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Family Law FLASHPOINTS March 2020

March 13, 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

Second District Upholds Survival of Interim Fees Awarded But Not Paid Prior to Entry of Voluntary Dismissal Order

The husband and wife brought a joint motion to voluntarily dismiss their respective petition and counterpetition on file in In re Marriage of Keller, 2020 IL App (2d) 180960. At the hearing on the motion for voluntary dismissal, the court granted the motion but entered judgment against the husband in favor of the wife’s former counsel in the amount of $7,500, which was derived from an earlier interim fee award entered against the husband that had not been paid. The husband appealed, and the Second District upheld. Relying on the abuse of discretion standard, the court noted that the trial court’s rationale was reasonable in that the husband “should not be allowed to escape liability for a previously established obligation through such a procedural maneuver.” 2020 IL App (2d) 180960 at ¶17. Further, the interim award was converted to a judgment prior to the dismissal of the case, negating the argument that the interim fee order was a temporary order, which expired. Since the dissolution case was ultimately dismissed, the wife’s former counsel would now have to rely on other collections avenues to enforce the judgment and to seek an additional judgment for the balance of any unpaid fees.

Trial Court’s Imputation of Investment Income to Wife for Purposes of Setting Child Support and Maintenance Upheld

In calculating child support and maintenance in In re Marriage of Lugge, 2020 IL App (5th) 190046, the trial court found that the wife was awarded $1,136,535 in investments and $471,500 in cash and applied a 6.5-percent rate of return to $950,000 of those assets that took into account the amount that the wife had to pay off certain debts. At trial, the evidence showed the parties’ investment portfolio had a historical rate of return of 9.93 percent. The trial court was well within its discretion to include the interest income, which was two thirds of the historical rate of return, when calculating maintenance and child support. The trial court also declined to impute to the husband interest income attributable to the $600,000-plus held in his business as retained earnings, which was also affirmed. There was no evidence that the husband had manipulated his income to minimize his support obligations as his testimony indicated that his company needed to keep large cash reserves on hand to acquire bonds for large commercial projects.

Trial Court’s Interim Fee Award Did Not Require Specific Finding That Husband Had Ability To Pay

In In re Marriage of Paris, 2020 IL App (1st) 181116, a highly contentious and heavily litigated case, the trial court ordered that a fund be created with a total amount of $750,000 for litigation costs, with $200,000 coming from a home equity line of credit and $550,000 to be funded by the husband. The husband failed to pay the $550,000, and the trial court entered a commitment order with a purge amount of $550,000. The husband filed a notice of appeal and for a stay, which was granted and then posted a $550,000 bond. The appellate court stated the plain language of §501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., did not require the court to expressly set forth specific findings in an order regarding the husband’s ability to pay and therefore rejected the argument that the order was reversible as a matter of law. Further, the court noted the trial judge was in a better position that it was to assess the nature of the alleged discovery delays as well as the husband’s claims about his current financials. Although the husband argued the majority of his assets were pledged and not accessible, his only evidence presented at the hearing was testimony from his own expert, who opined regarding the possible ramifications to the husband’s financial circumstances if the market suffered a drastic decline. By contrast, the wife’s expert pointed to his significant borrowing power and his overall personal net worth in excess of $20 million. The court also noted that the husband’s claim that he had the inability to pay was contradicted by the fact that he posted the $550,000 bond after his incarceration. The award was not an abuse of discretion.

Interim Fee Award in Favor of Non-Petitioning Party Reversed

Also in Paris, supra, in which the trial court created a $750,000 litigation fund as a result of the wife’s petition for interim and expert fees and costs, the husband refused to deposit the required $550,000. He was subsequently held in indirect civil contempt and took the issue up on appeal. Part of the interim award included fees to the husband’s own counsel in the amount of $200,000, which the husband appealed. The plain language of the relevant portions of the IMDMA did not permit an award of attorneys’ fees to a party who had not petitioned for such fees (750 ILCS 5/501(a), 5/501(c)(1), 5/501(c-1)(3), 5/503(j)). The court rejected the husband’s argument that the order should be vacated because the wife’s counsel of record in the dissolution proceeding was not the same counsel as when the order was entered. Because the husband failed to cite any authority to support his claim, it was deemed forfeited. Forfeiture aside, the court stated that the wife’s counsel’s withdrawal as counsel did not affect the validity of the court’s allocation of fees to that firm. The husband also challenged the validity of the contempt finding, which was upheld.

Plenary Order of Protection Upheld on Grounds of Physical Abuse and Harassment

In Foster v. Statham, 2020 IL App (5th) 190103, the ex-girlfriend, who sought the order of protection, testified as to a specific physical altercation that resulted in the ex-boyfriend’s arrest. Although the ex-boyfriend’s testimony was that he was only responding to the ex-girlfriend’s physical altercation, there was sufficient evidence that he had physically abused her, especially given that he had been placed under arrest and held in custody for three weeks. The evidence was also sufficient that he had harassed her, despite conflicting testimony between the parties. The trial court found the ex-girlfriend to be more credible than the ex-boyfriend and noted that she testified that the following actions caused her emotional distress: parking on the street outside her home and driving slowly by; placing a recording device in her home to listen to her private conversations; sending her incoherent and alarming letters; and showing up at her place of employment and confronting her.

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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