Mar 5, 2019

IICLE Family Law Flash Points - March 2019

1.  Illinois Supreme Court reverses Appellate Court and upholds trial court’s ruling to allow relocation.  We reported on the Appellate Court decision on this case in June 2018.  The Appellate Court reversed a trial court’s order permitting father to relocate with the children to Virginia.  Father appealed to the Illinois Supreme Court which reversed the Appellate Court’s decision and affirmed the trial court’s decision.  A trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears a manifest injustice has occurred. The trial court had entered a 13-page single-spaced order detailing both its factual findings and its application of those finding to each of the relevant statutory factors. The trial court had also conducted an in camera interview with both children who were the subject of the relocation. One of the findings questioned the credibility and reliability of the mother’s testimony regarding herself possibly leaving Illinois and moving to Tennessee to be with her boyfriend in the future. The trial court acknowledged  this was an incredibly difficult decision because both parents were involved with the children’s lives.  The Supreme Court held that the trial court’s decision was reasonable based on the record and there was no reason to dispense with the strong and compelling presumption in favor of the result reached by the trial court. In re Marriage of Fatkin, 2019 IL 123602 (2019).  The Appellate Court opinion with a detailed recitation of the trial court’s order can be found here: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/3rdDistrict/3170779.pdf

2.  An order allowing relocation is appealable under Supreme Court Rule 304(b)(6).  After father filed a notice of intent to relocate with the children to Virginia Beach, Virginia and mother objected, the trial court held a trial and issued a lengthy decision to allow the relocation.  Mother appealed and the Appellate Court reversed.  Mother had filed her notice of appeal pursuant to Rule 304(b)(6) which allows for the immediate appeal from any custody or allocation of parental responsibilities judgment or modification of such judgment entered pursuant to the IMDMA. The trial court’s order made findings as to the children’s best interest and included language that the parenting time would have to be modified as a result of its ruling and provided for a modified parenting schedule. Given the definition of what an “allocation of parenting responsibilities judgment” is under the IMDMA, there is no question that an order granting a relocation petition fell within the definition of an allocation of parental responsibilities for the purpose of Rule 304(b)(6) and was immediately appealable.  In re Marriage of Fatkin, 2019 IL 123602 (2019).

3.  Trial court erred in determining that a permissive military service credit was non-marital property.  At issue in the dissolution proceedings was whether husband’s 48 months of permissive military service credit, which he earned prior to the marriage, but was purchased during the marriage with marital funds in order to enhance his pension was marital property.  The trial court determined the enhancement was not marital property, but ordered husband to reimburse wife for her marital share of the funds used to purchase the enhancement.  The Appellate Court reversed.  Husband’s entitlement to an enhanced annuity accrued while he participated in the pension plan, and thus, a portion of that credit accrued during the marriage.  The fact that the enhancement was calculated based on a number equal to the number of months husband had served in the military did not mean that he acquired the asset at the time of the military service.  His military service has no relationship to his pension benefit until he exercised the option of purchasing the 48-months of additional credits which was done during the marriage with the use of marital funds.  The Appellate Court reversed and remanded for an equitable distribution of the marital value of the pension. In re Marriage of Zamudio and Ochoa, Jr. 2019 IL App (3d) 160537.

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