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Family Law FLASHPOINTS May 2020

May 15, 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

Two-Year Income Average Upheld for Purposes of Calculating Child Support and Maintenance

In In re Marriage of Gabriel, 2020 IL App (1st) 182710, a dissolution of marriage trial, the trial court used an average of the husband’s historical income for two years for purposes of setting maintenance and child support and found his average annual gross income to be $82,572. The husband appealed. The appellate court upheld the two-year-income-averaging approach due to the findings that the husband’s current income was difficult to ascertain because of his lack of credibility and his failure to disclose the totality of his sources of income. The husband’s 2017 W-2 reported income was half of his 2016 W-2 reported income, and the husband did not offer a plausible explanation for the reduction at trial. The appellate court acknowledged that while there was support for the husband’s argument that at least three years should be used to obtain an accurate income picture, the number of years to consider is generally left to the discretion of the trial judge. In this case, the trial judge did not err in excluding the husband’s 2018 income since the husband testified that he could not remember what his 2018 income was and there was no other evidence in the record of his 2018 income.

Trial Court’s Failure To Deduct Husband’s Maintenance Payments from His Net Income When Calculating Child Support Reversed

In Gabriel, supra, the husband appealed the trial court’s calculation of child support because it did not deduct his maintenance payment from his net income when performing the statutory calculation. The husband also appealed the trial court’s upward deviation from the statutory award. The appellate court reversed the trial court’s calculation as plain error since §505(a)(3)(F)(II) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 705 ILCS 5/101, et seq., states that maintenance obligations pursuant to court order shall be deducted from the parent’s gross income when calculating net income for the purposes of child support and remanded for further proceedings to correct the calculation. With respect to the issue of a deviation, the court held the trial court made the necessary written findings and did not abuse its discretion in determining that a deviation was appropriate in light of (1) the children’s needs and history of the case, (2) the husband’s demonstrated history of noncompliance with support, (3) the wife’s disproportionate share of overnights and overall parenting time, and (4) the fact that the husband received additional income that he did not disclose.

Trial Court Erred in Not Assessing Child Support Judgment Interest from Due Date of First Unpaid Installment

In a heavily contested postjudgment action, the trial court entered several orders and held several hearings on a number of motions filed by both parties. In re Marriage of Westlund, 2020 IL App (1st) 190837. The mother ultimately appealed the calculation of statutory interest on the child support arrearage as well as the calculation of the arrearage. The calculation of the arrearage and interest was complex due to the fact that the court changed the custodial arrangement of the minor child in the middle of the proceedings. Ultimately, the trial court ordered interest on the amount of the father’s support arrearage calculated from February 2016, which was the date the court determined the total arrearage amount, through a subsequent court order in 2018. The mother appealed and argued that the interest should have been calculated from the first child support due date in 2009, not the date when the court determined the arrearage. The appellate court reversed. Pursuant to §505(b) of the IMDMA, interest on unpaid child support begins to accrue 30 days after the missed payment’s original date. The court upheld the calculation of the actual arrearage.

Trial Court Has Broad Powers To Enforce Its Own Judgments, Including Signing Deeds To Transfer Real Estate if Parties Do Not Cooperate

After a dissolution of marriage trial, the circuit court awarded the wife the family farm and ordered her to pay the husband $200,000 in settlement of the marital estate. In re Marriage of Warner, 2020 IL App (3d) 190198. The judgment gave the wife the option of making the payment either by a set date or within 30 days of the wife refinancing or selling the farm. The judgment provided that if the wife could not make the payment by virtue of a partial sale of the farm or by refinancing, she would have to sell the entire farm. Nearly two years after the entry of judgment, the husband had still not received his payment and instituted proceedings to enforce the judgment and compel sale of the farm. The wife alleged that she had a buyer, but the husband alleged that the wife never gave him a copy of the sales contract. Later, the husband alleged that he had secured buyers with a higher contract price. Several motions and hearings ensued, and the wife contested the purchase by the buyers the husband had found. The court ultimately ordered that the farm be sold to the buyers the husband had secured because they were offering more for the property and ordered the wife to cooperate. The court also ordered the closing to take place in open court so that the court could sign any necessary documents absent the wife’s appearance. The wife appealed, arguing that the trial court did not have authority to modify provisions relating to property settlements, but the appellate court affirmed. The trial court has indefinite jurisdiction to enforce its judgments, and the actions of the court did not modify the property settlement, but rather enforced the terms of its original judgment. A modification occurs only when there is a new obligation as to one or both parties. By compelling the parties to appear in open court for the closing, the court was enforcing the wife’s obligation to sell the entire farm if she could not pay the husband the $200,000, not modifying its original judgment.

For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS (IICLE®, 2018). 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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