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Family Law FLASHPOINTS July 2019

July 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

Wife Made Prima Facie Case of Dissipation with Respect to Withdrawals from Bank Account in Excess of Living Expenses

In In re Marriage of Hamilton, 2019 IL App (5th) 170295, at trial, the wife testified about and introduced into evidence several spreadsheets that she argued made a prima facie showing that the husband had dissipated over $160,000 in unaccounted cash withdrawals from his bank accounts from 2010 through the first half of 2016. Her reasoning included an analysis of his stated living expenses on his financial disclosure compared to his total withdrawals from his bank account statements. He did not take the witness stand to rebut the evidence and argued that the wife had simply not met her burden of providing a prima facie case of dissipation. The trial court agreed and ruled that no prima facie case had been made. The wife appealed, and the appellate court reversed. Dissipation is premised on the diminution or devaluation of the marital estate. In this case, the court held that dissipation can also be based on evidence that a spouse withdrew funds that far exceeded his or her living expenses over a period of months or years. The court also held that the wife did not meet her burden of proving when the marriage began undergoing an irretrievable breakdown; therefore, she was limited to claiming dissipation at the time of the parties’ actual separation.

Trial Court’s Order That Marital Home and Rental Property Be Sold and Proceeds Divided Was Not Abuse of Discretion Due to Lack of Competent Valuation Evidence

In Hamilton, supra, neither party presented the trial court with expert opinion testimony as to the value of the marital residence and a piece of rental property. While the husband testified as to his own personal knowledge of what he believed the combined values of the two properties were worth and the wife presented evidence as to the assessed value of the properties based on the real estate taxes, both of those opinions of value were rendered two years prior to the entry of judgment. The trial court ultimately ordered the properties sold and the proceeds split, and the wife appealed. The appellate court upheld. It is the responsibility of the parties in a divorce action to provide the court with sufficient evidence of the value of the property. The trial court did not abuse its discretion in ordering the properties sold in light of the lack of relevant valuation evidence.

Horse-Related Expenses Are in Nature of Extracurricular Activity Expenses for Minor Child

In Hamilton, supra, the trial court held that expenses associated with the minor child having her own horses (which were bought by agreement of the parties during the marriage) and participating in horse-related events were not in the nature of extracurricular activity expenses because it was not part of her educational curriculum. The appellate court reversed, relying heavily on the language of the 2017 Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., amendments, even though the amendments were not in effect when the trial court ruled. The language of §505(a)(3.6) explains extracurricular activity expenses as those expenses that are intended to enhance the educational, athletic, social, or cultural development of the child. The child’s horse activity expenses clearly enhanced her development in each of the areas and therefore should not have been excluded from the court’s judgment. The appellate court remanded to the trial court for determination whether all or some portion of those expenses were reasonable and how much the husband should be required to contribute.

Attorney Appointed as GAL in Probate Case Had Quasi-Judicial Immunity Because Appointment Corresponded to GAL Appointment Under IMDMA

In Nichols v. Fahrenkamp, 2019 IL 123990, a matter of first impression, the Illinois Supreme Court held that an attorney’s appointment as a GAL under the Probate Act, 755 ILCS 5/1-1, et seq., was akin to the appointment of a GAL under the IMDMA and reversed the appellate court’s holding that the GAL could be held liable for allegedly failing to protect his client’s interests in a probate proceeding. The court engaged in a lengthy discussion of the various amendments of the IMDMA’s provisions pertaining to GALs and child representatives compared to the language of the Probate Act as well as several Illinois and out-of-state opinions on the limitations on liability of a GAL. Relying on the U.S. Supreme Court case Cleavinger v. Saxner, 474 U.S. 193, 88 L.Ed.2d 507, 106 S.Ct. 496 (1985), the court utilized the “functional test” to evaluate whether the GAL’s role is sufficiently connected to the judicial process such that immunity from litigation was warranted. 2019 IL 123990 at ¶15. Ultimately, the court held that the early cases decided under the Probate Act, in which GALs acted much like traditional attorneys, were outdated and that the appointment corresponded to a GAL under the IMDMA. It relied on In re Mark W., 228 Ill.2d 365, 888 N.E.2d 15, 320 Ill.Dec. 798 (2008), which held that the traditional role of the GAL is not to advocate for what the ward wants but, instead, to make a recommendation to the court as to what is in the ward’s best interests. This is consistent with the function of the GAL under the IMDMA as an investigator. Therefore, the GAL was protected by quasi-judicial immunity.

Bifurcation Order Reversed After Litigant’s Death

In Claxton v. Reeves, 2019 IL App (5th) 170200, the trial court entered a bifurcated judgment in the middle of trial due to allegations made on the record that the husband’s health was dire. The husband did not appear for a day of trial, and the record provided that his counsel advised the court he was in the hospital and was in line for a liver transplant. The wife did not agree with the representations made by the husband’s counsel but conceded that her husband had significant health issues. The court found sua sponte that there were appropriate conditions to warrant a bifurcated judgment. The wife opposed the ruling because under a premarital agreement, she had waived off on any of the husband’s retirement benefits. The husband’s personal representative filed a confession of error and adopted the wife’s position that there was not enough actual evidence regarding the husband’s health on the record, nor a written request for a bifurcated judgment, which would be appropriate circumstances to enter the bifurcation. In light of the confession of error, the court reversed the bifurcated judgment, which ultimately allowed the wife to receive the survivor benefit of the husband’s pension. While the court limited the holding to the facts of the case, this holding emphasizes the importance of having a written motion for bifurcation on file as well as supporting evidence in the record for the bifurcation.

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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