Family Law FLASHPOINTS January 2022

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

That Maintenance Payments Were Non-Modifiable, as Set Forth in Marital Settlement Agreement, Upheld

In In re Marriage of Dynako, 2021 IL 126835, the husband appealed the trial court’s ruling that the maintenance payments set forth in the parties’ marital settlement agreement (MSA) were non-modifiable pursuant to §502(f) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. The appellate court affirmed, and the husband appealed to the Illinois Supreme Court, which also affirmed. The parties’ MSA contained a maintenance payment schedule with detailed amounts owed each year for a specific period of time. The MSA also contained the following language: “Said maintenance payments shall be nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” 2021 IL 126835 at ¶17. The husband argued that the obligation was modifiable under §502(f) because the statute provides that if the parties do not provide that the maintenance is non-modifiable in amount, duration, or both, the terms are modifiable upon a substantial change of circumstances. The Supreme Court disagreed and held that the maintenance obligation was non-modifiable, stating that his argument had “absolutely no support” and that the language of the MSA not only expressly provided the obligation was non-modifiable but also specifically cited the applicable provision of the statute. 2021 IL 126835 at ¶19.

Support Payor’s Receipt of Required Mandatory Distributions from Inherited IRAs Is Income for Purposes of Maintenance and Child Support

In a matter of first impression, the Illinois Supreme Court held that a support payor’s receipt of mandatory distributions from an inherited IRA is income for purposes of §§504 and 505 of the IMDMA. In re Marriage of Dahm-Schell, 2021 IL 126802. The husband inherited approximately $615,000 during the pendency of the divorce case, the majority of which was held in inherited IRAs. The trial court did not include the distributions in the maintenance and child support calculations, and the appellate court reversed. The Supreme Court affirmed the appellate court. The Supreme Court focused its analysis on the caselaw, which broadly construes income as “income from all sources,” and its prior ruling in In re Marriage of Mayfield, 2013 IL 114655, 989 N.E.2d 601, 371 Ill.Dec. 11, which defined “income” as gains and benefits that enhance a noncustodial parent’s wealth and facilitate that parent’s ability to support a child. 2021 IL 126802 at ¶¶17 – 18. It also distinguished the case at bar from In re Marriage of McGrath, 2012 IL 112792, 970 N.E.2d 12, 361 Ill.Dec. 12, which involved an unemployed payor living off of assets awarded to him in the divorce. In its opinion, the court restated McGrath’s significance to mean that in order to avoid double counting, the liquidation of an asset awarded in a divorce is not income if the asset has been previously imputed to the party for maintenance and support purposes. The court also restated the holding in In re Marriage of Rogers, 213 Ill.2d 129, 820 N.E.2d 386, 389 Ill.Dec. 610, to mean that the money at issue in that case ultimately factored into support as income not because it was received as gifts and loans, but because it was received after the divorce and had not been previously imputed as income for support purposes. Therefore, because the husband in the case at bar never earned or contributed to the inherited IRAs, any distributions he received from the accounts increased his wealth and should be included in the statutory definition of “income” for purposes of calculating support.

Income for Purposes of Support and Maintenance Includes Mandatory Distributions from Inherited IRAs Reinvested in Husband’s IRA

In Dahm-Schell, supra, the Supreme Court held that the fact that the husband chose to reinvest required mandatory distributions from an inherited IRA into his own IRA did not shield such distributions from being considered income for purposes of maintenance and support calculations. It was the husband’s choice to reinvest the required mandatory distributions into his own IRA, and such action did not exclude such funds from the statutory definition under the IMDMA.

Trial Court’s Issuance of Plenary Order of Protection Reversed Due to Petitioner Not Proving Harassment Under Illinois Domestic Violence Act

In Steven W. v. Meeli W., 2021 IL App (2d) 200652, a procedurally complex case involving a family who traveled back and forth between the United States and Estonia multiple times during their marriage, the mother refused to return to Illinois in January 2020 with the two minor children as planned and as evidenced by the return airline tickets that had been booked for the entire family. The father filed an application to an Estonian court for return of the children to Illinois under the Hague Convention. The father also filed a petition for plenary order of protection in Illinois asking for the children to be returned as part and parcel of the request for an order of protection. After multiple days of continued hearings, the Illinois trial court issued a plenary order. The Estonian court also denied the father’s Hague application. The mother appealed the plenary order in Illinois, and the appellate court reversed, holding that the father failed to prove harassment under the Illinois Domestic Violence Act of 1986 (IDVA), 750 ILCS 60/101, et seq. The IDVA defines harassment, in part, as conduct that would cause a reasonable person emotional distress and does cause emotional distress. The IDVA creates a rebuttable presumption of emotional distress based on (1) improperly concealing a minor child, (2) threatening to improperly remove a minor child from the jurisdiction, (3) repeatedly threatening to conceal a minor child, or (4) making a single such threat following an actual or attempted improper removal or concealment. The father argued that the mother’s removal of the children constituted harassment per se under the statute, not that her conduct satisfied the elements of harassment. The court stated that even if it assumed the mother’s alleged conduct did amount to an improper removal of the children from the state, such a removal in and of itself does not fall within the definition of harassment or emotional distress. In reversing the trial court, the appellate court noted the improper use of the IDVA, which is meant to aid victims of domestic violence, not for the primary purpose of obtaining custody.

Orders Entering and Continuing Emergency Order of Protection Until Next Hearing Date on Plenary Order of Protection Upheld

The maternal grandfather of four minor children appealed interlocutory orders extending an emergency order of protection obtained by the father against him. Fricke v. Jones, 2021 IL App (5th) 200044. The orders were entered in the middle of the evidentiary hearing and continued the emergency order of protection until the next date each time. The appellate court ruled it had jurisdiction over the orders because the grandfather had timely appealed the most recent (January 13, 2020) extension order and because that order bore directly on whether the trial court properly entered an order on December 23, 2019. The court also noted that the issues on appeal had a significant public interest, and therefore the public interest exception to the mootness doctrine applied. The grandfather’s primary argument on appeal was that the December 23 order extended the emergency order of protection 46 days, which was greater than the 21 days within which the IDVA requires the hearing to occur. The plain language of §220 of the IDVA, 750 ILCS 60/220, provides that an emergency order of protection shall be effective no less than 14 nor more than 21 days unless it is reopened or extended or voided by entry of an order of greater duration. The statutory language clearly and unambiguously conveys discretion to the circuit court to enter an order extending an emergency order of protection to a duration greater than 21 days.

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

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