Jan 2, 2019

IICLE Family Law Flash Points - January 2019

Michelle Lawless and Donald Schiller

1.  Former counsel is not a party to a divorce action, and therefore there is no authority to seek fees against him pursuant to Section 508(a) of IMDMA.  Counsel withdrew from representation of a client in the middle of a divorce case and was later awarded $12,500 of attorneys’ fees and costs pursuant to a final fee petition.  He appealed, but the award was affirmed in In re Marriage of Kane, 2016 IL App (2d) 150744 (Kane I).  Thereafter, the former client sought recovery of fees incurred in the defense of the appeal.  The trial court denied counsel’s motion to dismiss and found counsel was a party for purposes of the fee petition.  The former client sought discovery regarding counsel’s income, living expenses, assets, and liabilities, and the trial court ordered counsel to tender certain documents relating to his 2017 income.  Counsel took a friendly contempt in order to appeal the discovery award.  The Appellate Court reversed and remanded holding that counsel was not a party to the divorce action under Section 508(a), and therefore, the former client could not seek fees against him.   In re Marriage of Kane, 2018 IL App (2d) 180195

2.  Trial court reversed for awarding retroactive maintenance.  The trial court awarded wife maintenance for the time period of 2012-2016 and applied the statutory formula for computing maintenance by averaging husband’s income from 2012-2014 and wife’s income from 2012-2016.  Husband had been fired from his police officer job in 2014.  The trial court noted husband should have acted more responsibly at his job so as to not be terminated during his divorce case. The total award of maintenance was $73,760.31 and judgment was entered against husband.  Husband appealed.  The Appellate Court reversed and remanded noting several key problems: (1) the judgment for dissolution of marriage was entered in September 2014 and reserved the issue of maintenance; (2) the parties entered into a marital settlement agreement in February 2017 and further reserved the issue of maintenance; (3) the trial court never stated with any specificity the type of maintenance it awarded in its order; (4) wife never sought a hearing on temporary maintenance during the pendency of the case; (5) throughout the more than five years the case had been pending, the issue of maintenance was repeatedly reserved; (6) at the time of the final hearing, there were no pleadings on file seeking retroactive maintenance; and (7) wife was admittedly cohabitating with her boyfriend at the time of the maintenance award.  The Court held that it was error to impute husband’s police officer salary to him after her had been terminated and there was no evidence that wife was entitled to any form of maintenance for the time period awarded.  Instead, the trial court’s award was essentially a redistribution of property after the parties had already distributed their property via a marital settlement agreement.  In re the Marriage of Van Hoveln, 2018 IL App (4th) 180112.   

3.  New wife’s income properly included for purposes of calculating child support.  The Fifth District held that a new spouse’s income was properly included in the trial court’s child support calculation and affirmed the trial court’s child support award of $467 per month.  The case was decided under the pre-2017 child support amendments because ex-wife filed a motion to modify child support in October of 2015.  Traditionally, Illinois courts have held that the financial status of a current spouse may not be considered when assessing a child support obligation, but there are instances where equity requires consideration of the new spouse’s income.  In this case, the Court noted that the father had not paid child support since 2010; he submitted income tax returns in discovery which were not consistent with those filed with the IRS; he had sold a house in 2016 which netted a $32,000 profit yet did not use any of the proceeds to support his children; he inflated his expenses to include those of his new spouse and her two children; and his new spouse earned substantial income of over $300,000 which allowed him to live a nice lifestyle while at the same time not supporting his children.   In re Marriage of Rushing, 2018 IL App (5th) 170146.

4.  Trial court’s findings on future child support amount reversed.  In a post-judgment child support modification case filed prior to the adoption of the 2017 amendments, the trial court made additional findings in its order regarding the amount of child support to be paid in the future if a court determined that father and his new spouse were legally separated.  This finding was due to the fact that the trial court had included the new spouse’s income in the child support calculation.  However, in the event that father wished to modify the support order in the future due to a substantial change in circumstances, the statute “gave him a path to follow.”  The Court recognized the trial court was trying to streamline the process due to father and his new spouse’s tactics during the proceedings which included producing income tax returns that were not the ones that were filed with the IRS, asking to reopen proofs to allege that they were now separated even though they continued to live at their same address together, and filing multiple financial affidavits each alleging new information.  Notwithstanding the trial court’s efforts to prevent protracted litigation in the future, the findings were not proper.  In re Marriage of Rushing, 2018 IL App (5th) 170146.

5.  Trial court reversed for reducing child support due to involuntary termination which led to payor’s retirement.  Father petitioned for a reduction in child support after he was terminated from his executive position at the age of 64.  He continued for search for employment but was unsuccessful and therefore viewed himself as retired.  The trial court reduced his support payment from $3403 per month to $1700 which was an upward deviation from guidelines due to father’s wealth.  Mother appealed arguing that there was no substantial change of circumstances and that the trial court erred by not including $83,000 in deferred compensation and $400,000 as a retirement withdrawal as income.  The Appellate Court reversed holding that while retirement generally equals reduced economic means, father’s $2.585 million in investments, three homes, and a $60,000 per year travel budget, demonstrated that his retirement did not substantially change his ability to pay child support for his minor child.  The Court noted that father’s lifestyle had not decreased since his retirement.  Additionally, the Court engaged in an extensive analysis of whether the retirement withdrawals should be considered income and stated that the trial court erred in failing to require the father to show why certain portions of the retirement withdrawals were not section 505 income pursuant to In re Marriage of Lindman, 356 Ill.App.3d 462 (2nd Dist.) 2004.  In re Marriage of Verhines and Hickey, 2018 Il (2d) 171034.

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