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
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
1. Increase in ex-wife’ salary from $65,000 to over $100,000 constituted a substantial change of circumstances for purposes of maintenance modification. Ex-husband filed a petition to terminate maintenance payments in anticipation of his retirement and alleged that that in addition to his impending retirement, both he and ex-wife would be eligible to receive substantial pension payments pursuant to a previously entered QILDRO, and since the divorce ex-wife’s salary had increased from $65,000 to over $100,000. Ex-husband had remarried since the entry of judgment and ex-wife had not. The trial court found a substantial change of circumstances and existed and set ex-husband’s maintenance at $0. Wife appealed and the Appellate Court affirmed. The trial court’s finding that ex-wife experienced a significant salary increase and that her needs had changed such that the level of financial support she previously needed was no longer present (all of the parties’ children were past college-age), evidenced a substantial change in circumstances. Ex-wife now had the financial resources she needed based on her own earnings to enjoy the lifestyle enjoyed during the marriage, and ex-husband’s continued payments were essentially superfluous. It was not relevant that ex-husband now had access to more money because of his subsequent re-marriage; the question was whether ex-wife was now financially independent to the level that allowed her to enjoy the lifestyle during the marriage. By modifying the maintenance payment to $0, the trial court appropriately left ex-wife with the option to seek reinstatement of the payments should her financial situation change for the worse in the future. In re Marriage of Bostrom, 2022 IL App (1st) 200967. In re Marriage of Bostrom, 2022 IL App (1st) 200967.
In re Marriage of Bostrom, 2022 IL App (1st) 200967.pdf
2. Inclusion of pension fund in calculation of income for support purposes was in error since it was part of the original property settlement and contemplated by the marital settlement agreement. In a post-judgment action where ex-husband filed a petition to terminate maintenance payments in anticipation of his retirement and the trial court found a substantial change of circumstances existed, the trial court set ex-husband’s maintenance at $0. However, in its analysis of ex-wife’s current income, the trial court included the pension which ex-wife would be receiving from ex-husband’s pension. The Court held that this was in error as the pension was a distribution of property contemplated by the MSA. This error, however, did not change the Court’s resulting opinion given that her salary alone, without the inclusion of the pension was over $100,000, and therefore, the ex-wife was no longer in need of maintenance from ex-husband. In re Marriage of Bostrom, 2022 IL App (1st) 200967.
In re Marriage of Bostrom, 2022 IL App (1st) 200967.pdf
3. Post-judgment order to terminate wife’s maintenance reversed due to trial court’s lack of consideration of all relevant factors at hearing. In highly litigated case which has involved six appeals, wife petitioned to extend her maintenance at the end of the review period and husband filed a competing petition to terminate. The judgment provided that upon review: (1) wife had to file her petition for review 30 days after the final payment due under the original judgment; (2) the review would be de novo pursuant to the factors set forth in Section 504 of the IMDMA; and (3) wife must use her best effort to become increasingly self-supporting. The trial court terminated wife’s maintenance and wife appealed. The Appellate Court reversed and held that the trial court had solely focused on wife’s apparent lack of any efforts to become self-supporting and did not conduct a simultaneous review of the Section 504 factors, as there were no mention of these factors in the order. The original maintenance award was intended to be partially rehabilitative in nature subject to a limited de novo review, essentially adding wife’s efforts to become self-supporting as another 504(a) factor. The Court also reversed the denial of wife’s petition for contribution to her attorneys’ fees under the same theory. The trial court had failed to consider the 504(a) factors, which are required in a post-judgment fee contribution hearing if the petitioner is receiving maintenance pursuant to Sections 508(a) and 503(j). In re Marriage of Chapa, 2022 IL App (2d) 210772.
In re Marriage of Chapa, 2022 IL App (2d) 210772.pdf
4. Denial of petition for contribution to fees in the amount of $194,281 affirmed. The parties entered into a marital settlement agreement and judgment of allocation of parental responsibilities and parenting plan but reserved the issue of contribution to attorneys’ fees. The net value of the marital estate was approximately $590,000 and husband was awarded 55% of the marital estate and maintenance in the amount of $4,100 per month. He petitioned for contribution to fees in the amount of $105,612, which was the remaining amount of fees due and owing to his counsel, as well as reimbursement for the $88,668 already paid. He argued that the payment of his outstanding fees and costs would undermine his financial stability. The trial court denied his petition. The Appellate Court affirmed. It was husband’s burden to prove that the fees he incurred were reasonable, and the trial court’s finding that the case was relatively straight forward and the hourly rate of the counsel in the range of $500 to $550 per hour was in excess of any case that had come before him was not an abuse of discretion. The trial court also found that the billing entries did not adequately describe the work performed, contained time for a corollary Florida proceeding, and contained time for co-counsel who had a separate Appearance on file. Further, husband failed to prove that paying his fees would undermine his financial stability given that he was voluntarily unemployed and that his Financial Affidavit indicated he was living well above his means. In re Marriage of Buonincontro, 2022 IL App (2d) 210380.
In re Marriage of Buonincontro, 2022 IL App (2d) 210380.pdf