Dec 29, 2022

IICLE Family Law Flash Points - December 2022

Top Ten Family Law FLASHPOINTS of 2022

1. Illinois Supreme Court Upholds Ruling That Maintenance Payments, as Set Forth in Parties’ Marital Settlement Agreement, Are Nonmodifiable

In In re Marriage of Dynako, 2021 IL 126835, 186 N.E.3d 393, 452 Ill.Dec. 669, the husband appealed the trial court’s ruling that the maintenance payments set forth in the parties’ marital settlement agreement (MSA) were nonmodifiable pursuant to §502(f) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. The appellate court affirmed, and the husband appealed to the Illinois Supreme Court, which also affirmed. The parties’ MSA contained a maintenance payment schedule with detailed amounts owed each year for a specific period of time. The MSA also contained the following language: “Said maintenance payments shall be nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” 2021 IL 126835 at ¶4. The husband argued that the obligation was modifiable under §502(f) because §502(f) provides that if the parties do not provide that the maintenance is nonmodifiable in amount, duration, or both, the terms are modifiable upon a substantial change of circumstances. The Supreme Court disagreed and held that the maintenance obligation was nonmodifiable, stating that his argument had “absolutely no support” and that the language of the MSA not only expressly provided the obligation was nonmodifiable, but it specifically cited the applicable provision of the statute.

2. Illinois Supreme Court Holds That Support Payor’s Receipt of Required Mandatory Distributions from an Inherited IRA Is Income for Purposes of Maintenance and Child Support

In a matter of first impression, the Illinois Supreme Court held that a support payor’s receipt of mandatory distributions from an inherited IRA is income for purposes of §§504 and 505 of the IMDMA. In re Marriage of Dahm-Schell, 2021 IL 126802, 185 N.E.3d 1269, 452 Ill.Dec. 533. The husband inherited approximately $615,000 during the pendency of the divorce case, the majority of which was held in inherited IRAs. The trial court did not include the distributions in the maintenance and child support calculations, and the appellate court reversed. The Supreme Court affirmed the appellate court. The court focused its analysis on the caselaw, which broadly construes income as “income from all sources,” and its prior ruling in Mayfield v. Mayfield, 2013 IL 114655, ¶16, 185 N.E.3d 1269, 452 Ill.Dec. 533, which defined income as gains and benefits that enhance a noncustodial parent’s wealth and facilitate that parent’s ability to support a child. 2021 IL 126802 at ¶¶17 – 18. It also distinguished the case at bar from In re Marriage of McGrath, 2012 IL 112792, 970 N.E.2d 12, 361 Ill.Dec. 12, which involved an unemployed payor living off of assets awarded to him in the divorce. In its opinion, the court restated McGrath’s significance to mean that in order to avoid double counting, the liquidation of an asset awarded in a divorce is not income if the asset has been previously imputed to the party for maintenance and support purposes. The court also restated the holding in In re Marriage of Rogers, 213 Ill.2d 129, 820 N.E.2d 386, 289 Ill.Dec. 610, to mean that the money at issue in that case ultimately factored into support as income not because it was received as gifts and loans, but because it was received after the divorce and had not been previously imputed as income for support purposes. Therefore, because the husband in the case at bar never earned or contributed to the inherited IRAs, any distributions he received from the accounts increased his wealth and should be included in the statutory definition of income for purposes of calculating support.

3. Illinois Supreme Court Holds Income for Purposes of Support and Maintenance Includes Income Reinvested into Inherited IRAs

In Dahm-Schell, supra, a matter of first impression, the Illinois Supreme Court held that the fact that the husband chose to reinvest required mandatory distributions from an inherited IRA into his own IRA did not shield such distributions from being considered income for purposes of maintenance and support calculations. It was the husband’s choice to reinvest the required mandatory distributions into his own IRA, and such action did not exclude such funds from the statutory definition under the IMDMA.

4. Trial Court Reversed for Awarding Frozen Embryos to Husband, Party Who Did Not Wish for Them To Be Used by Either Party in the Future

In In re Marriage of Katsap, 2022 IL App (2d) 210706, a heavily litigated case on a number of issues, the trial court ruled that the husband should be awarded the frozen embryos held at a fertility clinic in Connecticut. The parties were both Russian, were married in Israel, and later moved to the United States. They settled in upstate New York and had one child, who was less than two years old when the wife petitioned for divorce. The child was born via in vitro fertilization (IVF) because the wife was not able to carry a child to term. The husband testified that he did not wish to have additional children with the wife and be financially obligated to support those children. The wife argued that the embryos were her only future ability to have any children. The trial court awarded the husband exclusive possession and control of the embryos, finding there was no agreement regarding their use and that the process of creating the embryos was done for the benefit of the parties’ marriage. The husband’s desire to donate the embryos to another couple was closer to the parties’ original intent — that a child be born to married parents. The appellate court reversed. The court followed Szafranski v. Dunston, 2013 IL App (1st) 122975, 993 N.E.2d 502, 373 Ill.Dec. 196, and Szafranski v. Dunston, 2015 IL App (1st) 122975-B, 34 N.E.3d 1132, 393 Ill.Dec. 604, the First District cases that adopted the balancing test approach when the contract with the fertility clinic does not dictate the disposition of the embryos in the event of divorce. The court then applied factors enumerated in In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018). The Rooks factors outline factors a court should consider:

1. the intended use of the party seeking to preserve the frozen embryos, with greater weight being placed on the interest of the party seeking to become a genetic parent through implantation of the embryos than that of one who desire to donate the embryos to another couple;

 2. the demonstrated physical ability or inability of the party seeking to implant the iembryos to have biological children through other means;

 3. the parties’ original reasons for pursuing IVF, such as to preserve a spouse’s ability to have biological children in the face of fertility-impacting medical treatment, such as chemotherapy;

 4. the hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and

 5. either spouse’s bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings. Katsap, supra, 2022 IL App (2d) 210706 at ¶117.

Per Rooks, factors the court should not consider are:

1. liming family size based on financial and economic distinctions;

2. the number of a party’s existing children; and

3. whether a party seeking to use the embryos could instead adopt a child or otherwise parent nonbiological children. Id.

The Katsap trial court’s finding that the parties wanted a child to be born only to married parents was against the manifest weight of the evidence, as was the court’s conclusion that wife wanted to have a child out of wedlock. There was no evidentiary support for these conclusions in the record. The trial court was also in error when it concluded that a baby born via surrogacy would have both husband and wife as its presumed parents since §10 of the Gestational Surrogacy Act, 750 ILCS 47/1, et seq., defines “intended parent” as a person who enters into a gestational surrogacy contract pursuant to which he or she shall be the intended parent. Applying the Rooks factors, the appellate court awarded the embryos to the wife due to her inability to carry a child to term. Her interest in preserving and potentially using the embryos to procreate outweighed the husband’s interest in donating them.

5. First District Limits Parent’s Ability To Have Access to Potentially Relevant Discovery Under Mental Health and Developmental Disabilities Confidentiality Act if Child in Question Exercises Privilege

In a postjudgment proceeding in which the mother sought to restrict the father’s parenting time based on allegations that the father would interfere with the child’s mental health services and the minor child did not consent to the father seeing records protected by the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1, et seq., the father moved for production of the child’s medical, psychiatric, psychological, and school records from the mother, who held the records. In re Marriage of Wendy W., 2022 IL App (1st) 201000. The trial court denied the father’s request. The First District answered the following certified question: May a trial court, in a proceeding relating to a petition to restrict parenting time pursuant to §603.10 of the IMDMA, in which allegations involve the mental health of a child who is at least 12 but under 18 years old, deny a parent, based on the provisions of the Confidentiality Act and the best interests of the child, the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want said evidence disclosed to that parent? The First District answered in the affirmative and held that the trial court may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child the ability to access such information, except for limited records regarding the child’s current physical and medical condition, diagnosis, treatment needs, services provided, and services needed, on the grounds that the child in question does not want said evidence disclosed to that one parent. The records referenced that the father was permitted to receive are specifically enumerated in the Confidentiality Act as an exception to the documents that are protected by the privilege for a child older than 12 but under 18 years of age. The father cannot avoid the effect of the child asserting the privilege by seeking the documents from another source besides the therapist. The child had not taken any action to forfeit his privilege against the disclosure of confidential records and communications, and he did not introduce his mental health as a claim of his in his parents’ postjudgment proceeding.

6. Petition for Maintenance Allowed Despite Being Filed After Deadline Set for Review Period

The Second District reversed a trial court’s order granting the husband’s motion to dismiss the wife’s petition for maintenance under the principle that adherence to arbitrary filing deadlines, which would bar maintenance for a former spouse with a disability, was inequitable in In re Marriage of Watson, 2022 IL App (2d) 210137. The court noted the case was “particularly extreme” given the wife’s severe mental health and substance abuse issues, her inability to support herself, and her level of need. At issue was approximately eight days between the maintenance termination date and the date the petition to extend maintenance was filed. The trial court found the petition was untimely, but it granted the wife leave to file a new maintenance petition because reviewable maintenance is “always reviewable” on terms that the court deems just. 2022 IL App (2d) 210137 at ¶27. The trial judge who issued this ruling was then transferred and a successor judge eventually granted the husband’s motion to dismiss the petition for maintenance on the grounds that the petition for maintenance was untimely. In addition to citing to the extreme inequity in barring the wife from continuing to receive maintenance, the appellate court also stated the original judge’s orders should have received more careful consideration and that it is incumbent upon the successor judge to carefully scrutinize the prior proceedings to determine the court’s previous directives.

7. Grandparent Visitation Denied Under Grandparent Visitation Statute when Child Had Subsequently Been Adopted

In In re V.S., 2022 IL App (2d) 210667, 186 N.E.3d 1125, 453 Ill.Dec. 91, the grandmother appealed a trial court’s order granting the adoptive parents’ motion to dismiss her petition for grandparent visitation pursuant to §602.9 of the IMDMA. The minor child had been adopted by her biological mother’s cousin and her cousin’s husband after the biological mother’s parental rights were terminated and the father never established parentage. The trial court dismissed the grandmother’s petition because she did not satisfy the necessary conditions of §602.9(c)(1) to seek grandparent visitation. The grandmother appealed, arguing that she satisfied subsection (c)(1)(E): “(i) the child is born to parents who are not married to each other; (ii) the parents are not living together; (iii) the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child; and (iv) the parent-child relationship has been legally established.” 2022 IL App (2d) 210667 at ¶25. The court held that subsection (c)(1)(E) has no application when a child has been adopted and that this subsection applies only when a biological parent has unreasonably denied visitation so as to cause harm to the child. The court also cited constitutional concerns, deeming the subsection inapplicable in an adoption context since it is well-settled law that parents have a fundamental right to make decisions regarding the care, custody, and control of their children.

8. Motion To Modify Maintenance Denied Due to “Catch-All” Provision in MSA Providing That Agreement Was Nonmodifiable Except as to Support, Custody, or Visitation of Minor Child

In In re Marriage of Scarp, 2022 IL App (1st) 210711, ¶9, the trial court denied the husband’s motion to modify his maintenance obligation due to catch-all language at the end of the MSA that provided that the agreement “shall not be changed, modified or altered by any order of court . . . except by mutual consent of the parties.” The language included an exception for support, custody, or visitation of the minor children. The husband appealed, and the appellate court affirmed. The catch-all provision at the end of the MSA was a clear and unambiguous statement that the entire MSA was nonmodifiable except for the terms concerning the support, custody, and visitation of the minor children or when the parties mutually consented.

9. Accelerated Depreciation Must Be Excluded from Calculation of Net Business Income for Purposes of Calculating Support

After an evidentiary postjudgment hearing on the modification of support, the court found the husband’s monthly gross income was $14,529 in In re Marriage of Britton, 2022 IL App (5th) 210065. The husband appealed, and the appellate court vacated the finding due to it not being clear how the trial court calculated such a figure. The husband owned his own business, and the testimony elicited from him was contradictory regarding the income reported on his tax returns and his financial affidavit. While the trial court was affirmed in the need to impute income, it was reversed as to the amount. At issue was the application of the depreciation business deductions to the husband’s gross business income. The court cited to §505(a)(3.1) of the IMDMA and the resulting caselaw that provides that §505 explicitly excludes accelerated depreciation from the calculation of net business income but not does not mention nonaccelerated depreciation. The appellate court remanded with directions to the trial court to determine which business deductions were accelerated, remove them from consideration, and then determine which, if any, amounts of nonaccelerated depreciation were reasonable and necessary to carry on the business.

10. Trial Court’s Finding of Non-Cohabitation by Maintenance Recipient Reversed

In In re Marriage of Churchill, 2022 IL App (3d) 210026, the husband filed to terminate maintenance for the second time based on allegations that the wife was involved in a continuing, resident, conjugal relationship with her boyfriend. The trial court denied the petition, and the appellate court reversed. The court relied on the facts that the wife was involved in a three-and-one-half-year relationship and the couple spent a significant period of time together on a regular basis, were in a monogamous sexual relationship, traveled together, and spent holidays together. The facts showed that the couple did not share a joint bank account. The wife’s boyfriend traveled a significant period of time for work, considered his permanent residence Texas, and had downloaded some dating apps while they were dating. The couple shared an account at a jewelry store, at the veterinarian, and at an auto shop. They had also exchanged rings. There was conflicting evidence on the symbolism of the rings and how often they were worn. The appellate court stated: “The exchange of rings is a significant fact to support a finding of a de facto marriage.” 2022 IL App (3d) 210026 at ¶42. The court disagreed with the trial court’s not interpreting the rings as a symbol of engagement or marriage. It also stated that the wife’s explanation of why she received packages at her home with her boyfriend’s last name (that it was a signal to her that she should not open the package until her boyfriend was with her) “makes zero sense.” Id. As a result, the case was reversed and remanded.

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