FAMILY LAW FLASH POINTS (May 2018)

By Donald C. Schiller and Michelle A. Lawless

Schiller DuCanto & Fleck LLP

Chicago, Lake Forest and Wheaton, Illinois

Telephone: (312) 641-5560; Facsimile:  (312) 641-6361

E-Mail:   www.sdflaw.com; dschiller@sdflaw.com; mlawless@sdflaw.com

 

  1. Trial court erred when it applied the law-of-the-case doctrine. In a post-judgment maintenance modification hearing, the trial court granted ex-husband’s request for a downward modification of maintenance due to a change in employment, but denied his request for a termination of maintenance based on the law-of-the-case doctrine.  The trial court held that because a prior judge in 2011 had ordered ex-wife to receive “indefinite” maintenance at a maintenance review hearing, that it was bound by that ruling according to the law-of-the-case doctrine.  The Appellate Court reversed.  Pursuant to the law-of-the-case doctrine, questions decided on a previous appeal are binding on both the trial court on remand and the appellate court on subsequent appeals.  Because there was no appeal in this matter on the prior maintenance ruling, the application of this doctrine was in error.  The Court also noted that irrespective of how a prior court rules on a maintenance review, a subsequent court is not precluded from modifying the award where a party establishes a substantial change of circumstances.  In re Marriage of Carstens, 2018 IL App (2d) 170183.

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/2ndDistrict/2170183.pdf

  1. Trial court reversed for not applying maintenance duration guidelines. In a post-judgment maintenance modification hearing, the trial court held that the maintenance duration guidelines set forth in Section 504(b-1) of the IMDMA were not applicable and the Appellate Court reversed.  Consistent with the Second District’s ruling in In re the Marriage of Benink, 2018 IL App (2d) 170175, the Court held that because ex-husband filed his petition to terminate or reduce maintenance on February 24, 2016, and his amended petition on April 22, 2016, both petitions were filed after the effective date of the 2016 amendments to the IMDMA (which was January 1, 2016).  Because the petition sought modification of a March 31, 2011 order, the 2016 amendments clearly applied to the petition under Section 801(c) of the IMDMA and the amendments, and thus the maintenance duration guidelines, should have been applied to these proceedings.   In re Marriage of Carstens, 2018 IL App (2d) 170183.

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/2ndDistrict/2170183.pdf

  1. Trial court affirmed on reduction of child support and arrearage under theory of equitable estoppel. In a procedurally complex post-judgment case which involved IDHS intervening at certain points to collect unpaid child support, a court order was drafted, but not entered, finding that a support arrearage of $8400 existed and setting out an ongoing support amount.  Despite the fact the order was not entered, the support recipient filed a memorandum of lien against the payor’s home and received the arrearage payment when the payor applied for a home equity line of credit.  Later, the payor and the recipient verbally agreed for the payor to make payments of $165 per week in lieu of the original judgment’s payment amount of $788 per month.  The payor made such payments from 2006 through 2014, but not consistently.  The payee later sought IDHS assistance to collect unpaid support.  Due to the fact that a court order had never been entered regarding the arrearage that had been paid off or the agreement the parties had reached on a modified support payment, the amount IDHS stated the payor owed was disputed by the payor.  Ultimately, the trial court found that the principle of equitable estoppel should apply to the payment of the arrearage and the $165 payments made from 2006 through 2014.  The Appellate Court affirmed. Generally courts have exclusive authority to modify child support and are not bound by the parties’ agreements.  However, in reliance of the recipient’s agreement to accept the arrearage out of the line of equity proceeds and $165 per week in ongoing support, and the acceptance of such payments over a period of time, the payor did not take further action to formally modify his support in court.  Under the principle of equitable estoppel, by accepting such payments, the recipient induced him to rely, to his detriment, on the assumption that he was satisfying his child support obligation and his reliance was reasonable.   In re Marriage of Hodges, 2018 IL App (5th) 170164. 

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/5thDistrict/5170164.pdf

  1. Trial court reversed and cohabitation found to have occurred even though relationship had ended by the time the case was adjudicated. Ex-husband brought a petition to terminate maintenance on the basis that his ex-wife was cohabitating with her boyfriend in Louisiana.  The trial court found that the ex-wife was not in a de facto marriage when taking into account all of the factors it was required to consider.  The Appellate Court reversed finding the following: that the ex-wife had a conjugal relationship with her boyfriend before the divorce was finalized; she had slept at her boyfriend’s house on a daily basis from May to November 2015; had unfettered access to his home; moved her daughter into his home for a period of time; stored and washed her clothes at his house; purchased groceries for his family; and referred to herself, her daughter and her boyfriend’s family as a “family” on social media.  It appears the Appellate Court also gave weight to the fact that the relationship ended about the time the petition to terminate maintenance was filed.  In re the Marriage of Walther, 2018 IL App (3d) 170289.

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/3rdDistrict/3170289.pdf