Feb 1, 2019

IICLE Family Law Flash Points - February 2019

1.  Second District holds the trial court entered a judgment of dissolution that did not comply with Section 505(a)(2) of the IMDMA because the judgment itself did not reference the words “child support” or explicitly provide why any deviation on child support was appropriate. Mother brought a motion to modify child support alleging a substantial change of circumstances.  The original marital settlement agreement which was incorporated into a judgment for dissolution of marriage had capped father’s income for purposes of calculating child support at $300,000 and had the following language: “That parties acknowledge and agree that the cap on child support set forth in this Paragraph is appropriate given Bryce’s income level, the allocation of the children’s expenses as set forth in this Agreement, the parties’ current standard of living, and all other factors to be considered by the court in establishing a cap and deviating from the guideline support.” 

Because of this stipulation by the parties at the time of the divorce, the trial court granted father’s motion to dismiss and mother appealed.  On appeal, the Second District held that it was error for the trial court to have entered the original judgment because the judgment itself, although the MSA was incorporated into it, did not reference the words “child support” specifically and did not provide specific reasons why the deviation from the statutory guidelines, by placing a cap on father’s income for child support purposes, was in the children’s best interest.  With respect to the underlying case, the Court held that even if the court had made the required findings for the deviation, this would not have precluded the mother from petitioning for a modification based on a substantial change of circumstances.  The trial court’s order granting the motion to dismiss was vacated and remanded.  In re Marriage of Fisher, 2018 IL App (2d) 170384.

2.  Trial court entitled to review maintenance award even though original unallocated support period had passed. In a post-judgment action, wife filed a petition for review of maintenance weeks after the 60 month term for husband to pay unallocated support passed.  The language in the MSA provided that the unallocated support was reviewable.  Husband filed a motion to dismiss arguing that wife was not entitled to additional maintenance because she did not file her petition for review with the 60 months.  The trial court denied the motion to dismiss and ordered permanent maintenance retroactive to the date of filing.  The Appellate Court affirmed.  The language of the MSA clearly provided the support was reviewable.  The Court relied on In re Marriage of Rodriguez, 359 Ill.App.3d 307, (2005) where the same argument was made by the husband in that case and was rejected.  The Court also noted that the petition for review was filed weeks after the 60 month period had ended.  Nothing in the Marital Settlement Agreement prohibited wife from seeking the trial court from considering the extension of the maintenance payments.  In re Marriage of Wojcki, 2018 IL App (1st) 170625.

3.  Award of permanent maintenance upheld, but interest of retroactive maintenance reversed.  In a post-judgment action where the trial court ordered permanent maintenance at a review, husband appealed both the amount and duration. Trial court did not abuse its discretion when setting the amount or duration because it found that wife’s ability to earn future income was impaired by her domestic duties during the marriage which allowed the husband’s career to thrive.  Wife had also properly attempted to rehabilitate herself when she gained employment post-divorce as a teacher.  The court properly imputed $46,000 to her which was what she could earn as a teacher.  The trial court’s order provided for a monthly maintenance amount of $5,700 plus retroactive maintenance of $239,400 which included interest on the retroactive portion back to the date of filing.  The Appellate Court reversed the award of interest because the maintenance obligation did not become “due” for purposes of Section 504(b-5) until the trial court entered the order setting the monthly amount and therefore the retroactive portion was not “unpaid.”  In re Marriage of Wojcki, 2018 IL App (1st) 170625.
 

4.  Section 610 of Parentage Act creates a rebuttable presumption for DNA testing.  In this parentage case, the parents had been married and were the parents to five children as represented in their judgment for dissolution of marriage. After the divorce, father brought a petition to terminate the parental relationship with his youngest son after he learned that he was probably not the father. The trial court granted his petition after ordering DNA testing which showed he was not the child’s biological father and conducting a lengthy evidentiary hearing.  Mother had opposed genetic testing which father had requested and argued that the court should have considered the best interest of the child before ordering the testing.  Section 401 of the Parentage Act provides that where a party of a child requests genetic testing, the circuit court shall order the test unless in the court’s discretion one of the following applies under Section 610: (1) the conduct of one of the parents estops a party from denying parentage; (2) it would be inequitable to disprove the relationship or (3) it is in the child’s best interest to deny DNA testing pursuant to 610(a).  The Appellate Court held that under Section 401 the circuit court must presumptively order genetic testing when requested by a party or child, and that the presumption may be rebutted after the court considers the factors in Section 610(a), but that such consideration is in the trial court’s discretion.  The legislature could have required a hearing on every motion for DNA testing so that the trial court could consider all Section 619(a) factors, but instead provided that under Section 401, the motion may be denied only where the court finds the Section 610(a) factors are present.  Where the court finds that those factors are not present, as in this case, the court must enter the order for testing.  In re Marriage of Sparks, 2018 IL App (1st) 180932.

5.  Guardian Ad Litem not required to be appointed in termination of parental rights case.  In a heavily contested parentage action (See Flashpoint #3), the court did not appoint a GAL to represent the children’s best interests.  This was not in error because the trial court had granted a motion for genetic testing pursuant to Section 410, and therefore Section 610 was not applicable.  Section 610(b) provides that in a proceeding involving the application of this section [Section 610], a minor or incapacitated child must be represented by a guardian ad litem, child’s representative, or attorney for the child.  Mother’s argument that the child should have had representation and her reliance on certain Illinois case law was misplaced because in this case, her interests were aligned with the child’s and she had full representation throughout the proceedings.  Therefore, the child’s interests were adequately protected.  The Court also noted that at the trial level neither party had asked the court to appoint representation for the child.  In re Marriage of Sparks, 2018 IL App (1st) 180932.

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