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Family Law FLASHPOINTS May 2019

Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP [1], Chicago, Lake Forest & Wheaton
312-641-5560 | E-mail Donald Schiller [2] | E-mail Michelle Lawless [3]

Trial Court’s Judgment for Dissolution Not Compliant with IMDMA Because It Did Not Reference “Child Support” or Provide Explicit Justification for Deviation

In In re Marriage of Peck, 2019 IL App (2d) 180598, the parties’ marriage was dissolved in 2011, and each received a 50-percent equitable property interest in the former marital residence subject to several conditions regarding repayment of loans, obligations, and a bankruptcy case. Seven years later, the wife filed a petition to revive the judgment under §2-1602 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., arguing that her 50-percent property interest was still due and owing plus 9-percent accrued interest. The husband moved to dismiss, which was granted by the trial court, and the appellate court upheld. Section 2-1602 of the Code of Civil Procedure specifically requires that the petitioner plead a statement to the date and amount of the judgment in a motion to revive. The purpose of the statute is to revive a specific judgment debt owed by a judgment debtor. Because the judgment did not provide a specific amount that the wife was owed as her 50-percent property interest, it did not impose a debt on the husband and was not a money judgment. It was an allocation of property between the parties, and the wife could move to enforce the judgment at the trial level.

Partner to Civil Union Does Not Have Standing To Request Visitation as “Stepparent” Under IMDMA

In Sharpe v. Westmoreland, 2019 IL App (5th) 170321, the Fifth District held on interlocutory appeal that a partner to a civil union whose partner passes away does not have standing under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., to seek visitation of a minor child as a stepparent. The court acknowledged that the Civil Union Act provides persons entering into civil unions with the same obligations, responsibilities, protections, and benefits afforded to those persons entering into marriage. However, the plain language of §600(l) of the IMDMA defines a stepparent as someone who is or was married to the parent immediately prior to his or her death — thereby giving him or her standing to seek parenting time and parental responsibilities. The court recognized a natural born parent’s superior right to the care, custody, and control of his or her child and stated that 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.

Indirect Civil Contempt Finding Reversed

In In re Marriage of Pavlovich, 2019 IL App (1st) 172859, the parties’ judgment for dissolution of marriage allocated the wife a condominium and provided that she was not allowed to lease out the property until she had refinanced it. In violation of the judgment, the wife leased out the condo, and the husband brought a petition for rule to show cause. The trial court found the wife in indirect civil contempt and ordered her to turn over the rental proceeds of $5,300 to the clerk of court in order to purge her contempt. The court later amended its judgment and provided that the wife should turn over half ($2,650) to the husband. The wife appealed, and the appellate court reversed, holding that the wife was in indirect criminal contempt of court because the purge was actually a punishment for the wife’s violation of the judgment, not an inducement to future compliance. Because the wife had not received the proper notice that she could be subject to criminal penalties, the order was reversed.

Breach of Contract Claim for Damages in Form of Attorneys’ Fees Under Postmarital Agreement Dismissed

In Davis v. Davis, 2019 IL App (3d) 170744, the husband brought a separate breach of contract claim apart from a pending dissolution of marriage claim under the theory that the wife had breached the agreement by refusing to perform her obligations under it. His claimed damages were the fees he was forced to spend in order to enforce the agreement when the wife had challenged the validity and enforceability of the agreement (in the dissolution case) and lost. The agreement provided that the husband was responsible for his own attorneys’ fees in the dissolution case. The wife brought a motion to dismiss the breach-of-contract claim, which was granted and which the husband subsequently appealed. The appellate court affirmed and held that the husband failed to state a claim on which relief could be granted. Contrary to the husband’s argument, the expense of defending the wife’s challenge to the postmarital agreement was a legal expense connected with the dissolution action. While both actions relied on the same agreement to form the basis of the actions, dissolution proceedings are designed to dispose of all matters connected with the parties’ marriage.

Wife Entitled to Permanent Maintenance at Time of Review

In In re Marriage of Kuper, 2019 IL App (3d) 180094, the husband brought a petition to modify or terminate maintenance when he was age 60 due to retirement. The wife brought a competing petition to increase or extend maintenance. The marriage had been approximately 30 years. The trial court increased the husband’s obligation from $225 per week to $3,767 per month on a permanent basis. The appellate court affirmed. At the time of the hearing, the wife’s assets were valued at $530,000 and she had a sporadic work history of minimum wage jobs. The husband had assets valued at $1.9 million, and he had also inherited over $800,000 from his mother and uncle. Both the trial and appellate courts gave weight to the fact that the husband, while he was withdrawing from his savings to pay expenses, had remarried and was paying for his new wife’s expenses, including upkeep on her prior home and college tuition for her children. The evidence showed that without maintenance, the first wife would just meet her stated expenses, which did not include health insurance as she was uninsured at the time of the hearing. The husband’s assets had increased substantially since the entry of judgment, and therefore he had the ability to pay a permanent maintenance award to his first wife, whose income earning capacity was the same as it was during the marriage.

Amended Maintenance Guidelines Should Not Have Been Used To Calculate Modified Maintenance Amount

In In re Marriage of Kuper, 2019 IL App (3d) 180094, the Third District followed the Fifth District’s ruling in In re Marriage of Harms, 2018 IL App (5th) 160472, 103 N.E.3d 979, 422 Ill.Dec. 615, which held that the maintenance guidelines do not apply to proceedings to modify preexisting maintenance orders. The court reasoned that had the legislature meant for the maintenance formula under §504(b-1) of the IMDMA to be used to calculate modified maintenance amounts, it would have referred to it in §510(a-5). The court also upheld the trial court’s calculation of the husband’s monthly income as $14,114.15, which included his pension payments and the amounts he spent each month on three homes, entertainment, dining out, hobbies, gifts, donations, and his stepchildren’s college education payments. The trial court expressly stated that it did not adopt the wife’s approach of simply imputing all withdrawals from the husband’s savings and investment accounts as income.

For more information about family law, see A PRACTITIONER’S GUIDE TO THE ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE ACT — 2017 EDITION. Online Library subscribers can view it for free by clicking here [4]. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions [5].

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