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Family Law FLASHPOINTS February 2019

February 15, 2019Print This Post Print This Post

Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
312-641-5560 | E-mail Donald Schiller | E-mail Michelle Lawless

Trial Court’s Judgment for Dissolution Not Compliant with IMDMA Because Judgment Did Not Reference “Child Support” or Explicitly Provide Why Deviation on Child Support Was Appropriate

In In re Marriage of Fisher, 2018 IL App (2d) 170384, the mother brought a motion to modify child support alleging a substantial change of circumstances. The original marital settlement agreement (MSA), which was incorporated into a judgment for dissolution of marriage, had capped the father’s income for purposes of calculating child support at $300,000 and had the following language:

The 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. 2018 IL App (2d) 170384 at ¶3.

Because of this stipulation by the parties at the time of the divorce, the trial court granted the father’s motion to dismiss, and the 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 the father’s income for child support purposes, was in the children’s best interests. With respect to the underlying case, the appellate court held that even if the trial 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.

Trial Court Entitled To Review Maintenance Award Even Though Original Unallocated Support Period Had Passed

In In re Marriage of Wojcik, 2018 IL App (1st) 170625, a postjudgment action, the wife filed a petition for review of maintenance weeks after the 60-month term for the husband to pay unallocated support passed. The language in the MSA provided that the unallocated support was reviewable. The husband filed a motion to dismiss arguing that the wife was not entitled to additional maintenance because she did not file her petition for review within the 60-month term established by the MSA. 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, 834 N.E.2d 71, 295 Ill.Dec. 846 (3d Dist. 2005), in which 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 MSA prohibited the wife from seeking the trial court from considering the extension of the maintenance payments.

Award of Permanent Maintenance Upheld, but Interest on Retroactive Maintenance Reversed

In Wojcik, supra, a postjudgment action in which the trial court ordered permanent maintenance at a review, the husband appealed both the amount and duration. The trial court did not abuse its discretion when setting the amount or duration because it found that the wife’s ability to earn future income was impaired by her domestic duties during the marriage, which allowed the husband’s career to thrive. The wife had also properly attempted to rehabilitate herself when she gained employment postdivorce 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 §504(b-5) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., until the trial court entered the order setting the monthly amount and therefore the retroactive portion was not “unpaid.” 2018 IL App (1st) 170625 at ¶43.

Section 610 of Parentage Act Creates Rebuttable Presumption for DNA Testing

In In re Marriage of Sparks, 2018 IL App (1st) 180932, a 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, the 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. The mother had opposed genetic testing, which the father had requested, and argued that the court should have considered the best interests of the child before ordering the testing. Section 401 of the Illinois Parentage Act of 2015, 750 ILCS 46/101, et seq., provides that when a party or a child requests genetic testing, the circuit court shall order the test unless in the court’s discretion one of the following applies under §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 interests to deny DNA testing pursuant to §610(a). The appellate court held that under §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 §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 §619(a) factors, but instead provided that, under §401, the motion may be denied only when the court finds the §610(a) factors are present. When the court finds that those factors are not present, as in this case, the court must enter the order for testing.

Guardian ad Litem Not Required To Be Appointed in Termination of Parental Rights Case

In Sparks, supra, a heavily contested parentage action, the court did not appoint a guardian ad litem 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 §410, and therefore §610 was not applicable. Section 610(b) provides that “[i]n a proceeding involving the application of this Section [§610], a minor or incapacitated child must be represented by a guardian ad litem, child’s representative, or attorney for the child.” [Emphasis added by Sparks court.] 2018 IL App (1st) 180932 at ¶15, quoting 750 ILCS 46/10(b). The mother’s argument that the child should have had representation and her reliance on certain Illinois caselaw 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.

For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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