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Family Law FLASHPOINTS June 2019

June 14, 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 Reversed on Issue of Allocation of SSDI Benefit Received by Minor Child

In In re Marriage of Benyon, 2019 IL App (3d) 180364, the trial court ordered it was inappropriate for either party to pay child support to the other based on a 50/50 parenting schedule, the parties’ respective net incomes, and maintenance payable from the wife to the husband. The court did not include the monthly social security disability insurance (SSDI) dependent benefits that the husband received on behalf of the minor child in the husband’s gross income when reaching such a conclusion and instead found that it was in the best interests of the child that the benefit be deposited in a joint account for the payment of child care expenses, tuition, medical expenses, and extracurricular activities. The husband appealed and sought to retain the total SSDI benefit, subject to a 50-percent obligation toward the additional child’s expenses. The Third District reversed. The SSDI dependent benefit is generated through the labor and earnings of the husband and is intended for the current maintenance of the child. Pursuant to the language of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., the benefit was required to be included in the benefit-generating parent’s gross income for purposes of calculating child support. Further, there is no statutory authority that allows a trial court to order the benefit to be placed into a separate account for the payment of expenses.

Wife Was Not Cohabitating and Termination of Maintenance Was Not Warranted

In In re Marriage of Churchill, 2019 IL App (3d) 180208, the husband filed a petition to terminate temporary maintenance on the basis that his wife was cohabitating with her boyfriend during the pendency of the divorce. The trial court took the issue with the underlying trial and found there was no cohabitation. The husband appealed. The Third District affirmed, holding that the wife was involved in a typical dating relationship and that it did not rise to the level of a de facto marriage. The husband’s private investigator could not find definitive evidence that the boyfriend had spent the night at the wife’s house for a 37-week period, although the wife admitted he stayed there occasionally; the parties had separate residences; the boyfriend did not have a key to the wife’s residence; they did not have any joint accounts or commingle their finances; they each paid their own expenses; and although they vacationed and spent holidays together, that did not translate to a de factomarriage.

Permanent Maintenance in Amount of $10,000 Per Month Upheld

In Churchill, supra, the trial court awarded the wife permanent maintenance although the length of the marriage was 17 years at the time the wife filed her petition for dissolution of marriage and the Third District upheld. The statutory maintenance guidelines did not apply because the husband’s income was greater than $500,000 per year. The wife was 49 years old with a high school diploma and some college coursework. She had not worked outside the home during the marriage except for 10 hours per week in an hourly wage position. In contrast, the husband had grown his business during the marriage with an income in excess of $500,000 annually and the parties had lived a “lavish” lifestyle during the marriage. The property was divided 50/50 with the wife receiving nonliquid assets and the husband retaining the business. Both parties’ monthly expenses exceeded the husband’s income, but the husband’s ongoing opportunities to earn income far exceeded the wife’s and her income was not sufficient to maintain the lifestyle established during the marriage. Permanent maintenance in the monthly amount of $10,000 was not an abuse of discretion.

Ex-Husband’s Claim for Damages Against Ex-Wife’s Attorney and Healthcare Provider Allowed To Proceed for Violation of Mental Health and Developmental Disabilities Confidentiality Act

In Garton v. Pfeifer, 2019 IL App (1st) 180872, the father brought a petition for indirect criminal contempt against the mother relating to certain postjudgment parenting orders. Without leave of court, the mother’s attorney issued a subpoena for records to Northshore University HealthSystem seeking the father’s mental health records, claiming they were relevant to the proceedings. Northshore complied and sent the records directly to the trial court, which sealed the records and required the wife’s attorney to reissue the subpoena with proper notice and for the records to be delivered to the court. The court also gave the father an opportunity to file written objections to an in camera inspection of the records. A second subpoena was issued, but Northshore sent the records directly to the mother’s attorney, whose partner opened the envelope. The mother’s attorney tendered the records to the court and stated that he had not reviewed them. The court ultimately denied the mother’s request for release of the records, for an in camera inspection of the records, and ordered the records sealed. The father subsequently filed a separate damages claim against mother, her counsel, and Northshore. The First District held that the father’s claims against the mother’s attorney and Northshore survived a motion for summary judgment because under the plain language of §10(d) of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1, et seq., no subpoena should have been issued or responded to without leave of court and prior notice to the treatment provider (Northshore) and treatment recipient (father). The record was clear that neither the attorney nor Northshore had complied with the stringent provisions of the Act. Further, the father had never introduced his mental condition in the postjudgment matter. Finally, §15 of the Act provides that any person aggrieved by a violation of the Act may sue for damages, an injunction, or other appropriate relief.

Award of Permanent Maintenance on Review Upheld

In In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, after a maintenance review hearing in 2017, the trial court applied the maintenance statute in effect at the time and extended the wife’s maintenance to a permanent maintenance award of $450 per month. The husband appealed both the permanent award and the version of the statute that the trial court applied. The Fourth District affirmed on both issues. The court followed the Second District’s reasoning in In re Marriage of Carstens, 2018 IL App (2d) 170183, 101 N.E.3d 181, 421 Ill.Dec. 744, and held that §801(c) required the version of the IMDMA in effect at the time the wife filed her petition to extend maintenance to be applied. That version was the one that included the statutory guidelines both as to amount and duration. The version of the IMDMA that was in effect at the time the parties divorced was the 2014 version which had no statutory guidelines. The court further held that a maintenance “review” hearing was akin to a “modification” hearing for purposes of interpreting §801(c). The parties’ marriage had been in excess of 20 years, and the wife’s income had been consistent at approximately $50,000 both at the time of the divorce and two years later at the time of the review. The trial court’s detailed findings about the wife’s continuing need for maintenance was not an abuse of discretion given the length of the marriage, and the parties’ respective needs and incomes.

For more information about family law, see A PRACTITIONER’S GUIDE TO THE ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE ACT AND THE ILLINOIS PARENTAGE ACT — 2017 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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