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Family Law FLASHPOINTS April 2021

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

Ex-Wife Allowed To Redirect Maintenance Payments To Pay Creditor’s Judgment Against Her for Ex-Husband’s Debt

In a postjudgment action, In re Marriage of Dragoi-Zulicic, 2021 IL App (1st) 191732, the wife filed a petition to abate her monthly maintenance payments to the husband in order to pay off a $24,858.88 money judgment entered against the husband and wife for unpaid assessments and penalties brought by their former condo association. The husband was ordered to pay the monthly assessment in both a prejudgment temporary order and the final dissolution judgment, which included an indemnification clause in favor of the wife. When the husband failed to meet that obligation and the money judgment was subsequently entered, the wife brought a petition to abate maintenance so that she could divert the maintenance payments from the husband to the creditor. The trial court found her motion was more properly categorized as a motion to enforce judgment and ordered the wife to use her maintenance payments to pay down the judgment debt. The husband appealed. The appellate court affirmed, holding that trial courts should look to the relief requested, not merely the title of the pleading, when fashioning relief and that the trial court properly treated the wife’s motion as a motion to enforce. As such, the wife was not required to meet the legal threshold of a substantial change in circumstances in order to obtain the relief she requested because she was not seeking to modify the amount or duration of her maintenance obligation. The trial court was also not required to compel her to complete a financial affidavit since she was not seeking to establish, modify, or enforce a maintenance payment.

Plenary Order of Protection Can Be Extended Indefinitely

In Dale v. Bennett, 2021 IL App (4th) 200188, the Fourth District held that a plenary order of protection can be extended indefinitely under the plain language of the Illinois Domestic Violence Act of 1986 (IDVA), 750 ILCS 60/101, et seq. The wife sought and was granted an emergency order of protection for herself and the minor children against the husband, which was granted. The allegations included that the husband had hired a hit man to murder his business partner and that the husband had told the wife over the years that if she told anyone, he would hurt her. The wife made additional allegations that he had electronically monitored her, refused to let her get a job, hurt her wrist and arm, and raped her. The emergency order of protection was granted, as was a subsequent plenary order of protection for two years. Prior to the expiration of the plenary order, the wife sought an extension for an indefinite period of time. The husband did not appear at the hearing, and the order of protection was extended indefinitely. The husband then appealed, and the appellate court affirmed. The court opined that the plain language of §220(e) of the IDVA states that “[a]n extension of a plenary order of protection may be granted, upon good cause shown, to remain in effect until the order of protection is vacated or modified.” 750 ILCS 60/220(e). Although the initial order of protection has a specific time period of two years under the statute, no time limit exists for the extension of such an order. The court engaged in a lengthy statutory construction analysis, which included reasoning that because there was a more specific rule governing extensions in subsection (e), any conflict between the more general two-year rule and the more specific rule is resolved in favor of the specific one.

Denial of Relocation Petition Upheld

In a contentious dissolution case that involved an order of protection, an unfounded DCFS sexual assault claim against the husband, and a criminal charge against a third party for battery and attempted kidnapping of the wife, the trial court denied the wife’s petition to relocate with the minor child to California. In re Marriage of Levites, 2021 IL App (2d) 200552. The trial court heard extensive testimony in the matter over a three-year period and appointed a guardian ad litem (GAL) and an evaluator pursuant to §604.10(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. The evaluator opined that the wife should be allowed to relocate. The GAL prepared a written report that in part stated the wife had not investigated any schools the child would attend, although he had and found them to be above average. The evidence also indicated that the husband had unsupervised visitation for the majority of the dissolution proceedings and an approximate equal parenting schedule, which he exercised. In its oral ruling, the trial court went through each relocation factor in the IMDMA before denying the request. The court noted that the parties had no ability to co-parent and would not easily work together to fashion a reasonable parenting schedule if the wife were allowed to relocate. The court also noted that the majority of the evidence presented at trial related to why relocation would be beneficial for the wife, not the minor child. The wife presented no evidence of a job or how she would support the child, what school the child would attend, or how the child’s life would be enhanced. The appellate court affirmed the trial court, holding that it could not say that the judgment was against the manifest weight of the evidence or that its decision worked a manifest injustice.

Illinois Supreme Court Grants Two Petitions for Leave To Appeal in Family Law Cases

The Supreme Court has granted a petition for leave to appeal in In re Dahm-Schell, 2020 IL App (5th) 200099, appeal allowed, 2021 IL 126802, which dealt with the question whether mandatory distributions or withdrawals from an inherited IRA containing nonmarital funds constitute income for purposes of maintenance and child support. The Fifth District held that they did constitute income. The Supreme Court also granted a petition for leave to appeal in In re Marriage of Dynako, 2020 IL App (1st) 192116, appeal allowed, 2021 IL 126835, which presented the question whether the trial court properly denied the husband’s motion to modify maintenance. The First District, which affirmed the trial court, held that the original maintenance order was non-modifiable. The appellate court rejected the husband’s claim that maintenance was modifiable because the agreement did not specifically track the language of §502(f) of the IMDMA, 750 ILCS 5/502(f), that maintenance was non-modifiable in amount, duration, or both.

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 www.iicle.com/subscriptions.

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