Imputation of Income to Husband Was Appropriate When Setting Maintenance Award

In In re Marriage of Blume, 2016 IL App (3d) 140276, in setting a maintenance award, the trial court imputed income to the husband of approximately $70,000 from farming that he had historically earned during the marriage. The husband appealed claiming that the farming income varied from year to year, was not guaranteed, and that he had not planted a current crop that would yield additional income. The appellate court affirmed the trial court. The evidence showed that the husband was a farmhand earning a salary of $42,000 per year while the wife earned $10.60 per hour working at a nursing home. The husband also independently farmed crops prior to the divorce and had earned between $70,000 and $78,000. The parties’ marital residence, where the husband resided, was paid for by his employer, as were most of the utilities and a car that he used for both work and personal reasons. The court stated it was proper to impute the husband’s farming income for purposes of setting maintenance because the trial court should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work. The trial court had also found that the husband had voluntarily discontinued farming in light of the divorce and in an attempt to evade his support obligation. The appellate court also affirmed the amount of the maintenance award which was $2,000 per month.

New Maintenance Guidelines Under January 1, 2015, Amendments to IMDMA Maintenance Provision Should Not be Applied Retroactively

In In re Marriage of Cole, 2016 IL App (5th) 150224, the trial court ordered the husband to pay the wife $2,088 per month in maintenance. The husband appealed claiming that the court should have applied the revised Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., maintenance guidelines that took effect January 1, 2015, which would have resulted in an award of $1,328 per month. In this case, the hearing took place and proofs closed on October 24, 2014, before the new maintenance statute took effect. The trial court took the case under advisement and did not rule until after January 1, 2015. Just because the matter was taken under advisement but not ruled on until 2015 does not warrant retroactive application of the law.

Inadequate Bystanders Report Renders Record on Appeal Inadequate for Appellate Court To Rule

In In re Parentage of G.E., 2016 IL App (2d) 150643, the mother was found in indirect civil contempt for her failure to bring the minor child to Illinois for visitation with the father over the Thanksgiving holiday. The proceeding was not transcribed, but the court issued an order holding the mother in contempt and sentenced her to jail with a purge amount of $10,000. The court also denied the mother’s motion to stay the proceedings on the same day. Several months later, the court and counsel appeared and put on the record a summary of what happened at that hearing because the court did not want to certify the bystander’s report that was submitted. The mother then submitted this record as her bystander’s report in the appellate court. However, the report was improper because Supreme Court Rule 323(c) contemplates a collaborative process for the generation of a bystander’s report, including that the appellant serve the appellee with a copy of the proposed report. The record showed that the father was not in court when the retroactive summary record of the hearing took place and there was no indication that the mother provided the father with her proposed bystander’s report. Therefore, the trial court erred when it certified the bystander’s report. Because the report was invalid, the judgment of the trial court was affirmed.

UIFSA Does Not Create a Duty of Support and Cannot be Utilized To Establish an Initial Child Support Order if Illinois Statutory Authority Does Not Provide for such an Order

In Department of Healthcare and Family Services v. Arevalo, 2016 IL App (2d) 150504, the Department of Healthcare and Family Services (Department) filed a uniform support petition on behalf of a mother, a resident of Mexico, against the father of their two children, a resident of Illinois. The record showed that the mother and father were married in Mexico in 1996. Section 303 of the Uniform Interstate Family Support Act (UIFSA), 750 ILCS 22/100, et seq., requires a trial court to rely upon the law of the forum state to determine whether the respondent owes a duty of support. Because no dissolution of marriage proceeding was on file, the IMDMA did not grant authority for a support order to be entered. The Illinois Parentage Act of 2015, 750 ILCS 46/101, et seq., did not apply because no determination of parentage was being sought and any determination would involve a custody judgment which is prohibited by the UIFSA. Finally, the Illinois Public Aid Code, 305 ILCS 5/1-1, et seq., also did not apply because the Department was not enforcing a child support obligation. Therefore, the trial court properly dismissed the Department’s petition.

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

In re Marriage of Eastburg, 2016 IL App (3d) 150710, October 13, 2016, Knox Co., SCHMIDT, Affirmed. In post dissolution proceedings, husband’s federal income tax refund for 2014 was part of his net income for 2014, not an addition to it. Thus, husband’s overwithholding did not affect his current child support computation, and court properly denied wife’s motion to modify child support. Wife failed to disclose a straightforward account of her own income, and thus failed to support her argument that there was a substantial disparity in parties’ incomes to justify modification of wife’s obligation to pay minors’ uninsured medical expenses. (O’BRIEN, concurring; CARTER, specially concurring.)

In re Marriage of Rivera, 2016 IL App (1st) 160552, September 30, 2016, Cook Co., 4th Div., HOWSE, Certified question answered. The settlement proceeds received from a wrongful conviction action are marital property when the coerced confession and initial conviction occurred before the marriage, and the conviction was reversed during the marriage. The date of the completed tort of malicious prosecution determines whether lawsuit is marital property or nonmarital property. Petitioner did not have a property interest in his lawsuit until appellate court vacated his murder conviction in 2011, which was during the parties’ marriage, and thus, because lawsuit accrued during the marriage, it is marital property subject to distribution pursuant to factors set forth in Section 503 of Dissolution Act. (McBRIDE and BURKE, concurring.)

In re Marriage of Knoll, 2016 IL App (1st) 152494, September 30, 2016, Cook Co., 5th Div., GORDON, Vacated in part and affirmed in part. Court found Petitioner in civil contempt for depriving Respondent of his visitation rights with their minor child following dissolution of parties’ marriage. Court determined that husband was denied his visitation instead of voluntarily electing to forego it, as wife contended. Court’s civil contempt order was invalid as it did not contain a purge provision, or set forth conditions upon which wife may dissolve indirect civil contempt. Court properly found that, under Section 607.1 of Dissolution of Marriage Act, wife had committed visitation abuse for 2 days, and court properly ordered make-up visitation for periods of time in which husband was unable to exercise his parenting time, which is a remedy expressly authorized by statute.(HALL and REYES, concurring.)

In re Marriage of Liszka, 2016 IL App (3d) 150238, September 27, 2016, Will Co., LYTTON, Affirmed in part and reversed and remanded in part. In dissolution action, prior to trial, court barred husband’s expert from testifying as to value of a corporation started by and owned by the parties, as a discovery sanction. Court abused its discretion in barring husband’s expert. Although expert’s opinions and report were not disclosed until 4 days prior to trial, late disclosure was a result not of husband’s conduct, but of wife’s failure to provide husband and his expert with necessary financial information necessary to reach conclusions as to value of corporation. Court erred in imputing gross monthly income of $17,500 to husband, for child support purposes, as there was no evidence presented that he could obtain a job at that salary based on his qualifications. Court did not err in refusing to treat wife’s attorney fees as advances against the marital estate, as her attorney fees were significantly higher than husband’s, and wife’s higher fees were at least partially incurred during collaborative process. Court properly denied husband’s request for maintenance, based on court’s review of applicable factors, as husband was in good health, age 44, had a college degree, and had already started another business of his own. (WRIGHT, concurring.; McDADE, concurring in part and dissenting in part.)

PNC Bank v. Pattermann, 2016 IL App (3d) 150568, September 23, 2016, 3d Dist., Will Co., O’BRIEN, Certified question answered. A former spouse does not, as a matter of law, lose her homestead exemption in property by virtue of a divorce decree that grants her an interest in the property but does not address or dispose of the former spouse’s homestead interest in the property. (HOLDRIDGE and WRIGHT, concurring.)

In re Marriage of O’Malley, 2016 IL App (1st) 151118, Nos. 1-15-1118, 1-15-2908 (cons.), Fifth Division, September 23, 2016, Cook Cty, affirm in part and vacate in part. After judgment of dissolution was entered, which incorporated MSA signed by parties, parties continued to litigate terms of MSA. Court abused its discretion in finding husband in “indirect civil contempt” for failing to abide by MSA’s deadline for selling marital residence or buying out wife’s interest in the residence and its orders as to distribution of proceeds from sale of marital residence and awarding wife attorney’s fees. Court properly entered alternative finding that husband was in breach of MSA, and awarding damages (prejudgment interest and $64,229 in attorney’s fees and costs) to wife.Court was not modifying terms of MSA, but only enforcing terms of MSA, when it calculated amount due to wife by using 2008 contract price instead of 2012 price. (REYES and BURKE, concurring.)

Thank you to ISBA Family Law section for its contributions this month.