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
Illinois Supreme Court upholds ruling that maintenance payments, as set forth in the parties’ Marital Settlement Agreement, are nonmodifiable. Husband appealed the trial court’s ruling that the maintenance payments set forth in the parties Marital Settlement Agreement (MSA) were nonmodifiable pursuant to Section 502(f) of the IMDMA. The Appellate Court affirmed, and husband appealed to the Illinois Supreme Court, which also affirmed. The parties’ MSA contained a maintenance payment schedule with detailed amounts owed each year for a specific period of time. The MSA also contained the following language: Said maintenance payments shall be nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. Husband argued that the obligation was modifiable under Section 502(f) because 502(f) provides that if the parties do not provide that the maintenance is non-modifiable in amount, duration, or both, that the terms are modifiable upon a substantial change of circumstances. The Supreme Court disagreed and held that the maintenance obligation was nonmodifiable stating that his argument had “absolutely no support” and that the language of the MSA not only expressly provided the obligation was nonmodifiable, but it specifically cited the applicable provision of the statute. In re Marriage of Dynako, 2021 IL 126835.
In re Marriage of Dynako, 2021 IL 126835.pdf
2. Illinois Supreme Court holds that support payor’s receipt of required mandatory distributions from an inherited IRA is income for purposes of maintenance and child support. In a matter of first impression, the Illinois Supreme Court held that a support payor’s receipt of mandatory distributions from an inherited IRA is income for purposes of Sections 504 and 505 of the IMDMA. Husband inherited approximately $615,000 during the pendency of the divorce case, the majority of which was held in inherited IRAs. The trial court did not include the distributions in the maintenance and child support calculations and the Appellate Court reversed. The Supreme Court affirmed the Appellate Court. The Court focused its analysis on the case law which broadly construes income as “income from all sources” and its prior ruling in Mayfield, 2013 IL 114655 which defined income as gains and benefits that enhance a noncustodial parent’s wealth and facilitate that parent’s ability to support a child. It also distinguished the case at bar from In re Marriage of McGrath, 2012 IL 112792, which involved an unemployed payor living off of assets awarded to him in the divorce. In its opinion, the Court restated McGrath’s significance to mean that in order to avoid double counting, the liquidation of an asset awarded in a divorce is not income if the asset has been previously imputed to the party for maintenance and support purposes. The Court also restated the holding in In re the Marriage of Rogers to mean that the money at issue in that case ultimately factored into support as income not because it was received as gifts and loans, but because it was received after the divorce and had not been previously imputed as income for support purposes. Therefore, because the husband in the case at bar never earned or contributed to the inherited IRAs, any distributions he received from the accounts increased his wealth, and should be included in the statutory definition of income for purposes of calculating support. In re Marriage of Dahm-Schell and Schell, 2021 IL 126802.
In re Marriage of Dahm-Schell, 2021 IL 126802.pdf
3. Illinois Supreme Court holds income for purposes of support and maintenance includes reinvested income into inherited IRAs. In a matter of first impression, the Illinois Supreme Court held that the fact that husband chose to reinvest required mandatory distributions from an inherited IRA into his own IRA does not shield such distributions from being considered income for purposes of maintenance and support calculations. It was husband’s choice to reinvest the required mandatory distributions into his own IRA, and such action does not exclude such funds from the statutory definition under the IMDMA. In re Marriage of Dahm-Schell and Schell, 2021 IL 126802.
In re Marriage of Dahm-Schell, 2021 IL 126802.pdf
4. Trial court’s issuance of a plenary order of protection reversed due to petitioner not proving harassment under the Domestic Violence Act. In a procedurally complex case involving a family who traveled back and forth to Estonia multiple times during their marriage, mother refused to return to Illinois in January of 2020 with the two minor children as planned and as evidenced by the return airline tickets which had been booked for the entire family. Father filed an application to the Estonia court for return of the children to Illinois under the Hague Convention. Father also filed a petition for plenary order of protection in Illinois asking for the children to be returned as part and parcel to the request for an order of protection. After multiple days of continued hearings, the Illinois trial court issued a plenary order. The Estonian court also denied father’s Hague application. Mother appealed the plenary order in Illinois and the Appellate Court reversed holding that father failed to prove harassment under the Domestic Violence Act (DVA). The DVA defines harassment, partially, as conduct which would cause a reasonable person emotional distress and does cause emotional distress. The Act creates a rebuttable presumption of emotional distress as (1) improperly concealing a minor child; (2) threatening to improperly remove a minor child from the jurisdiction (3) repeatedly threatening to conceal a minor child or (4) making a single such threat following an actual or attempted improper removal or concealment. Father argued that mother’s removal of the children constituted harassment per se under the statute, not that her conduct satisfied the elements of harassment. The Court stated that even if it assumed mother’s alleged conduct did amount to an improper removal of the children from the state, such a removal in and of itself does not fall within the definition of harassment or emotional distress. In reversing the trial court, the Court noted the improper use of the DVA which is meant to aid victims of domestic violence, not using its provisions for the primary purpose of obtaining custody. Steven W. v. Meeli W., 2021 IL App (2d) 200652.
Steven W. v. Meeli W. 2021 IL App (2d) 200652.pdf
5. Orders entering and continuing an emergency order of protection until next hearing date on plenary OP upheld. A grandfather appealed interlocutory orders extending an emergency order of protection (OP) obtained by a father against him which protected four minor children of whom he was the maternal grandfather. The orders were entered in the middle of the evidentiary hearing and continued the emergency OP until the next date each time. The Appellate Court ruled it had jurisdiction over the orders because the grandfather had timely appealed the most recent extension order (January 13 order) and because that order bore directly upon whether the trial court properly entered an order on December 23, 2019. The Court also noted that the issues on appeal had a significant public interest, and therefore the public interest exception to the mootness doctrine applied. The grandfather’s primary argument on appeal was the December 23 order extended the emergency OP 46 days, which was greater than 21 days, which the Domestic Violence Act (DVA) requires the hearing to occur within. The plain language of Section 220 of the DVA provides that an emergency OP shall be effective no less than 14 nor more than 21 days unless it is reopened or extended or voided by entry of an order of greater duration. The statutory language clearly and unambiguously conveys discretion to the circuit court to enter an order extending an emergency OP to a duration greater than 21 days. Fricke v. Jones, 2021 IL App (5th) 200044
Fricke v. Jones, 2021 IL App (5th) 200044.pdf