1. New Case: Supreme Court follows Altman (First District) and holds attorneys’ fees earned and already paid to counsel not subject to disgorgement. In a case reconciling the First District case of In re the Marriage of Altman, 2016 IL App (1st) 143076 and the Second District case of In re the Marriage of Squire, 2015 IL App (2d) 150271 regarding whether Section 501(c-1)(3) of the IMDMA requires divorce attorneys to disgorge fees already earned by and paid to an attorney under the “leveling of the playing field” statute, the Supreme Court has followed Altman and held that attorneys’ fees earned and already paid to counsel are not subject to future disgorgement. The Court held that this interpretation is consistent with the plain meaning of the term “available.” Further, the practical considerations of requiring divorce attorneys to disgorge funds even after they had deposited earned fees into their operating accounts and used those funds to pay overhead, salaries and other expenses was significant. The Court also urged the legislature to take another look at the interim fees state and make its intentions absolutely clear and define specifically what it means by “available” funds. In re the Marriage of Goesel, 2017 IL 122046.
2. Child Support Income Shares. With the enactment of P.A. 99-764 effective July 1, 2017, Illinois joined 39 other states in employing an income shares model when calculating child support rather than the guideline percentage of the payor’s income that has been in place since 1984. Under the new statute, the Schedule of Basic Support Obligation, promulgated by the Illinois Department of Healthcare and Family Serices (HFS), is a critical component to the new calculation. The intent of the schedule is to utilize economic data of child rearing costs in Illinois based on the income level of both parents. The full statute is available here:
and the Schedule of Support Obligations is available here:
3. The Illinois Supreme Court reverses Appellate Court, affirms trial court’s fee contribution award. After a post-judgment hearing, the trial court reduced ex-husband’s maintenance obligation from $35,000 per month to $27,500 per month and awarded ex-wife $125,000 in contribution to fees. The court also awarded her $35,000 in attorneys’ fees to defend the appeal that ex-husband filed on both issues. The trial court did not abuse its discretion when awarding ex-wife $160,000 in attorneys’ fees. The critical component of the decision was the Court’s analysis of its prior case, In re Marriage of Schneider and the “inability to pay” standard. When determining fee contribution, the trial court “must consider the financial resources of the parties.” The Court suggested that the Schneider holding is a gloss to be applied to this analysis, to the extent that “[t]he inability to pay standard was never intended to limit awards of attorney fees to those situations in which a party could show a $0 bank balance.” The Court concluded a party is unable to pay if, after consideration of all the relevant statutory factors, requiring the party to pay the entirety of the fees would undermine his or her financial stability. In re the Marriage of Heroy, 2017 IL 120205.
4. Arbitration award in dissolution of marriage case upheld. Parties to a divorce case agreed to resolve their property and maintenance issues through binding arbitration and entered into a Mediation/Arbitration Agreement pursuant to the Illinois Uniform Arbitration Act. The agreement stated that “in lieu of trial, the parties agree to engage in binding arbitration, which is expressly subject to the Arbitration Act.” The trial court ultimately confirmed the arbitration ruling and entered judgment over wife’s objection. The Second District upheld the trial court’s confirmation of the award after wife appealed the ruling that husband’s business was non-marital as well as the maintenance award she received pursuant to Section 504 of the IMDMA. The Arbitration Act provides for very limited judicial review and there exists a presumption that the arbitrator did not exceed his or her authority nor violate public policy. A court can overturn an arbitrator only if there is a gross mistake of fact or law and such mistake must be on the face of the award itself. In re the Marriage of Haleas, 2017 App (2d) 160799.
5. First District changes opinion on proper timing of post-judgment appeals. Former husband appealed from the trial court’s orders resolving several post-judgment matters while some issues remained pending in the trial court. The First District held that despite its previous holdings, the progeny of Supreme Court cases speaking to when an appellate court has proper jurisdiction over post-judgment appeals required it to depart from its prior rulings and apply the language of Rule 304(a). Because there were claims for attorneys’ fees still pending in the trial court and the trial court did not enter the finding required to confer jurisdiction on the Appellate Court, the appeal was dismissed for lack of jurisdiction. Rule 304(a) applies where the parties present multiple claims; the trial court enters a judgment on at least one of those claims; and that judgment on the claim is final. This holding also comports with the authority in the Second and Fourth Districts. In re Marriage of Teymour and Mostafa, 2017 IL App (1st) 161091.
6. Modification from one parent serving as the primary custodial parent to both parents having equal parenting time was not a “minor modification” pursuant to section 610.5(e(2) of the IMDMA. In a post-judgment proceeding, ex-husband brought a motion to modify the regular parenting schedule wherein he sought a 6% increase in his parenting time as well as a change from joint decision-making to sole decision-making. The 6% increase would have resulted in a 50/50 parenting schedule. Ex-wife filed a motion to dismiss. The amended IMDMA now allows for a modification of parenting time absent a substantial change of circumstances in limited situations. The court may modify a parenting plan without a showing of changed circumstances if the modification constitutes a minor modification in the parenting plan or allocation judgment. However, ex-husband’s motion was not a minor modification of the parenting plan since the result would modify the judgment such that there would no longer be a primary custodial parent, but rather both parents would have equal parenting time. In re the Marriage of O’Hare and Stradt, 2017 IL App(4th) 170091.
7. Trial court reversed for failure to apply 40% cap on combined income pursuant to Section 504(b-1)(1)(A). In a case where husband earned $91,000 per year and wife earned $26,000 per year, the trial court subtracted 20% of wife’s gross income from 30% of husband’s gross income to arrive at the ordered maintenance amount ($22,080 per year or $1,840 per month). However, when wife’s maintenance award was added to her gross employment income, her gross income exceeded 40% of the parties’ combined gross incomes. The failure of the court to cap the maintenance award was in error as the calculation should have been reduced to comply with Section 504(b-1)(1)(A). Additionally, the Court noted the trial court made no findings as to any reason for a deviation, which it could have done. In re the Marriage of Brill, 2017 IL App (2d) 160604.
8. Termination of maintenance reversed. After wife’s maintenance had been extended twice after two separate reviews, husband petitioned to terminate due to his pending retirement. The trial court granted his petition and terminated wife’s maintenance and the Second District reversed. Wife had originally been granted $4,150 per month in unallocated support with a review after 3 years. At the review, the court increased the unallocated support to $6,000 per month reviewable in 5 years. At the time of the second review, the trial court ordered permanent maintenance at $3,600 per month. At the time, wife was earning $42,000 and had minimal assets while husband’s average salary was $225,000. The trial court found that the goal of wife becoming financially independent in order to maintain the standard of living enjoyed during the marriage was not attainable. In 2014, eight years later, husband petitioned to terminate the permanent maintenance alleging his salary had decreased and he wished to retire within the year. The trial court granted his petition finding that wife had failed to make reasonable efforts to become financially self-sufficient and failed to obtain further education or training to advance her career. The Appellate Court reversed noting that the trial court gave no deference to the prior court’s ruling awarding wife permanent maintenance and the Appellate Court’s affirmation of that award. Furthermore, husband had sufficient assets to continue to satisfy his maintenance obligations. In re the Marriage of Bernay, 2017 IL App (2d) 160583.
9. Relocation to New Jersey denied. In a parentage case, mother filed a petition for relocation of a four-year old boy to New Jersey due to her new husband’s employment and father objected. The trial court denied the relocation after a trial and mother appealed. The Appellate Court affirmed after analyzing the factors enumerated in Section 609.2 of the IMDMA. While the cases of In re the Marriage of Eckert, 119 Ill.2d 316 (1988) and In re the Marriage of Collingbourne, 204 Ill.2d 498 (2003), are still applicable to relocation cases after the 2016 amendments to the IMDMA, it noted a distinction between the first Eckert factor and the new statute. Section 609.2 modified the first Eckert factor to only reference the best interests of the child, not the custodial parent. In re Parentage of P.D., 2017 IL App (2d) 170355.
10. Husband’s power-of-attorney and the recipient of sales proceeds of marital business properly joined as third-party defendant in divorce case. 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. Wife successfully joined the brother-in-law as a third-party defendant. 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 wife’s third-party complaint. In re the Marriage of DiFiglio, 2016 ILApp (3d) 160037.