The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Family Law Committee Case Law Update
By Vincent C. Ruggiero, J.D.

Child Support, Depreciation

In re Marriage of Boland, N.E.2d (Slip No. 4-99-0355). Ex-W sought increase in child support. Ex-H was a self-employed farmer. Trial court added Ex-H’s claimed depreciation expense on his farm equipment to his taxable net income to determine net income for child support purposes. Held: 505(a) of IMDMA specifies deductions from gross income to determine net income, and depreciation is not a specified deduction. Affirmed. [Note: There exists some deviation in the circuits on this issue.]

Child Support, College Costs

In re Marriage of Hupe, 711 N.E.2d 789. In a post-dissolution case, Ex-W sought Ex-H’s contribution to college expenses of their daughter. Daughter refused to work for her father (to use that income to defray her college costs) and refused to use his vehicle (she used her maternal grandmother’s car instead) to assist with transportation to and from college. Ex-H’s income was significantly greater than Ex-W’s income. Trial court held Ex-H responsible for child’s books, tuition and fees, but Ex-H was not held responsible for transportation expenses. Affirmed. Section 513 of IMDMA provides the trial court with discretion in allocating education expenses and trial court did not abuse its discretion since the order was consistent with the parties’ intention expressed in their divorce judgment that they contribute funds to their child’s college sufficient to relieve her of substantial post-college debt. [Note: It seems that the trial court need not do a straight percentage allocation of a child’s entire education costs, and that some piece-meal allocation may be acceptable were justified.]

Child Support, Business Expenses

In re Marriage of Crossland, N.E.2d , 240 Ill.Dec. 456. The IRS permits an automatic $36/day deduction from income for over-the-road truck drivers for estimated travel expenses in determining net income for tax purposes. Child support obligor argued that trial court ought to deduct same in determining net income for child support purposes since same was an ordinary and necessary business expense in the production of income. Trial court computed child support calculation without regard to per diem deduction. Affirmed. Section 505 of IMDMA enumerates specific deductions from income in determining income for child support, and IRS regulations do not control for these purposes.

Support, Post-High School

In re Marriage of Thurmond, 715 N.E.2d 814. In a post-judgment case, Ex-W was awarded 20% child support award for child over 18 years of age because child was a "slow learner". Further, Ex-H was ordered to pay 70% of the child’s post-high school education. Reversed. Child support may continue beyond age 18 generally if the child is "disabled" under Section 513 of IMDMA. "Slow learner" does not fit ordinary meaning of the terms "disabled" or "incapacitated" under the statute. Further, while the trial court considered all the factors listed in Section 513(b) of IMDMA, the post-high school education award which required Ex-H to pay more than he could reasonably afford was in error.

Visitation, Non-Parent

In re Marriage of Visitation with C.B.L., ____ N.E.2d_____ (Slip No. 1-98-2011). Lesbian couple acted as co-parents of a minor, and one of them was the biological mother of the minor by artificial insemination. The couple terminated their romantic relationship and the biological mother denied visitation to the other "co-parent". Trial court held, and it was affirmed, that because the co-parent seeking visitation was not a parent, sibling, or grandparent, she had no "standing" under 750 ILCS 5/601 to seek visitation, and no best interest test need be applied. Note: Legislation would seem needed, if desired, to either give a co-parent in this situation standing, or to have the court make a best interest determination in the situation.

Minor, Name Change

In re Marriage of Charnogorsky, 707 N.E.2d 79. Ex-H’s petition filed pursuant to 735 ILCS 5/21-101,102 to change the last name of his daughter born just after entry of his divorce judgment lacked standing absent written agreement to the contrary with Ex-W. [Note: Bring a motion to modify the divorce judgment as a matter incident to a custody determination under 750 ILCS 5/601 et seq. instead of as a straight name-change petition.]

Maintenance, Termination for No Effort

In re Marriage of Koenigsknecht, 707 N.E.2d 112. In a post-petition matter, Ex-W attempted to extend her maintenance award which was initially set at $2,500.00 per month for 48 months, review able. Ex-H’s average monthly net income was about $13,500.00. [Ex-H was ordered to pay 25% statutory child support for his two children as well.] Trial court reduced the maintenance awarded but extended it by two years, which was again made reviewable. Ex-H successfully had ruling reversed on appeal because Ex-W had made insufficient progress towards her own financial independence, as she had not really event tried to return to any type of meaningful employment.

Support, Tax Exemption

In re Marriage of Moore, N.E.2d (Slip No. 5-98-0488). In a post-decree proceeding, trial judge reassigned one of father’s two child dependency exemptions to mother. Father argued on appeal that he was responsible for the majority (i.e. 52%) of the children’s total expenses and that he should therefore receive both exemptions. While Illinois generally provides the parent who provides the majority of the support with the exemptions, determining same is not an "exact science" and there was no abuse of discretion by the trial judge because each parent was paying "approximately half" of the children’s expenses. [Note: IRS’ regulations waive the support test in divorce situations and the custodial parent receives the exemptions unless the parties agree, or there is a court order, to the contrary.]

Support, Pension Income

People ex rel. Myers v. Kidd, N.E.2d (Slip No. 5-99-0193). Income from fireman’s pension fund in addition to the income the obligor received from his current employment, was properly used in the determination of child support, and the Pension Code language seeming to the contrary, did not take precedence over the child support statute.

Marital Assets, Law Degree

In re Marriage of Abma, N.E.2d (Slip No. 1-98-1381). After a pre-trial conference, W sought to substitute judge but was denied. W argued on appeal that the trial judge erred in not permitting substitution and for placing an economic value on her law degree when the judge awarded H the entire $32,000.00 of equity of the parties’ home. W was earning about $32,000.00 as a new lawyer while H was earning about $67,000.00 as a deputy police chief. The appellate court affirmed. The trial judge had properly considered the differences in the parties’ ages (W-39, H-50), W’s ability to acquire future assets, and the fact that the home equity was reduced by about $65,000.00 when the parties’ refinanced the home to payoff W’s student loans and pay her business start-up costs. Also, even though the trial judge had yet to make a substantive ruling in the case, the trial judge properly denied motion to substitute judge because the pre-trial gave W a "unique opportunity to determine the thinking of the judge."

Exclusive Possession, Trespass

People v. Oakley, 707 N.E.2d 1243. Divorce decree provided W with exclusive possession of home, though H’s name remained on the mortgage and the title. H entered the home. Held: H’s criminal guilt for home invasion proper. [This criminal holding certainly discourages wrongful home invasion more than a civil or indirect criminal petition for rule would.]

Post-Decree Failure to Change Beneficiary

In re Marriage of Velasquez, 692 N.E.2d 841. The parties’ Marital Settlement Agreement contained a general assignment of certain real property to H. The Marital Settlement Agreement did not specify, however, that certain real estate was contained in a land trust, the beneficiary of which was W. After the Judgment was entered H (now Ex-H) died without changing the land trust beneficiary. Ex-W argued she possessed a personal property interest and Ex-H’s refusal to change the trust agreement demonstrated his intent. Nevertheless, the real estate was awarded to the estate of Ex-H at trial and affirmed (but with dissent) on appeal. [Query: Similar result if H failed to remove W as life insurance policy beneficiary?]

First Family First, No Intervention

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

No Conversation, No Eavesdropping

In re Marriage of Almquist, 701 N.E.2d 802. 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 that 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. [Query: May recording be admitted where custodial parent hangs up phone, swears or makes up obvious lie because none of these are "conversations"?]

Incompetent Party, No Divorce

In re Marriage Burgess, 707 N.E.2d 125. In a legally, but not factually significant case, the Illinois Supreme Court held that a guardian cannot pursue a divorce on behalf of the ward for lack of standing under the Illinois Probate Act of 1975. [Note that legislation is currently being contemplated to change this result.]

Custody Contest, Joint Custody Awarded

In re Marriage Hinze, N.E.2d (Slip No. 3-97-0726). In a Rule 23 decision, Judge Torluemke’s decision to award joint custody, despite the protest of the W, was upheld. On appeal the W argued that the parties have a total inability to cooperate effectively regarding their son. Judge Torluemke found that the evidence proved that the parties had on occasion been able to meaningfully discuss concerns regarding the minor and through various separations during the marriage were able to work out visitation even though a court order was not required.

Custody Change, Serious Endangerment

Department of Public Aid v. Brewer, 690 N.E.2d 1380. In a post-decree matter, the Mother, who had been previously awarded sole custody in the divorce judgment, permitted a babysitter to continue to watch the parties’ children even though the babysitter had previously sexually and physically abused one of the children. Father sought modification of custody within 2 years of judgment. The trial court found that serious endangerment had been proven by clear and convincing evidence and changed custody to Father. Mother appealed. The appellate court reversed the trial court and reasoned that even though the Mother’s placement of the children with the babysitter established that the Mother used poor judgment in accessing the danger to her children, the Father failed to prove by clear and convincing evidence that the present custody environment that the Mother provided was an endangerment to the children. Father then appealed to the Illinois Supreme Court. While the appellate court’s custody ruling in favor of Mother was upheld, that portion of the appellate court’s ruling stating that Father failed to prove serious endangerment by "clear and convincing evidence" was, by our Supreme Court, ruled not to be the standard for changing custody within two (2) years of the entry of the divorce judgment. The standard is whether the trial judge, based on affidavits submitted, had "reason to believe" that the child’s present environment may endanger seriously his physical, mental, moral, or emotional health. If this procedural prerequisite is met, then the case proceeds to an evidentiary hearing at which the trial court need only determine whether by clear and convincing evidence modification is necessary to serve the best interest of the child, which is the same standard for changing custody after 2 years following the divorce judgment.

Spendthrift Trust, Support

In re Marriage Stevens, 687 N.E.2d 165. 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. [Discussion Points: maintenance, unallocated support, and child support after H dies.]

Medical Records Subpoena, Court Approval

Mandziara v. Canulli, 701 N.E.2d 127. 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 custodian of 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".

Intrastate Relocation, Court Approval

In re Marriage Findlay, 695 N.E.2d 548. Post-decree situation. W attempts distant relocation of minors within Illinois. H attempts injunction until issue is agreed, submitted to conciliation, or decided by court, as is the method 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 should hear evidence as to what action would better serve minors’ interests.

Till Divorce Do Us Part

Estate of Donald Forrest, 706 N.E.2d 1043. Upon divorce, a former spouse’s interest under the other former spouse’s will is automatically revoked. Query: Is a surviving former spouse’s interest under the testator’s will revoked even if the parties were not married to each other at the time the will was made, subsequently marry, and subsequent to that the testator dies? Held: Section 4-7(b) of the Probate Act, which provides automatic revocation of any interest under a will of a former spouse upon dissolution, applies regardless of the fact that the former spouse was not married to the testator at the time the will was signed.

Fees, Parties’ Allocation Not Binding

In re Marriage Lee, 707 N.E.2d 67. Parties agree in MSA that each are responsible for his own attorney fees. Subsequently, W’s former attorney filed petition for fees against H. Trial court strikes the fee petition filed against H. Appellate court reverses. Parties can not waive the statutory right of the attorneys to claim fees incurred by one spouse against the other spouse. Remanded to determine parties’ relative financial ability at the time of the divorce.

Joint Custody, Mandatory Mediation

In re Marriage Pilney, N.E.2d (Slip No. 2-98-12907). Parties JPA provided that parties "may" mediate disputed issues. Trial court, on its own, ordered that mandatory mediation be incorporated into the dissolution judgment. W appealed arguing that trial judge lacked authority because (i) joint parenting terms (other than support, custody and visitation) are "binding" on the court under 502(b) of IMDMA and (ii) under 602(b) of IMDMA mediation is allowed, not mandated, so long as "a procedure" to resolve disputes is specified. Affirmed. Since a trial judge may enter a joint custody order on its own (even if the parties fail to produce a JPA) it stands to reason that the trial judge can modify a JPA if the JPA fails to protect the best interests of the children (e.g. mediation preserves financial resources needed for the children).

Vincent C. Ruggiero received his Bachelor of Science in Business and Certificate of Public Accountancy in 1981 from the University of Illinois, Champaign-Urbana. He is a 1984 Dean’s List and Honors Graduate of IIT/Chicago-Kent College of Law. Mr. Ruggierois the principal of Ruggiero & Associates, P.C. located in Clarendon Hills, Illinois where currently concentrates in matrimonial litigation.

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