By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
1. First District limits a parent’s ability to have access to potentially relevant discovery under the Mental Health and Developmental Disabilities Confidentiality Act if the child in question exercises the privilege. In a post-judgment proceeding where mother sought to restrict father’s parenting time based on allegations that the father would interfere with the child’s mental health services and the minor child did not consent to father seeing records protected by the Confidentiality Act, father moved for production of the child’s medical, psychiatric, psychological and school records from mother, who held the records. The trial court denied father’s request. The First District answered the following certified question: May a trial court, in a proceeding relating to a petition to restrict parenting time pursuant to section 603.10 of the IMDMA, where allegations involve the mental health of a child who is at least 12 but under 18 years old, deny a parent based on the provisions of the Confidentiality Act and the best interests of the child the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want said evidence disclosed to that parent. The First District answered in the affirmative and held that the trial court may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child the ability to access such information, except for limited records regarding the child’s current physical and medical condition, diagnosis, treatment needs, services provided, and services needed, on the grounds that the child in question does not want said evidence disclosed to that one parent. The records referenced that the father is permitted to receive are specifically enumerated in the Confidentiality Act as an exception to the documents which are protected by the privilege for a child older than twelve but under 18 years of age. Father cannot avoid the effect of the child asserting his privilege by seeking the documents from another source besides the therapist. The child had not taken any action to forfeit his privilege against the disclosure of confidential records and communications, and he did not introduce his mental health as a claim of his in his parents’ post-judgment proceeding. In re Marriage of Wendy W. and James W. 2022 IL App (1st) 201000.
In re Marriage of Wendy W., 2022 IL App (1st) 201000.pdf
2. First District limits a parent’s ability to have access to potentially relevant discovery under the Mental Health and Developmental Disabilities Confidentiality Act even if the parent is entitled to receive such information under the allocation judgment and the child representative has also reviewed such records. The Appellate Court answered two additional certified questions in addition to the question in Flash Point #1 pertaining to whether the father had a right to see the records in question per the allocation judgment and because the child representative had also viewed the records. The Court held a trial court may deny a parent, based on the provisions of the Confidentiality Act or best interests of the child, the ability to discover the child’s medical records protected by the Confidentiality Act, even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ parental allocation judgment. The minor child is not a party to his parents’ underlying petition for dissolution of marriage or allocation judgment, so it cannot be said that he forfeited his right to assert his privilege under the Confidentiality Act. The patient alone holds the privilege and alone can waive it. Because the patient alone holds the privilege, the patient has the ability to control who sees such records and communications. In re Marriage of Wendy W. and James W. 2022 IL App (1st) 201000.
In re Marriage of Wendy W., 2022 IL App (1st) 201000.pdf
3. Trial court did not err in imputing income to support payor when it found his testimony not credible regarding his income. In a highly contested post-judgment proceeding where the trial court dealt with a number of financial issues, the court imputed income to the payor (husband), who owned his own business, after lengthy testimony which revealed discrepancies between his tax returns and his financial affidavit. Husband appealed the imputation of income and the Appellate Court affirmed finding that an imputation was warranted due to the fact that the trial court had found husband’s testimony regarding his income not credible. Therefore, it is reasonable to conclude that that the trial court imputed income because husband was attempting to evade a support obligation, and therefore the imputation was not against the manifest weight of the evidence. In re Marriage of Britton, 2022 IL App (5th) 210065.
In re Marriage of Britton, 2022 IL App (5th) 210065.pdf
4. Accelerated deprecation must be excluded from the calculation of net business income for purposes of calculating support. After an evidentiary post-judgment hearing on the modification of support, the court found husband’s monthly gross income was $14,529. Husband appealed and the Appellate Court vacated the finding due to it not being clear how the trial court calculated such figure. Husband owned his own business and the testimony elicited from him was contradictory regarding the income reported on his tax returns and his financial affidavit. While the trial court was affirmed in the need to impute income, it was reversed as to the amount. At issue was the application of the deprecation business deductions to husband’s gross business income. The Court cited to Section 505(a)(3.1) of the IMDMA and the resulting case law which provides that the Section 505 explicitly excludes accelerated depreciation from the calculation of net business income but not does not mention nonaccelerated deprecation. The Appellate Court remanded with directions to the trial court to determine which business deductions were accelerated, remove them from consideration, and then determine which, if any, amount of nonaccelerated deprecation were reasonable and necessary to carry on the business. In re Marriage of Britton, 2022 IL App (5th) 210065.
In re Marriage of Britton, 2022 IL App (5th) 210065.pdf