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Family Law FLASHPOINTS December 2020

Donald C. Schiller | Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
Michelle A. Lawless | Law Office of Michelle A. Lawless LLC, Chicago
312-641-5560 | E-mail Donald Schiller | 312-741-1092 | E-mail Michelle Lawless

Top Ten Family Law FLASHPOINTS of 2020

1. Illinois Supreme Court Holds Person Who Is Partner in Civil Union Is “Stepparent” Under IMDMA

In Sharpe v. Westmoreland, 2020 IL 124863, the Illinois Supreme Court answered the following two certified questions in the affirmative: (a) whether a party to a civil union has standing to request visitation with his or her deceased partner’s child as a stepparent; and (b) whether that party has standing to request parental responsibilities. The Illinois legislature expressly stated that the purpose of the Civil Union Act, 750 ILCS 75/1, et seq., was to provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses. Therefore, when a child’s parent enters into a civil union with an individual who is not that child’s other parent, that individual becomes the child’s stepparent as defined by the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. The court made sure to state that its holding is expressly limited to only those parties who have chosen to enter in a civil union instead of a marriage.

2. Illinois Supreme Court Holds Permissive Military Credit Earned Prior to Marriage but Purchased During Marriage with Marital Funds Is Marital Property

In In re Marriage of Zamudio, 2019 IL 124676, 155 N.E.3d 1096, 440 Ill.Dec. 840, the sole issue on appeal was whether the husband’s permissive pension service credit based on time served in the military 20 years prior to the marriage was marital or nonmarital property. In its holding, the court relied solely on the statutory construction of the IMDMA and the Illinois Pension Code. Specifically, the Illinois Pension Code requires that a servicemember have up to four years of active duty service without a dishonorable discharge, as well as the payment of the statutory monetary contribution, in order to acquire the permissive service credit. Therefore, the permissive service credit was not acquired until the payment was made during the marriage — not when the active duty service was performed. Therefore, the permissive service credit was acquired only after all requirements for obtaining the credit were satisfied.

3. Constructive Trust Over Portion of Ex-Husband’s Disability Pension in Favor of Ex-Wife Upheld

In In re Marriage of Shulga, 2019 IL App (1st) 182028, 144 N.E.3d 574, 437 Ill.Dec. 462, a former Evanston firefighter’s ex-wife, who had been married to him for over 20 years and awarded 50 percent of the marital portion of his pension plan, filed a third-party complaint against the surviving spouse of the firefighter, alleging that the second wife was unjustly enriched because she received 100 percent of the available benefits after the firefighter passed away. 2019 IL App (1st) 182028 at ¶8. The second wife had been married to the firefighter for 9 months when he died, and she received 100 percent of the available death benefits from the pension fund. Before his death, the firefighter applied for and was granted a disability pension benefit. The second wife was unjustly enriched, and the first wife was entitled to the creation of a constructive trust for 50 percent of the gross monthly amount received by the second wife. Because the firefighter was already eligible for retirement when he was awarded disability benefits and he chose to receive disability benefits rather than retirement benefits, those benefits were retirement in substance.

4. Increase in Parenting Time Alone Not Substantial Change of Circumstances Warranting Modification of Child Support

In In re Marriage of Wengielnik, 2020 IL App (3d) 180533, 146 N.E.3d 743, 438 Ill.Dec. 674, the appellate court upheld the trial court’s order granting a motion for directed finding that was submitted by the wife after the husband presented his case, which was essentially that the change in parenting time from 82 overnights under the original agreement to between 130 – 148 overnights in the modified agreement was a substantial change in circumstances. The court noted that the record showed no discussion about how the change in parenting time impacted the parties’ respective finances or whether there were any changes in the child’s needs. 2020 IL App (3d) 180533 at ¶17. The husband presented the court with only a calendar showing the parenting time that he did exercise, which was not enough to fulfill the burden of proving a substantial change.

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

In In re Marriage of Keller, 2020 IL App (2d) 180960, 156 N.E.3d 1078, 441 Ill.Dec. 329, the husband and wife brought a joint motion to voluntarily dismiss their respective petition and counterpetition on file. 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 Second District upheld the trial court’s rationale 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 that had expired.

6. Pretrial Memorandum Properly Considered by Trial Court in §2-1401 Action

In In re Marriage of Onishi-Chong, 2020 IL App (2d) 180824, 153 N.E.3d 1071, 440 Ill.Dec. 495, the wife filed an action pursuant to §2-1401 of the IMDMA, 735 ILCS 5/2-1401, alleging fraud on the part of the husband in an effort to conceal his income during a divorce case, in response to which the husband filed a motion for summary judgment that was granted. The trial court properly considered the wife’s previously submitted pretrial memorandum to the court. Illinois Rule of Evidence 408(a) states that such “settlement” offers are inadmissible only when they are offered “to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.” Because the memorandum was not offered to prove liability for or invalidity of a claim and did not involve a prior inconsistent statement, the court’s consideration of it was permissible. 2020 IL App (2d) 180824 at ¶33.

7. Trial Court Did Not Abuse Discretion When Striking Portion of Custody Judgment Requiring Parties To Seek Written Report from Parenting Coach Before Filing Custody or Visitation Motion

In In re Marriage of Wendy S., 2020 IL App (1st) 191661, 148 N.E.3d 272, 439 Ill.Dec. 532, the appellate court held that the requirement of the parties’ amended custody judgment that the parties must first seek a written report from the behavioral parenting coach expert prior to filing a motion regarding custody or visitation was properly vacated by the trial court. Such language goes against the legislative intent of the IMDMA, which is that parties to a custody judgment may seek modifications of their own accord. The appellate court also noted that the parties had a 12-page custody judgment and that the section in question was one sentence out of the entire judgment. Therefore, the trial court had authority to strike one sentence in the judgment as a minor modification without a showing of a substantial change of circumstances if the change was in the best interests of the children pursuant to §610.5(e)(2) of the IMDMA, 750 ILCS 5/610.5(e)(2).

8. Amended Statutory Maintenance Guidelines Did Not Apply to Review Proceedings Because Petition for Review Was Filed Prior to Effective Date of Amendment

The Third District addressed the issue of the appropriate maintenance statute to apply when the relevant petition in question was filed prior to the January 1, 2017, effective date of the amended statute in In re Marriage of Burdess, 2020 IL App (3d) 190342. In Burdess, the wife filed for a review of her maintenance in August 2015. The husband later moved to terminate maintenance in 2018. The trial court heard both matters at the same time and, in reducing the wife’s maintenance award, found that §504(b-8) of the IMDMA, 750 ILCS 5/504(b-8), did not apply because it was not in effect in 2015 when the wife filed her petition for review. The trial court reduced the wife’s monthly maintenance from $1,000 per month to $675 per month based on the husband’s reduction in income, which was not in bad faith, and the wife’s ongoing need for maintenance. Although the current §504(b-8) provides guidance on what types of maintenance awards a court can issue upon review and references the statutory guidelines, the statute in effect in 2015 did not contain those statutory guidelines. Therefore, the trial court did not err when it did not apply the guidelines. The appellate court’s decision is consistent with the prior caselaw of In re Marriage of Kuper, 2019 IL App (3d) 180094, 125 N.E.3d 568, 429 Ill.Dec. 862, and In re Marriage of Harms, 2018 IL App (5th) 160472, 103 N.E.3d 979, 422 Ill.Dec. 615.

9. Review Proceedings Are Not Governed by 2016 Version of IMDMA when Judgment Was Entered in 2012

In In re Marriage of Brunke, 2019 IL App (2d) 190201, 125 N.E.3d 568, 429 Ill.Dec. 862, a maintenance review proceeding in which the trial court granted the wife’s petition to extend maintenance at the rate she was receiving in the judgment (entered in 2012), the wife appealed the trial court’s failure to apply the 2016 version of the IMDMA, under which she argued she would have received indefinite maintenance in an amount equal to approximately $5,000 more per month. The Second District held that the language in §801(c) of the IMDMA, which refers specifically to modification proceedings, does not address review proceedings; therefore, a maintenance review hearing does not fall within the parameters of §801(c) such that the guidelines should have been applied in this matter. Modification proceedings and review proceedings are distinguishable because a review considers a prior court order, whereas a modification arises from a substantial change in circumstances. The court noted that its opinion was contrary to the Fourth District case In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, 128 N.E.3d 1105, 431 Ill.Dec. 935.

10. Trial Court’s Ruling Regarding “Special Immigrant Juvenile” Finding Reversed

In a parentage action, a mother from Guatemala sought “Special Immigrant Juvenile” (SIJ) status for her son, which is a predicate finding required in order for a minor to be qualified to petition to become a lawful permanent resident of the United States. In re Parentage of Ervin C.-R., 2020 IL App (2d) 200236. The trial court denied the request for SIJ status after interpreting and applying the applicable federal statute (8 U.S.C. §1101(a)(27)(J)), and the appellate court reversed. A child need not be declared a ward of the state, be placed in long-term foster care, or have a nonparent guardian appointed in order to qualify for SIJ findings. A child may be considered dependent on the court when the court is required to make a judicial determination about the child’s custody and care, and a court order allocating sole decision-making responsibilities falls squarely within this purview.

For more information about family law, see ADOPTION LAW (IICLE®, 2020). 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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