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
1. Language in marital settlement agreement did not contemplate such a substantial increase in income for the purposes of modifying support. Husband appealed the trial court’s denial of a motion to reduce support after his income increased from $138,000 at the time of judgment to $2.2 million at the time he moved to modify support. The language in the MSA provided that husband was to pay 28% of his base pay plus 28% of any bonuses. The judgment was entered in 2011, prior to the change in the child support statute. Husband moved to modify his support in 2018 after he started a business post-divorce which was the reason for the drastic increase in income and argued that the requirement to pay 28% of his total income would now be a windfall to wife. The trial court ruled that the parties had contemplated husband’s variable income when entering into the judgment and that there was no substantial change of circumstances. The Appellate Court reversed. There was no evidence that the parties intended that if the husband had earned 16 times the amount he was earning when the judgment was entered, that such an increase would not have been a substantial change in circumstances. In re Marriage of Yabush, 2021 IL App (1st) 201136.
In re Marriage of Yabush, 2021 IL App (1st) 201136.pdf
2. Loans from parents not income for purposes of support. Husband appealed the trial court’s finding in a post-judgment support modification hearing that money wife received from her parents were loans and not includable in the income shares calculation for child support or the maintenance calculation. Under the original judgment husband paid $2,488 in child support every two weeks and $3,285 in maintenance every two weeks. The judgment provided husband had a net annual income of $186,635. Less than a year after the entry of judgment, husband filed a motion to reduce his support on the basis that his income had decreased. After an evidentiary hearing, the trial court reduced husband’s maintenance to $1,932 every two weeks. The court found the guideline support calculation would be $1,346 per month but deviated upward to $3,048 per month and delineated reasons for the upward deviation including the needs and expenses of the children. The Appellate Court affirmed the trial court’s exclusion of approximately $700,000 in loans from wife’s parents for expenses and $800,000 for attorneys’ fees. While the trial court should consider loans as potential income for purposes of calculating support, whether the loans should be included as income depends on the facts of each case. The trial court believed wife’s testimony and found her credible on the issue of whether she would be required to pay back the loans. Wife had maintained records each time her parents loaned her money and paid off a credit card balance. There were also signed notes for some of the sums she received. Further, the loans did not enhance her wealth, but rather were used to pay for expenses that would have been covered by the support payments. In re Marriage of Ash and Matschke 2021 IL App (1st) 200901.
In re Marriage of Ash, 2021 IL App (1st) 200901.pdf
Trial court reversed for ordering intervenor to sell property for payment of the parties’ attorneys’ fees. In a litigious case spanning approximately 9 years including two interlocutory appeals and the involvement of 10 different circuit court judges, the trial court ordered wife’s sister (who had also intervened in the case) to sell property in Florida to pay for the parties’ attorneys’ fees. The property was titled in the intervenor’s name at the time she appealed. The Appellate Court reversed stating the order was manifestly unreasonable under the circumstances and an abuse of discretion. The order which was appealed was a mandatory injunction to pay for interim fees, was overreaching, and not sufficiently tailored to achieve its desired purpose while accounting for the other relevant considerations. The record evidenced that the parties had other assets to pay their obligations. Therefore, there was an adequate remedy at law available to the attorneys which would remain available without the necessity of extraordinary relief of selling that specific property in question. The Appellate Court noted on more than one occasion that the case simply needed to be resolved. In re Marriage of Roman-Kroczek and Kroczek 2021 IL App (1st) 210613.
In re Marriage of Roman-Kroczek, 2021 IL App (1st) 210613.pdf
4. Petition for contribution to college expenses denied. Wife appealed the trial court’s dismissal of her petition for contribution to college expenses. The dissolution judgment provided that husband agreed to pay for all of the parties’ three children’s “past, present and future college expenses.” The primary issue was whether the language of the judgment imposed an indefinite obligation of husband to pay for a four-year degree. The petition was filed just prior to the child’s 30th birthday and sought reimbursement for expenses incurred after her 23rd birthday. The child did not demonstrate a propensity for higher learning and she did not have a “C” average. Husband also submitted that he had paid for all expenses incurred within the four consecutive years after her graduation from high school, but she would still need an additional two years to obtain a four year bachelor’s degree. The Appellate Court affirmed the dismissal of the petition. In re Marriage of Graham, 2021 IL App (3d) 200476.
In re Marriage of Graham, 2021 IL App (3d) 200476.pdf
5. Motion for involuntary dismissal upheld on basis of affidavit. Husband brought a motion for involuntary dismissal pursuant to Section 619 of the Code of Civil Procedure to which he attached an affidavit alleging facts in support of an affirmative defense to the underlying petition for contribution to college expenses. Among those facts were that the child did not meet the condition precedent for payment of her college expenses such that she had attended college part-time off and on for several years, but would still take another two years to complete her degree; she did not maintain a cumulative GPA of a “C”; and that she had failed numerous classes. No counter-affidavit was filed which refuted such facts. Therefore, those facts were properly deemed admitted. Therefore, the trial court did not err as a matter of law in dismissing the underlying petition. In re Marriage of Graham, 2021 IL App (3d) 200476.
In re Marriage of Graham, 2021 IL App (3d) 200476.pdf