Sep 20, 2021

IICLE Family Law Flash Points - September 2021

Trial Court Reversed: Substantial Change of Circumstances Due to Wife’s Post-Dissolution Employment Earnings

In In re Marriage of Durdov, 2021 IL App (1st) 191811, the wife appealed the trial court’s order modifying the husband’s child support obligation under the judgment for dissolution of marriage. The trial court found that the husband had proven a substantial change of circumstances that reduced his support from $2,776 per month to $1,567 per month due to the wife’s increase in income from postjudgment employment. 2021 IL App (1st) 191811 at ¶13. The original judgment calculated child support based on 28 percent of the husband’s net income pursuant to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., guidelines in effect at that time. The trial court applied the income shares approach when ordering the modified support amount. At the time of the dissolution, the wife worked occasionally as a part-time substitute teacher and earned nominal income while the husband earned $211,000 annually. 2021 IL App (1st) 191811 at ¶3. At the time the husband filed a motion to modify child support, the wife was earning approximately $57,240 and the husband was earning $247,000. The husband argued that the wife’s increase in income was a substantial change of circumstances warranting a modification. The wife argued that the husband was simply trying to take advantage of the change in the child support statute and also relied heavily on In re Marriage of Salvatore, 2019 IL App (2d) 180425, 124 N.E.3d 1136, 429 Ill.Dec. 626, because certain provisions of the marital settlement agreement (MSA) and joint parenting agreement contemplated her return to work. Specifically, the non-modifiable maintenance section of the MSA imputed an income of $65,000 per year to her in year five. There was also a prejudgment order requiring her to seek gainful employment. Therefore, the appellate court found that a change in the wife’s employment status, and therefore her income, was contemplated by the parties at the time of the dissolution. No substantial change of circumstances existed that justified a modification in the husband’s child support award.

Illinois Court Defers to Utah To Conduct Parenting Responsibilities and Parenting Time Hearing: Upheld Under UCCJEA

In Camberos v. Palacios, 2021 IL App (2d) 210078, a case involving a parenting dispute between two unmarried parents, the father filed a petition to modify the parenting plan in Washington (the state that entered the original parenting plan). Months later, in Illinois, he filed a petition to modify the child custody determination entered in Washington. The Illinois court subsequently dismissed his petition, explaining that Washington, not Illinois, was still the child’s home state. Thereafter, the Washington court also dismissed the father’s petition pending before it, finding that the mother and child had since moved to Utah and that Utah was now the child’s home state. The father did not appeal this order. Thereafter, in March 2020, when the mother came to Illinois to retrieve the child at the conclusion of the father’s parenting time, he refused to turn over the child, citing COVID-19 and the Illinois lockdowns in place. After months of trying to regain possession of the child in accordance with the Washington parenting time order, the Utah court, which had since enrolled the judgment, issued a temporary restraining order requiring the father to return the child to the mother. In the meantime, the father filed a petition to modify child custody in Illinois after he had possession of the child for six months in Illinois during COVID-19. The mother filed a motion to dismiss in Illinois, which the trial court granted, and the father appealed. He argued that Utah never gained jurisdiction because the child did not reside in Utah for six consecutive months and that the child had resided in Illinois for such time, thereby making Illinois the child’s home state under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), 750 ILCS 36/101, et seq. However, the father’s failure to appeal the Washington court’s order granting Utah jurisdiction was fatal to his cause of action under collateral estoppel, which provides that Illinois must honor the preclusive effect of another state’s judgment on a matter. The court noted that the petition the father filed in Illinois during COVID-19 was almost identical to the previous one he had filed in Washington, which had been disposed of by the Washington court. The court also noted that the only reason that the father could argue that Illinois was the child’s home state was because he refused to comply with court orders obligating him to return the child to the mother. The court called his conduct “unjustifiable and reprehensible” and stated that such conduct could not be a basis to invoke Illinois with jurisdiction. 2021 IL App (2d) 210078 at ¶23.

Trial Court Upheld: Denial of Mother’s Petition for Relocation

In Kimberly R. v. George S., 2021 IL App (1st) 201405, the wife filed a petition for relocation as part of her petition for dissolution of marriage, seeking to remove the minor child from Illinois to Tennessee. The trial court denied the request, and the appellate court affirmed. The parent wishing to relocate, pursuant to §609.2 of the IMDMA, 750 ILCS 5/609.2, bears the burden of proof that the relocation is in the best interests of the child. Although the husband had an emergency order of protection entered against him at the beginning of the case and supervised visitation for a period of time, the trial court found that both parties had a role in the husband not seeing the child at the beginning of the case. With respect to the statutory relocation factors, the educational opportunities for the child, who had autism, did not weigh in favor of relocation as the wife did not present any clear evidence regarding them. Her testimony indicated that she had not engaged in extensive research as she gave vague answers when questioned about the differences in the school systems. The trial court also noted that the wife did not present a clear proposed parenting schedule for the husband and did not take into account long car rides between Illinois and Tennessee, which the child could not tolerate. The appellate court stated that the wife’s argument on appeal was essentially that the appellate court should weigh the evidence differently, but the trial court is in the best position to observe the parties and witnesses and assess credibility. The wife did not meet her burden to show that relocation was in the best interests of the child.

IMDMA Section 607.6(d) Revised

Effective immediately, §607.6(d) of the IMDMA, 750 ILCS 5/607.6(d), which formerly barred any and all information from therapy from being released regardless of whether the parties signed releases authorizing the therapist to speak with a third party such as a child representative, has been revised. Now, the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1, et seq., and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. No. 104-191, 110 Stat. 1936, control the confidentiality and release of this information. The statute as amended by P.A. 102-349 (eff. Aug. 13, 2021) can be found here.

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