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Family Law FLASHPOINTS February 2020

February 14, 2020Print 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

Constructive Trust Over Portion of Ex-Husband’s Disability Pension in Favor of Ex-Wife Upheld

In In re Marriage of Shulga, 2019 IL App (1st) 182028, the ex-wife of a former Evanston firefighter filed a third-party complaint against the surviving spouse of the firefighter, alleging the second wife was unjustly enriched because she received 100 percent of the available benefits after the firefighter passed away. The first wife had been married to the firefighter for over 20 years and received 50 percent of the marital portion of his City of Evanston pension plan in their divorce. The second wife had been married to the firefighter for nine months when he passed away. Before his death, the firefighter applied for and was granted a disability pension benefit. Thereafter, the second wife applied for and received 100 percent of the available death benefits from the pension fund. The trial court found the second wife was unjustly enriched and ordered the imposition of a constructive trust in favor of the first wife for 50 percent of the gross monthly amount received by the second wife. When a pension recipient is eligible for retirement pay but is receiving disability income instead of retirement income, the petitioner should be paid the percentage of what would be the normal retirement benefits. Because the firefighter was already eligible for retirement when he was awarded disability benefits, and he chose to receive disability benefits rather than retirement benefits, those benefits were retirement in substance. Therefore, the first wife was correctly entitled to 50 percent of those payments.

Maintenance Termination Reversed and Remanded for New Trial on Grounds of Numerous Evidentiary Errors

In In re Marriage of Sadovsky, 2019 IL App (3d) 180204, an emergency room doctor brought a petition to terminate maintenance after he retired due to extreme stress. At trial, the court found that he had good-faith reasons for retiring and was not trying to evade paying maintenance, and therefore the maintenance was terminated. At the hearing, the trial court barred the wife’s introduction of an expert report and testimony. The wife’s expert intended to introduce a report and testify regarding an evaluation of the husband as an emergency room doctor and other potential employment opportunities available to him. An edited report was presented at trial rather than the report that was issued prior to trial, which was barred. The appellate court held that the subject matter and conclusions were the same as the report tendered prior to trial, and only the paragraphs had been reorganized and renamed. The husband was not prejudiced by its admission, and it should have been admitted along with the expert’s testimony. The trial court also refused to allow the wife to testify about her lifestyle regarding the marriage as irrelevant. The appellate court reversed based on the offer of proof, which showed the parties had an affluent lifestyle during their 20-plus year marriage and noted the statutory requirement that the court consider the lifestyle the parties had lived during the marriage. In sum, the numerous evidentiary errors prejudiced the wife and affected the trial court’s ultimate determination to terminate maintenance.

Maintenance Extension upon Review Upheld

The husband appealed the order granting the wife’s petition to extend maintenance upon review. In re Marriage of Brunke, 2019 IL App (2d) 190201. The parties had been married for over 20 years, and the trial court found that due to the wife’s age (68), it was unlikely she would able to attain employment to earn an income that would approximate her standard of living during the marriage. The court extended the $3,000-per-month maintenance award until the husband retired, which was anticipated to be when he turned 65 because of mandatory retirement at his company. The wife appealed the court’s failure to award permanent maintenance. The appellate court upheld on both issues. The trial court did not abuse its discretion in extending maintenance given the wife’s age and her lack of employability; because the wife received substantial assets in the divorce totaling at least $1.2 million, permanent maintenance was not required under the facts.

Review Proceedings Are Not Governed by 2016 Version of IMDMA Under Which Judgment Was Entered in 2012

In a maintenance review proceeding, In re Marriage of Brunke, 2019 IL App (2d) 190201, in which the trial court granted the wife’s petition to extend maintenance at the rate she was receiving the judgment (entered in 2012), the wife appealed the trial court’s failure to apply the 2016 version of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., under which she argued she would have received indefinite maintenance in an amount equal to approximately $5,000 more per month. The Second District held that the language in §801(c), which refers specifically to modification proceedings, does not address review proceedings, and therefore, a maintenance review hearing does not fall within the parameters of §801(c) such that the guidelines should have been applied in this matter. Modification proceedings and review proceedings are distinguishable because a review considers a prior court order whereas a modification arises from a substantial change in circumstances. The court noted that its opinion was contrary to In re Marriage of Kasprzyk, 2019 IL (4th) 170838, 128 N.E.3d 1105, 435 Ill.Dec. 935.

Increase in Parenting Time Alone Not Substantial Change of Circumstances Warranting Modification of Child Support

In In re Marriage of Wengielnik, 2020 IL App (3d) 180533, the trial court granted a motion for directed finding submitted by the wife after the husband presented his case, which was essentially that the change in parenting time from 82 overnights under the original agreement to between 130 – 148 overnights in the modified agreement was a substantial change in circumstances. No evidence was offered showing any change in the financial circumstances of either party or the child. The appellate court upheld. Further, the statute relating to the modification of parenting time (750 ILCS 5/610.5) requires entirely different considerations than the statute relating to a modification of child support (750 ILCS 5/510). 2020 IL App (3d) 180533 at ¶15. The court noted that the record showed no discussion about how the change in parenting time impacted the parties’ respective finances or whether there were any changes in the child’s needs. The husband had only presented the court with a calendar showing the parenting time that he did exercise, which was not enough to fulfill the burden of proving a substantial change.

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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