Wife Not Awarded Survivor Benefit Under Military Retirement Pension

In In re Marriage of Coviello, 2016 IL App (1st) 141652, ___ N.E.3d ___, 408 Ill.Dec. 343, the appellate court affirmed a trial court’s decision to not order the husband to maintain the wife as a survivor beneficiary under his federal military retirement pension, and instead made the wife and their child beneficiaries of a $400,000 life insurance policy. The appellate court noted that it did not interpret the trial court’s decision to mean that the survivor benefit was not marital property. Rather, it favored an interpretation that meant it was marital property but should not be awarded to the wife. Under the husband’s pension, the wife would only receive the monthly benefit so long as the husband was alive. If she remarried prior to the age of 55 she would no longer be entitled to the benefit. Also, if she died before the husband, her estate would not receive the benefit. Furthermore, the husband could not name any future spouse as a survivor beneficiary, even if he remarried and was still married at the time of his death. Since the survivor benefit was simply not divisible under federal law, the court had an all-or-nothing decision to make and decided the most equitable result was to deny the wife the survivor benefit but make her and the minor child beneficiaries of the existing life insurance policy.

Husband’s Power of Attorney and the Recipient of Sales Proceeds of Marital Business Properly Joined as Third-Party Defendant in Divorce Case

In In re Marriage of DiFiglio, 2016 IL App (3d) 160037, ___ N.E.3d ___, 408 Ill.Dec. 302, the husband’s brother-in-law, who was also a resident of California and his power of attorney, received $575,000 of the sales proceeds of a marital business during the pendency of his divorce case. The wife successfully moved to join the brother-in-law as a third-party defendant. He subsequently moved to dismiss the third-party complaint against him for lack of personal jurisdiction, which was denied. The appellate court affirmed. Illinois had personal jurisdiction because both the requirements of the long-arm statute (735 ILCS 5/2-209) were met and due process was satisfied. The brother-in-law received possession and control of the sales proceeds of a company in Illinois and those proceeds were the subject of the wife’s third-party complaint. He also traveled to Illinois for the sale of the company and to appear in court with the husband as well as keeping in regular communication with the husband. He had also acted as the husband’s attorney-in-fact pursuant to an Illinois power of attorney drafted in Illinois.

Bifurcated Judgment Upheld

In In re Marriage of Breashears, 2016 IL App (1st) 152404, the trial court properly granted the husband’s emergency petition to bifurcate a judgment for dissolution of marriage due to his terminal illness. The husband testified at the hearing that he wished to marry his girlfriend, whom he had been in a relationship with for seven years and dispose of his estate free of his wife’s influence. The evidence showed the parties had been separated for approximately ten years. The trial court granted the bifurcated judgment and the husband died less than a month later. The court relied on Copeland v. McLean, 327 Ill.App.3d 855, 763 N.E.2d 941, 261 Ill.Dec. 692 (4th Dist. 2002), and held that the impending death of a party can represent an appropriate circumstance for the entry of a bifurcated judgment. The court also noted that the trial judge was in the best position to determine the effect that the bifurcated judgment would have on its ability to dispose of the marital estate and that it did not abuse its discretion when granting the emergency petition.

Ex-Wife Not Entitled to Percentage of Ex-Husband’s Income Tax Refund as Child Support

In In re Marriage of Eastburg, 2016 IL App (3d) 150710, ___ N.E.3d ___, 408 Ill.Dec. 276, the ex-wife filed a motion to modify child support and the parties subsequently stipulated to an agreed increase. She then immediately sought 28% of the ex-husband’s 2014 tax refund. The trial court denied and the appellate court affirmed. The record showed that the ex-husband intentionally over-withheld taxes each year and received a large tax refund. The ex-wife had his 2014 W-2 and 2014 tax return at the time she stipulated to the increase in child support payments. The question was not whether the ex-husband’s withholding on his paycheck was correct, but rather whether his child support payment was properly calculated based on his actual net income. Because the parties stipulated to his support obligation after the close of discovery and after receipt of his tax return, the trial court did not err in computing his net income, and if his net income did not adjust for the overwithholding, that was the ex-wife’s error, not the court’s.

Indirect Civil Contempt Order that Did Not Contain a Purge Provision Was Void

In In re Marriage of Knoll, 2016 IL App (1st) 152494, a highly contested postjudgment visitation proceeding in which the father alleged both visitation abuse and indirect civil contempt against the mother due to several alleged missed visitation periods by him including regular weekend time, Father’s Day, winter break, and summer vacation time, the trial court found that the mother was both in indirect civil contempt of court and had engaged in visitation abuse. The mother appealed. The trial court heard significant testimony from both parties regarding each specific period of time that alleged missed visitation occurred and the appellate court supported the trial court’s findings that it was concerned that the mother permitted the child to “pick and choose” when he would visit with his father and that the mother had allowed the child to play in a baseball game after being too ill to visit with his father the prior day. However, a valid indirect civil contempt order must contain a purge provision which lifts the sanction when the contemnor complies with the order. Because the contempt order did not contain a valid purge, but rather just provided for the parties to agree upon make-up visitation time, the order was void. The father’s participation was a necessary prerequisite to establishing the make-up parenting time, and prior case law dictates that it is improper to require action by a third party to effectuate a purge.

Finding of Visitation Abuse Upheld

In In re Marriage of Knoll, supra, the trial court found the mother to have been engaged in visitation abuse pursuant to §607.1 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., and the appellate court affirmed. The trial court ordered make-up visitation for the periods of time the father was unable to exercise his visitation, which was a remedy that was expressly authorized by §607.1.

Thank you to IICLE Family Law’s contributions this month. Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP.