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Family Law FLASHPOINTS October 2019

October 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

Trial Court’s Holding That Ex-Husband Complied with Court Orders Reversed Based on Payment History Shown by State Disbursement Unit

In In re Marriage of Elliott, 2019 IL App (4th) 180628, after hearings on multiple postjudgment issues that had been pending for several years, the trial court entered an order denying a finding of contempt based on the payment history provided by the State Disbursement Unit (SDU). The appellate court reversed and held that the petitioner had met her burden of establishing that the respondent had failed to pay the full amount of the support that he owed. The petitioner established through court orders the amounts that the respondent was required to pay for child support, daycare expenses, and an arrearage. She also introduced the certified payment history from SDU, showing that the total amount of payments the respondent had made was less than the amount that he should have paid. The petitioner’s filings and exhibits established noncompliance, which constitutes prima facie evidence of contempt. Therefore, the burden shifted to the respondent to show why the noncompliance was not willful. At the hearing, the respondent made no argument that he did not have the inability to pay or that the failure to pay was no willful.

Fourth District Holds Pre-2016 IMDMA Did Not Apply to Child Support Proceedings When Motions Were Filed as Early as 2014

In In re Marriage of Elliott, 2019 IL App (4th) 180628, a lengthy and procedurally complex postjudgment child support modification matter in which multiple cross motions to modify child support were pending since 2014, the Fourth District held that the trial court did not err in applying the 2016 version of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., when it determined that no substantial change of circumstances warranted a modification of child support. The court reasoned that §801(c) of the IMDMA did not apply because judgment had yet to be entered on the petition for modification of child support, which was pending at the time the amendments went into effect. In doing so, the Fourth District declined to follow In re Marriage of Benink, 2018 IL App (2d) 170175, 113 N.E.3d 576, 425 Ill.Dec. 429. Under Benink’s analysis of §801(c), because the judgment had already been entered on child support in the parties’ judgment for dissolution of marriage, the modification proceeding would only be subject to the amended Act if it had been filed after the effective date of the amended Act. In Benink, both parties filed modification pleadings in 2013 so the amended version of the IMDMA did not apply. There is now a split in authority with respect to what version of the IMDMA applies to postjudgment support modification proceedings if the petition was filed prior to January 1, 2016.

Trial Court Affirmed on Ruling That Husband Failed To Show Funds Transferred From His Parents’ Trusts Were In Fact Loans

In In re Marriage of Slesser, 2019 Il App (2d) 180505, the husband argued at trial for a declaration that funds transferred from his parents’ trusts created a valid and enforceable lien in the amount of $300,000 each against a piece of marital real estate, and that such liens were marital liabilities. However, at trial, the husband could not produce evidence of loan documents. The trial court found that under the terms of his parents’ trusts, the husband had the power to withdraw income and principal for any purpose, and that he had in fact withdrawn money from the trusts and put the funds into an account under his own name. The trial court further noted that the evidence did not show that the transactions were actual loans, but rather funds he was authorized under the trust documents to withdraw for his own benefit. The appellate court affirmed. The husband provided no evidence that he had any obligation to pay back his parents’ trusts. An attorney drafted and recorded mortgages on behalf of his parents’ trusts, but no note or other loan document was recorded contemporaneously with the mortgages. Without evidence that husband had an obligation to repay the trusts, the mortgage was not a valid encumbrance against the real estate. Therefore, the husband was awarded the real estate at a value that did not include $600,000 of debt he alleged was associated with the property.

Northern District of Illinois Bankruptcy Court Clarifies Application of Automatic Bankruptcy Stay

In In re Welsch, 605 B.R. 682 (Bankr. N.D.Ill. 2019), the ex-wife of a Chapter 13 debtor sought to lift the automatic stay in bankruptcy court so she could seek a contribution to college expenses by her ex-husband. The bankruptcy court denied the motion as unnecessary. Section 362(b) of the Bankruptcy Code, 11 U.S.C. §101, et seq., provides a list of exceptions to the automatic stay, which include, among many items, a modification of an order for domestic support obligations, which includes a debt in the nature of alimony, maintenance, or support of such spouse, former spouse, or child of the debtor. The state court was free to modify the child support order to include college expenses while the bankruptcy was pending. There are only two important types of domestic relations proceedings that are barred by the automatic stay: (1) the division of marital property that is property of the estate; and (2) proceedings to collect on a domestic support obligation from property of the estate.

Illinois Supreme Court Grants Petition for Leave of Appeal in Sharpe v. Westmoreland

In the May 2019 Family Law FLASHPOINTS (available in the IICLE® Online Library to subscribers), we reported on Sharpe v. Westmoreland, 2019 IL App (5th) 170321, 126 N.E.3d 690, 430 Ill.Dec. 602, in which the Fifth District held on an interlocutory appeal that a partner to a civil union whose partner passes away does not have standing under the IMDMA to seek visitation of a minor child as a stepparent. The court recognized a natural born parent’s superior right to the care, custody, and control of his or her child, and the legislature’s omission of any reference to partners joined in a civil union in the definition of stepparents evidenced its intent to exclude civil union partners from the category of nonparents who have standing to seek visitation. The Illinois Supreme Court granted the petition for leave of appeal of the civil union partner. The appellate court opinion can be found here:

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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