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Family Law FLASHPOINTS November 2019

November 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

Illinois Supreme Court Vacates Trial Court’s Finding That §513 of IMDMA Is Unconstitutional as Violation of Stare Decises

Yakich v. Aulds, 2019 IL 123667, came before the Supreme Court on a direct appeal from the Circuit Court of DuPage County after that court held §513 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., unconstitutional because it violated the Equal Protection Clause of the U.S. Constitution. At issue was the payment of college expenses for a child of unmarried parents. The mother petitioned the court for the father to contribute to the child’s college expenses, and the father objected because he had not had input into the school selection. The trial court initially ordered the parents to each contribute 40 percent and the child to contribute 20 percent to the child’s educational costs, but prior to ruling indicated that it felt that the statute was unfair in the way married and unmarried parents were treated with respect to their obligation to contribute to their children’s college education and their input into the college selection process. Thereafter, the father challenged the constitutionality of §513, and the trial court ultimately held the statute unconstitutional. In ruling, the trial court disagreed with the reasoning of the Supreme Court case Kujawinski v. Kujawinski, 78 Ill.2d 563, 402 N.E.2d 181, 37 Ill.Dec. 291 (1978), stating it was outdated due to societal changes in family structures, including an increased number of divorced and never-married parents. The Supreme Court held that the trial court violated the principles of stare decisis by failing to apply binding precedent. The court stated, “While the trial court is free to question the continued vitality of Kujawinski, it lacks the authority to declare that precedent a dead letter.” 2019 IL 123667 at ¶13. Because the trial court may not overrule prior precedents of the Supreme Court, the Supreme Court vacated the trial court’s ruling, while making it clear it expressed no opinion on the merits.

Change in Custody Alone Is Enough To Establish Substantial Change in Circumstances for Purposes of Modifying Child Support

In In re Marriage of Izzo, 2019 IL App (2d) 180623, the father petitioned to reduce his monthly child support, claiming that the substantial change in circumstances was his increase in overnight parenting time from 15 percent to 45 percent since the entry of the child support order. The trial court denied the petition to modify and held that his increased parenting time could not constitute a substantial change in circumstances because the change had occurred five years prior to the filing of his petition. The appellate court reversed. To obtain a reduction, the obligor parent must prove that there has been a substantial change of circumstances since the entry of the most recent support order. A significant change in a custodial arrangement, by itself, is sufficient to establish a substantial change that would justify the modification of child support. The father also advanced two other allegations to justify a substantial change of circumstances that the appellate court said it did not need to address.

Trial Court’s Order Awarding Wife $60,000 in Lost Equity of Former Marital Residence Reversed

In In re Marriage of Jones, 2019 IL App (5th) 180388, a second appeal of this case, the issue on appeal was whether the trial court exceeded its authority under the appellate court’s mandate concerning the marital residence. At the original trial, the parties agreed there was $100,000 of equity in the marital residence. The trial court ordered the property sold, with the proceeds split 60/40 with the wife, but the court was never informed by the husband at trial that foreclosure proceedings had been initiated against the property for his failure to pay the mortgage and taxes. Eventually the foreclosure was perfected, causing a complete loss of any equity. On the first appeal, the court vacated the trial court’s contempt finding against the husband because he could not purge himself of the contempt because he could not list the property for sale since it had already been foreclosed on. On remand, the trial court ordered the husband to pay the wife $60,000, which was 60 percent of the lost equity in the residence as a result of the foreclosure. The appellate court again reversed in this appeal because the value of the property could not have been $100,000 at trial because of the foreclosure. Therefore, it was error to award the wife $60,000. Essentially, the trial court’s contempt power was nonexistent to enforce its judgment regarding the residence because there was never any value to the residence. However, the court noted that on remand the trial court had several equitable powers available to it and instructed the court to consider the wife’s motion to modify, which was still pending when she requested maintenance for the lost equity in the marital residence.

Contribution to and Allocation of §513 Expenses in MSA Upheld

In In re Marriage of Wilhelmsen, 2019 IL App (2d) 180898, the husband sought several avenues to reduce his obligation to contribute to his children’s 529 college savings accounts despite the fact the marital settlement arrangement (MSA) provided the parties would pay for their children’s college expenses. Further, the MSA ordered the husband to pay $79,301.44 into the children’s 529 plans, such amount representing a support arrearage the husband owed the wife at the time of judgment. Within a year of the entry of judgment, the husband filed a petition to vacate the judgment, which was denied. He then filed a petition for voluntary bankruptcy. The wife prevailed on seeking a finding that the $79,301.44 was a domestic support obligation and nondischargeable in bankruptcy. The husband later filed a petition to modify support when the oldest child emancipated and also sought an order that he had no obligation to contribute to his college expenses, which was denied. The husband was ordered to contribute 40 percent to the child’s college education, and the court declined to modify his obligation to contribute the support arrearage to the 529 plans. The husband appealed, and the appellate court affirmed. It is well established that the parties to a divorce action may voluntarily settle their property interests, and that is exactly what the parties did with the provision regarding the payment of the debt owed to the wife for support. The language of the agreement also did not state that the husband’s repayment of such marital debt would reduce his future college contribution obligation, and had they intended such a reduction, they would have said so. The court also opined in dicta that the husband’s argument that the bankruptcy court’s classification of the arrearage as a domestic support obligation immediately made the debt modifiable had no legal support whatsoever.

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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