By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
Trial court affirmed allowing former wife, who pays maintenance to former husband, to redirect maintenance payments to pay creditor’s judgment against her for a debt former husband failed to pay. In a post-judgment action, wife filed a petition to abate her monthly maintenance payments to husband in order to pay off a $24,858.88 money judgment entered against husband and wife for unpaid assessments and penalties brought by their former condo association. Husband was ordered to pay the monthly assessment in both a pre-judgment temporary order and the final divorce judgment, which included an indemnification clause in favor of wife. When husband failed to meet that obligation and the money judgment was subsequently entered, wife brought a petition to abate maintenance so that she could divert the maintenance payments from husband to the creditor. The trial court found her motion was more properly categorized as a motion to enforce judgment, and ordered wife to use her maintenance payments to pay down the judgment debt. Husband appealed. The Appellate Court affirmed holding that trial courts should look to the relief requested, not merely the title of the pleading when fashioning relief, and that the trial court properly treated wife’s motion as a motion to enforce. As such, wife was not required to meet the legal threshold of a substantial change in circumstances in order to obtain the relief she requested because she was not seeking to modify the amount or duration of her maintenance obligation. The trial court was also not required to compel her to complete a Financial Affidavit since she was not seeking to establish, modify, or enforce a maintenance payment. In re Marriage of Dragoi-Zulicic and Zulici, 2021 IL App (1st) 191732.
Plenary Order of Protection can be extended indefinitely. The Fourth District held that a plenary order of protection can be extended indefinitely under the plain language of the Domestic Violence Act (DVA). Wife sought an emergency order of protection for herself and the minor children against husband which was granted. The allegations included that husband had hired a hit man to murder his business partner and that husband had told her over the years if she told anyone he would hurt her. Wife made additional allegations that he had electronically monitored her, refused to let her get a job, hurt her wrist and arm, and raped her. The emergency order of protection was granted as was a subsequent plenary order of protection for two years. Prior to the expiration of the plenary order, wife sought an extension for an indefinite period of time. Husband did not appear at the hearing and the order of protection was extended indefinitely. Husband then appealed and the Appellate Court affirmed. The Court opined that the plain language of Section 220(e) of the DVA states that “An extension of a plenary order of protection may be granted, upon good cause shown, to remain in effect until the order of protection is vacated or modified.” Although the initial order of protection has a specific time period of two years under the statute, no time limit exists for the extension of such an order. The Court engaged in a lengthy statutory construction analysis which included reasoning that because there was a more specific rule governing extensions in subsection (e), any conflict between the more general two-year rule is resolved in favor of the specific one. Dale v. Bennett 2021 IL App (4th) 200188.
3. Denial of relocation petition upheld. In a contentious divorce case which involved an orders of protection, an unfounded DCFS sexual assault claim against husband, and a criminal charge against a third party for battery and attempted kidnapping of the wife, the trial court denied wife’s petition to relocate with the minor child to California. The trial court heard extensive testimony in the matter over a three (3) year period and appointed a GAL and 604.10(b) evaluator. The evaluator opined that wife should be allowed to relocate. The GAL prepared a written report which in part stated that wife had not investigated any schools the child would attend, although he had and found them to be above average. The evidence also indicated that husband had unsupervised visitation for the majority of the divorce proceedings and an approximate equal parenting schedule which he exercised. In its oral ruling the trial court went through each relocation factor in the IMDMA before denying the request. The court noted that the parties had no ability to co-parent and would not easily work together to fashion a reasonable parenting schedule if wife was allowed to relocate. The court also noted that the majority of the evidence presented at trial related to why relocation would be beneficial for wife – not the minor child. Wife presented no evidence of a job or how she would support the child, what school the child would attend, or how the child’s life would be enhanced. The Appellate Court affirmed the trial court holding that it could not say that the judgment was against the manifest weight of the evidence or that its decision worked a manifest injustice. In re Marriage of Levites, 2021 IL App (2d) 200552.
4. Illinois Supreme Court grants two Petitions for Leave to Appeal in family law cases. The Supreme Court has granted a PLA in the case of Dahn-Schell v. Schell, which deals with the question of whether mandatory distributions or withdrawals from an inherited IRA containing non-marital funds constitute income for purposes of maintenance and child support. The Fifth District held that they did constitute income. The second case is Dynako v. Dynako, which presents a question of whether the trial court properly denied the husband’s motion to modify maintenance. The First District, which affirmed the trial court, held that the original maintenance order was nonmodifiable. The Appellate Court rejected husband’s claim that maintenance was modifiable because the agreement did not specifically track language of Section 502(f) that maintenance was non-modifiable in amount, duration or both.”