upon review.  The parties had been married for over 20 years and the trial court found that due to the wife’s age (68), it was unlikely she would able to attain employment to earn an income which would approximate her standard of living during the marriage.  The court extended the $3,000 per month maintenance award until husband retired which was anticipated to be when he turned 65 because of mandatory retirement at his company.  Wife appealed the court’s failure to award permanent maintenance. The Appellate Court upheld on both issues.  The trial court did not abuse its discretion in extending maintenance given wife’s age and her lack of employability; and because wife received substantial assets in the divorce totaling at least $1.2 million, permanent maintenance was not required under the facts.  In re Marriage of Brunke,  2019 Il App (2d) 190201.

4.         Review proceedings are not governed by the 2016 version of IMDMA where judgment was entered in 2012.  In a maintenance review proceeding where the trial court granted wife’s petition to extend maintenance at the rate she was receiving the judgment (entered in 2012), wife appealed the trial court’s failure to apply the 2016 version of the IMDMA, under which she argues she would have received indefinite maintenance in an amount equal to approximately $5,000 more per month.  The Second District held the language in Section 801(c), which refers specifically to modification proceedings, does not address review proceedings, and therefore, a maintenance review hearing does not fall within the parameters of Section 801(c) such that the guidelines should have been applied in this matter.  Modification proceedings and review proceedings are distinguishable because a review considers a prior court order whereas a modification arises from a substantial change in circumstances.  The Court noted that its opinion was contrary to the Fourth District case of In re Marriage of Kasprzyk, 2019 IL (4th) 170838.  In re Marriage of Brunke,  2019 Il App (2d) 190201.

5.         Increase in parenting time alone not a substantial change of circumstances warranting a modification of child support.  The trial court granted a motion for directed finding submitted by wife after husband presented his case which was essentially that the change in parenting time from 82 overnights under the original agreement to between 130-148 overnights in the modified agreement was a substantial change in circumstances.  No evidence was offered showing any change in the financial circumstances of either party or the child.  The Appellate Court upheld. Further, the statute relating to the modification of parenting time requires entirely different considerations that the statute relating to a modification of child support.  The Court noted that the record showed no discussion about how the change in parenting time impacted the parties’ respective finances or whether there were any changes in the child’s needs.  Husband had only presented the court with a calendar showing the parenting time that he did exercise which was not enough to fulfill the burden of proving a substantial change.  In re Marriage of Wengielnik, 2020 IL App (3d) 180533.