The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

1998 Family Law Cases
By Vincent C. Ruggiero

Attorney’s Fees

Fees, Motion To Vacate

Where party waives 508 fee hearing, judgment for fees may not later be vacated by 2-1401 motion unless fees patently excessive or waiver of hearing obtained by undue influence, and friendship between attorney and client is not undue influence as a matter of law. The first district affirmed trial court’s denial of 2-1401 motion and thereby upheld fee award of $1.54 million. Malkin v. Malkin. 1-96-3893 (1998)

Fees, No Adultery

H joins W’s male "friend" in the divorce case alleging "friend’s" affair with W and alleging that H "strongly believes" that W’s "friend" is in possession of transferred marital assets. H failed to prove prima facie case at trial as to "friend", and "friend" is awarded Rule 137 sanctions against H and H’s attorney. Affirmed. Irmo Schneider. 232 Ill.Dec.231, 697 N.E.2d 1161 (1st Dist. 1998)

Child Support

$51,000.00 Income, No Deviation

In a post-decree matter, Mother was primary physical custodian and moved for a modification of child support. Father argued for a downward deviation because Mother earned about $54,000.00 and was cohabitating with a person who contributed to household expenses while Father earned $51,000.00 annually. Trial court denied any modification largely due to the cohabitation situation. The appellate court reversed bluntly stating that the combination of these parties’ incomes will not result in an unfair windfall to the children or to the mother and the case was remanded with directions to determine Father’s net income and to award child support as provided by statutory guidelines. Department of Public Aid v. Nale. 690 N.E.2d 1052, 294 Ill.App.3d 747 (4th Dist. 1998)

Educational Expenses, Emancipation

H unilaterally stops paying daughter’s educational expense after she marries. In her Petition for Rule, W contends H’s obligation to pay educational expenses cannot terminate without first modifying the educational expense order. Trial Court dismissed W’s pleading and Appellate Court affirmed. Reasoning: Support obligations for educational expenses terminate upon emancipation (other than age) of a child "unless otherwise agreed in writing or expressly provided in a judgment." Irmo Daniels. 231 Ill.Dec.257, 695 N.E.2d 1376 (4th Dist. 1998)

Net Income, Depreciation Deduction

In determining H’s net income for child support, trial court did not consider H’s depreciation expense. Illinois Supreme Court affirmed because insufficient evidence offered to explain "basis" for the deduction. The significance of this case is that Justice Miller specifically refused to consider whether depreciation expense should be excluded in determining available income for child support in all cases. Irmo Minear. 230 Ill.Dec.250, 693 N.E.2d 379 (Ill. 1998)

Percentage Child Support, Voidable

In a legally, but not factually significant case, our Illinois Supreme Court held that percentage orders for child support entered after 1985, while erroneous, are voidable not void. Irmo Mitchell. 181 Ill.2d 169 (Ill. 1998)

First Family First, No Intervention

H has child with Wife-One and two other children with Wife-Two. Wife-Two is awarded statutory child support one day before the hearing on Wife-One’s motion for support. The judge in Wife-One’s case reduced net income for the purposes of setting support for Wife-One because of the prior support order of Wife-Two. Wife-One then attempts to intervene in Wife-Two’s case for relief, but to no avail. Second District held (i) compute child support for Wife-One first, as "prior" means "first in time" and (ii) former spouse cannot intervene in litigation involving support to children of another marriage. Irmo Potts. 231 Ill.Dec.692, 696 N.E.2d 1263 (2nd Dist. 1998)

Shared Custody, Guidelines Deviation

H and W were married about 15 years and had 3 children. H and W agreed to share the legal and physical custody of the 3 children and therefore the trial court downward deviated from guidelines ordering H to pay $75.00 per week to W. Second District affirmed noting that both parents have an obligation to financially support the children and when custody is shared, the court may apportion the percentage between the parents, or disregard the statutory percentage guidelines and instead consider the factors listed in section 505 (a)(2). Irmo Reppen-Sonneson. 2-97-1075 (October 14, 1998)

Spendthrift Trust, Support

Spendthrift Trust had discretion to pay H income and principal. Upon H’s death, the remaining Trust assets were to be distributed to various remainder beneficiaries. W garnished the Trust assets for H’s child support arrearage. Trust argued that all Trust assets could be exhausted if the Trust is ordered to pay the existing and theoretically future support arrearages which, in essence, forces the third-party remainder beneficiaries to pay H’s support. Held: Because of strong public policy to collect past-due support arrearages, trial court did not err in granting summary judgment against Trust. Irmo Stevens. 292 Ill.App.3d 994

Contractual Emancipation, Age 22

H and W’s MSA provides W with child support to child’s majority or completion of education, whichever is "later", but not beyond age 22. Subsequently, and after emancipation of their 2 older children, the parties agree to change custody from W to H of the third (last) child. W argues she should only pay child support to age 18. Trial court ruled, second district affirmed, that same MSA language applies to W (i.e. pay to age 22). Irmo Sweders. 231 Ill.Dec.9, 695 N.E. 2d 526 (2nd Dist. 1998)

Child Support, Personal Injury

H injured during marriage, and PI award of $375K. Trial Court awards 10% of PI award to W as marital property, 20% to W as child support, and 70% to H, even though the PI award broke down as follows: 80% future wages, 6.66% future medical, 6.66% past medical, and 6.66% pain and suffering. [Note: Past wages probably received in a workman’s compensation award.] Held: Reversed in part as to child support calculation. Reasoning: First reduce the PI award by the 10% given to W as marital property before you compute child support; second, multiply the difference by 20%; third, prorate H’s working life over the child’s years to majority. Irmo Wolfe. 232 Ill.Dec. 743, 699 N.E.2d 190 (2nd Dist. 1998)

No Withholding, No Penalty

W serves H’s employer with withholding order. Employer fails to withhold child support 3 times within 4 months. W sues employer civilly pursuant to IMDMA 706.1(G)(1) (i.e. $100.00/day late payment). Held: Employer’s motion to dismiss granted and same affirmed on appeal. Reasoning: Employer has two duties: to withhold and to pay any amount withheld. Statute penalizes only later, i.e. if employer "fails to pay any amount withheld". Since employer withheld nothing, it did not fail to pay the amount withheld. Vrombaut v. Norcross Safety Products. 232 Ill. Dec. 708, 699 N.E.2d 155 (3rd Dist. 1998)

Custody

Grandparent, Custody Standing

Minor resides with maternal Grandmother for majority of time between age 6 months and 8 years. Mother, sole custodian, moves in and out of Grandmother’s (i.e. her mother) house from time to time taking the minor out of Grandmother’s house. Father, aware of the situation all along, files petition to change custody to him during highly unstable period of Mother. Grandmother intervenes and fights for custody. Held: Grandmother had "standing" under 601(b)(2) because minor (i) not in the "physical" custody of either parent (ii) was in the voluntary physical possession of Grandmother for an indefinite time and (iii) was supported by Grandmother. Irmo Feig. 230 Ill.Dec. 685, 694 N.E.2d 654 (3rd Dist. 1998)

Evidence

G.A.L., Tape Recording

W secretly recorded certain of H’s telephone conversations with their child. Trial judge allowed GAL to listen to tape. Trial judge ruled tapes were inadmissible at trial, however. GAL based her custodial preference for W in part on the recordings of H. Appellate court affirmed stating that it fails to see prejudice because GALs typically review and consider "all kinds of information regarding the child, both admissible and inadmissible at trial." Irmo Karonis. 230 Ill.Dec.531, 693 N.E.2d 1282 (2nd Dist. 1998)

Misconduct, Maintenance

Appellate Court affirmed Trial Court’s consideration of H’s physical cruelty in determining W’s permanent maintenance award. Trial Court was careful to note the effect the physical cruelty had on W’s present emotional state, and not for purposes of punishing H for misconduct. Irmo Severino. 232 Ill.Dec. 355, 698 N.E.2d 193 (2nd Dist. 1998)

Change Beneficiary Of Beneficiary, Post-Decree

The parties’ MSA contained a general assignment of certain real property to H. The MSA did not specify, however, that the real estate was contained in a land trust, the beneficiary of which was W. After the Judgment was entered H died without changing the land trust beneficiary. W argued she possessed a personal property interest and H’s refusal to change the trust agreement demonstrated his intent. Nevertheless, the real estate was awarded to H at trial and affirmed (but with dissent) on appeal. Irmo Velasquez. 295 Ill.App.3d 350 (3rd Dist. 1998)

Ex Parte Letter, Bias Appearance

GAL and a court-appointed home study investigator recommended sole custody to H. Before trial, a former U.S. Congressman sends an ex parte letter to the judge recommending W, who ultimately wins custody. Judge discloses the letter upon announcing his decision at the end of trial stating he never read the letter. Trial Court’s denial of H’s motion to vacate reversed based only on appearance, not actual, bias of trial judge. Irmo Wheatley. 232 Ill.Dec. 196, 697 N.E.2d 938 (5th Dist. 1998)

Change of Life Insurance Beneficiary

Two months before filing for divorce, H changes his life insurance beneficiary from W-controlled trust to his adult children from a previous marriage. After divorce petition is filed, H dies. W unsuccessfully argued at trial that, among other things, H’s action was against public policy. Affirmed. Until beneficiary’s rights vest, an insured may change beneficiary if that right is reserved. Schultz v. Schultz. 696 N.E.2d 1169, Ill.App.3d (2nd Dist. 1998)

Maintenance

Maintenance/Property, Bankruptcy Discharge

Attorneys for H and W provided in MSA to equally divide H’s Chicago Police Pension via QDRO. Subsequently, trial court determined that said pension cannot be divided by QDRO because it was not a qualified plan under the Retirement Equity Act of 1984 and therefore awarded W, now remarried, lump-sum of $137,000.00. H appeals lump-sum nature of the award and also files for Chapter 13 Bankruptcy to discharge the debt as property distribution (i.e. not in the nature of maintenance). Bankruptcy Court and Seventh Circuit permit discharge. In re Edward J. Reines, Debtor v. Carol Kolodziej. 97-3312 (U.S. Court of Appeals, Seventh Circuit, April 17, 1998)

Specific Language, Modifiability

H and W were married about 23 years and H agreed to pay W monthly maintenance for 4 years. MSA did not recite what conditions would terminate maintenance obligation. About 14 months after judgment for divorce, W remarried. H attempts to terminate maintenance and is successful in trial and the appellate court. W argued that court must look to the intent of the parties and that without the maintenance her share of the marital estate was grossly less than H’s share. Despite a strong dissent, the majority stressed the importance of adding specific language pursuant to section 502(f) regarding nonmodifiability (or maintenance in gross). Irmo Pankey. 4-97-791 (September 21, 998)

Procedure

Voluntary Dismissal, No Fees

H files for divorce in August 1996. Trial is scheduled in June 1997. Six (6) days before trial H voluntarily dismisses the case. W’s attorney files fee petition within thirty (30) days of dismissal. Trial Court denied fee petition and Appellate Court affirmed. Reasoning: Public policy desires an end to hostile litigation after divorce is dismissed. Irmo Lucht. 1-97-2937 (1998)

Medical Records Subpoena, Court Approval

In a post-decree situation, W, who was sole custodian, attempted suicide and was hospitalized. H filed an emergency petition to modify custody and his attorney subpoenaed the records of the custodian from the hospital without first obtaining a court order. W sues attorney for damages. Trial judge’s ruling granting summary judgment for attorney reversed. Appellate Court stated that any person aggrieved by a violation of the mental health statute may sue for damages, and the decision "Whether the records should leave the hospital is a decision for an impartial judge to make, not a lawyer representing a client." Mandziara v. Canulli. 1-97-4644 (1998)

Paternity, Res Judicata

After due notice, default judgment entered against H during dissolution proceedings at which time H was ordered to pay child support. Six years later, H files petition under the Parentage Act claiming the minor is not his biological son. Trial Court denied Father’s petition and motion to reconsider on grounds of res judicata. H argues no res judicata because no hearing in dissolution action, statutory parentage proceeding not same as dissolution proceeding, and new case involved different parties. Affirmed. In re Paternity of Rogers. 232 Ill.Dec. 263, 697 N.E.2d 1193 (2nd Dist. 1998)

Visitation

No Conversation, No Eavesdropping

H says W is interfering with telephone visitation and records the call. During the call W, in an effort to frustrate H, plays an old tape recording of H in which he says that he was going to kill himself. Trial court admits the recording into evidence. Third District affirms holding no violation of eavesdropping statute because the part of the call did not constitute a "conversation" in any ordinary sense of the term. The portion of the tape which recorded a verbal exchange, however, should not have been admitted, but it was harmless error. Irmo Almquist. 3-97-0811 (August 26, 1998)

Intrastate Relocation, Court Approval

Post-decree situation. W attempts distant relocation of minors within Illinois. H files injunction until relocation issue is agreed, submitted to conciliation, or decided by court, the procedure set forth in the parties’ Judgment for all "important decisions regarding the children." Trial Court held it lacked jurisdiction and dismissed H’s pleading. Reversed. While court’s permission to move within Illinois is not normally required, parties bargained away that freedom. On remand, trial judge is to hear evidence as to what action would better serve minors’ interests. Irmo Findlay. 231 Ill.Dec.31, 695 N.E.2d 548 (2nd Dist. 1998)

Grandparent Visitation, Constitutionality

Mother sought to modify visitation granting deceased father’s parent’s visitation rights to the child and challenged the constitutionality of the grandparent visitation statute (607(b)). The trial and appellate courts found the statute constitutional stating that where a statute infringes on the fundamental constitutional right of parenthood, the statute may be upheld if a compelling state interest exists to achieve a stated goal. Appellate court found state has a compelling interest in maintaining and safeguarding an established grandparent, grandchild relationship where it has been proven by the grandparent that it is in the best interest of the child for the relationship to continue. West v. West. 689 N.E.2d 1215, 294 Ill.App.3d 356 (5th Dist. 1998)


 
 
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