Trial Court Erred in Applying 2019 Version of IMDMA Maintenance Statute, Ruled Harmless Because Correct Calculation Was Applied
The Second District addressed the question of which version of the maintenance statute under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., applied to a December 2018 petition to set maintenance based on language in a marital settlement agreement (MSA) entered in August 2018. In re Marriage of Wig, 2020 IL App (2d) 190929. The wife was ordered to pay the husband maintenance, but days after the judgment was entered the wife lost her job. Months later, she obtained new employment with a salary consistent with her former employment, and the husband filed a motion to set maintenance based on the language in the MSA that delineated how maintenance was to be calculated. The language in the MSA provided for the use of the 2018 maintenance formula and for the includability/deductibility of maintenance on the parties’ respective tax returns. The parties stipulated that the husband would receive $423 in monthly maintenance under the 2018 version of the statute and $3 per month under the 2019 version. 2020 IL App (2d) 190929 at ¶11. The trial court ruled that the 2019 statute was the correct statute to apply, but treated the proceeding as a modification proceeding under §504(b-1)(1)(A-1), so that the 2018 guideline formula applied to the calculation. The appellate court disagreed and held that the plain language of the MSA clearly and unambiguously provided how maintenance was to be calculated, and therefore that language must be followed. The petition to set maintenance filed by the husband was not a modification proceeding, but rather a petition to set maintenance in accordance with the terms the parties had agreed to in the MSA. The trial court’s error in reasoning was harmless, however, because it ultimately reached the right calculation, and therefore the judgment was affirmed.
Second District Opines on Issue of Unconscionability as to Application of 2018 and 2019 Versions of Maintenance Statute
In Wig, supra, in which the issue presented to the appellate court was whether the 2018 or 2019 version of the maintenance statute of the IMDMA applied, the court ultimately held that the trial court incorrectly framed the issue. In fact, the plain language of the MSA clearly and unambiguously provided precisely how the calculation was to occur. The language controlled, and the trial court did not need to determine which statute was properly applied to the issue before it. The significant difference was that under the 2018 statute (which provided for a calculation based on gross income), the husband was to receive $423 per month in maintenance, while under the 2019 statute (which provided for a calculation based on net income), he would have received $3 per month in maintenance. The Second District opined in dicta that although neither party argued unconscionability of the application of the 2019 statute to the ultimate maintenance award, interpreting the MSA consistent with the 2019 version would have rendered the MSA unconscionable because “[n]o sensible person would offer, and no fair-minded person would accept, $3 in monthly maintenance.” 2020 IL App (2d) 190929 at ¶20.
Trial Court Reversed for Granting Motion To Strike §2-1401 Petition Due to Potential Waiver of Attorney-Client Privilege
In In re Marriage of Stinauer, 2021 IL App (3d) 190692, the wife filed an action to vacate a judgment for dissolution of marriage pursuant to §2-1401 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., on the basis that the husband had concealed assets by not disclosing his accurate income. She reached this conclusion after reading e-mail correspondence between the husband and his counsel in which $350,000 in potential additional profits were discussed, and which were never disclosed during the divorce proceedings. She discovered this e-mail after searching the contents of a cell phone given to one of their children by the husband, who previously owned the cell phone. The trial court granted the husband’s motion to strike the §2-1401 petition on the basis that the e-mail was privileged and the wife could not rely on such communication in furtherance of her petition. The appellate court reversed under the crime-fraud exception to the attorney-client privilege. The court held that the wife’s argument that the husband misrepresented his income, and as such potentially concealed assets, was sufficient evidence to cause a prudent person to suspect the perpetration or attempted perpetration of a fraud. The trial court should have conducted an evidentiary hearing on whether the attorney-client privilege applied at which the wife had the burden of proving that such an exception to the privilege applied. The court remanded for such hearing.
Trial Court Instructed To Consider Whether Husband Waived Attorney-Client Privilege in §2-1401 Action
In Stinauer, supra, a §2-1401 proceeding brought by the wife pursuant to the allegation that the husband fraudulently concealed assets during the divorce proceedings by not disclosing $350,000 in potential additional profits, the appellate court ordered the trial court to conduct an evidentiary hearing on whether the crime-fraud exception to the attorney-client privilege applied. The wife’s sole basis for the §2-1401 petition was an e-mail between the husband and his divorce counsel referencing the potential additional $350,000 in profits. The wife discovered the e-mail by searching the contents of one of their children’s cell phones, which was previously owned by the husband. On remand, the appellate court directed the trial court to consider whether the husband waived the privilege by giving to the minor child his cell phone that contained the alleged privileged communication. The court also reviewed the various tests Illinois courts employ when deciding whether the privilege is waived, including the “express/implied test,” the subjective analysis, and the balancing test, and directed the trial court to determine which waiver test applied and whether the husband waived the attorney-client privilege. 2013 WL 6834804 at ¶¶28 – 33.