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
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
1. Trial court had authority to modify a parentage and child support judgment issued by Thailand. This procedurally complex case which has been previously been appealed twice during the proceedings, involves the parentage and child support of triplets born via IVF to unmarried parents, oneAmerican businessman father who spent significant amounts of time in Thailand, and a woman in Thailand.After the father stopped voluntarily supporting the triplets and the relationship ended, mother filed for parentage and support in Thailand. The father was found to be the biological father via DNA testing, although he consistently denied parentage throughout the lengthy and protracted proceedings. The Thai court ordered him to pay $500 per child in child support until the children were 20 years old. Father did not pay any of the court-ordered support. Mother subsequently moved to the U.K. where she later married and filed her petition to enroll, enforce, and modify support in Illinois (where father resided) pursuant to the jurisdictional provisions of the Uniform Interstate Family Support Act (UIFSA). The Illinois trial court ruled that it had jurisdiction and authority to enroll, enforce, and modify a child support order originally issued in Thailand. Father appealed and the Appellate Court upheld. Traditional common-law principles of comity allow Illinois courts to enforce the terms of a child support order entered in the court of a foreign nation absent a showing of fraud in the procurement or if the enforcement of the judgment violated public policy. Further, both the laws of Illinois and Thailand allow for modification of an existing child support order upon a showing of a substantial change in circumstances. Therefore, once a foreign judgment is properly enrolled as a domestic support judgment, an Illinois court may entertain and decide an application for enforcement or modification under Section 510 of the IMDMA. The Court also analyzed the issue under Section 615(a) of UIFSA and whether Thailand qualified as a “foreign country” as defined by the statute, and whether Thailand was refusing to exercise jurisdiction to modify its own support order. The Court ultimately held that Thailand was not a defined foreign country under UIFSA because it has not been declared a foreign reciprocating country under federal law and has not established a reciprocal arrangement for child support with Illinois. The Court therefore rejected father’s argument that Thailand met the definition of a “foreign country” which would require an understanding of whether it was refusing to exercise jurisdiction to modify its own order before the Illinois court could proceed on the modification issue. As a result, the Illinoistrial court had authority to consider and adjudicate mother’s petition to modify support. In re the Parentage of A.H. 2023 IL App (1st) 190572.
In re Parentage of A.H.
2. Trial court properly applied the pre-2017 child support statute to modification proceeding.Father appealed the trial court’s application of the pre-2017 child support amendments (2016 statute) to a procedurally complex case (see Flash Point #1) and argued that the post-amendment statute should have been the statutory guidelines utilized. The Appellate Court affirmed the trial court. Section 801 of the IMDMA states that the amendments apply to all proceedings commenced after its effective date (July 1, 2017) for the modification of a judgment or order entered prior to the effective date. Mother had filed her petition to modify child support in 2011, and the original Thai judgment was entered in 2010. Because both the entry of the Thai judgment and the filing of the petition seeking modification of that judgment took place before July 1, 2017, the 2016 statute applied. In its ruling on the requested modification, the trial court found that guideline support based on father’s monthly income of $33,113 per month was $45,596 per month, but deviated downward to an award of $11,000 per month per child ($33,000 per month total).In re the Parentage of A.H. 2023 IL App (1st) 190572.
In re Parentage of A.H.
3. Refusal to allow expert testimony regarding immigration law an abuse of dissection, but harmless error. At issue was whether the trial court abused its discretion by refusing to admit expert testimony from a U.K. immigration attorney in a highly contested foreign child support case (see Flash Point #1). Mother had filed an emergency motion for modification of child support on the grounds that shew was facing immediate deportation along with her triplets because she could not adequately provide for their means and support, among other grounds. The trial court had dealt with the immigration component of the case a number of times before trial, and it indicated that it would not address the immigration issue, but rather focus solely on the child support and best interest of the children under the relevant Illinois laws. At trial, the court barred testimony from both parties’ immigration law experts. Father’s offer of proof showed that the intended testimony would have discussed U.K. immigration laws, asylum, and lawful residency in the U.K. The Appellate Court reasoned that if the U.K. deported the mother and triplets to Thailand, that would be relevant information for the court to know in determining whether a substantial change in circumstances existed. Although this testimony would have been relevant, it was harmless error because no deportation had occurred and the mother and triplets remained in the U.K.In re the Parentage of A.H. 2023 IL App (1st) 190572.
In re Parentage of A.H.
4. A substantial change of circumstances in existed in a foreign child support case where mother and children reside in the U.K. and father is in Illinois. Husband appealed the trial court’s finding that a substantial change in circumstances existed warranting a support modification from $500 per month per child to $11,000 per month per child in a complex and contentious foreign support case (see Flash Points 1-3 above). It was undisputed that husband was a successful businessman which significant holdings. He had a wife and one child in the U.S. when he fathered three triplets with a woman in Thailand via IVF. At the time of trial, mother was living a frugal existence in the U.K. with her husband and the triplets which included receiving public aid. Mother could not work due to her immigration status in the U.K. and her husband had a very modest job. The triplets were on public health care which was not sufficient for at least one of the children who had some challenging health issues. Father argued that mother’s request for modified support was a disguised request for maintenance. At the time of trial the triplets were approximately 8 years old, their needs had increased since the original order, and mother and her husband could not provide for them to attend extracurricular activities, have computers for school, or dental care. Husband also challenged the trial court’s ruling that support should be modifiable back to the date of mother’s filing, but the Court held there was no abuse of discretion with the trial court’s ruling and upheld. The total arrearage was calculated to be just under $2 million dollars including past due interest.In re the Parentage of A.H. 2023 IL App (1st) 190572.
In re Parentage of A.H.
5. Creation of 503(g) child support trust upheld. In a foreign child support case (see Flash Points 1-4 above), the trial court ordered that father fund a child support trust with $4.5 million dollars and father appealed. Prior to the creation of the trusts, father had consistently denied that he was the father of the children despite DNA evidence to the contrary and he had consistently refused to voluntarily pay support. Due to the protracted litigation and his failure to comply with court orders, the trial court had to appoint a receiver to seize control of his assets and income in order to compel compliance with support obligations. Father had also taken action to see that the triplets were specifically written out of his various estate planning documents. The manifest weight of the evidence indicated that the creation of the child support trusts were necessary and in the children’s best interests. The Court engaged in a lengthy discussion regarding the necessary elements of a 503(g) trust and found that the language of the trust complied with all requirements with the exception of a provision that if father died prior to the termination of the trust that any remaining funds would be distributed to his heirs at law. Instead, the funds should have been returned to his estate. In re the Parentage of A.H. 2023 IL App (1st) 190572.
In re Parentage of A.H.
6. Award of fixed-term maintenance upheld. Husband appealed the award of fixed term maintenance of a monthly amount plus a percentage of his bonus claiming that wife had the ability to meet her own financial needs without maintenance. The Appellate Court affirmed. The parties had been married for 18 years. At the trial, wife reported a monthly cash flow deficit of $2,505. Husband had a cash flow surplus of approximately $11,000. Wife earned $89,0000 per year and husband earned over $300,000 per year. The trial court awarded wife 13 years of maintenance per the statutory guidelines in an amount of $2,696 plus 21% of husband’s annual bonus up to $125,000. In its analysis, the Appellate Court stated that the trial court’s decision to award maintenance is presumed to be correct. The benchmark for determining the amount of maintenance is the recipient’s reasonable needs in light of the standard of living established during the marriage. Wife would never likely match husband’s earning capacity and therefore fixed maintenance was required for her to have some reasonable approximation of the standard of living established during the marriage. In re the Marriage of Carbone. 2023 IL App (4th) 220983.
In re Marriage of Carbone