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.
Trial court reversed on finding a substantial change of circumstances due to wife’s employment earnings post-divorce. Wife appealed the trial court’s order modifying husband’s child support obligation under the judgment for dissolution. The trial court found that husband had proven a substantial change of circumstances which reduced his support from $2,776 per month to $1,567 per month due to wife’s increase in income from post-judgment employment. The original judgment calculated child support based upon 28% of husband’s net income pursuant to the IMDMA in effect at that time. The trial court applied the income shares approach when ordering the modified support amount. At the time of the divorce, wife worked occasionally as a part-time substitute teacher and earned nominal income and husband earned $211,000 annually. At the time husband filed a motion to modify child support, wife was earning approximately $57,000 and husband was earning approximately $250,000. Husband argued that wife’s increase in income was a substantial change of circumstances warranting a modification. Wife argued that husband was simply trying to take advantage of the change in child support statute and also relied heavily on the case of In re Marriage of Salvatore, 2019 IL App (2d) 180425 because certain provisions of the MSA and JPA contemplated her return to work. Specifically, the non-modifiable maintenance section of the MSA imputed an income of $65,000 per year to her in year five. There was also a pre-judgment order requiring her to seek gainful employment. Therefore, the Court found that a change in wife’s employment status, and therefore her income, was contemplated by the parties at the time of the divorce. No substantial change of circumstances existed which justified a modification in husband’s child support award. In re Marriage of Durdov, 2021 IL App (1st) 191811.
In re Marriage of Durdov, 2021 IL App (1st) 191811.pdf
Illinois court’s deferral to Utah to conduct parenting responsibilities and parenting time hearing upheld under UCCJEA. In a case involving a parenting dispute between two unmarried parents, father filed a petition to modify the parenting plan in Washington (the state who entered the original parenting plan). Months later, in Illinois, he filed a petition to modify the child custody determination entered in Washington. Illinois subsequently dismissed his petition explaining that Washington, not Illinois was still the child’s home state. Thereafter, the Washington court also dismissed father’s petition pending before it, finding that the mother and child had since moved to Utah, and that Utah was now the child’s home state. Father did not appeal this order. Thereafter, in March of 2020, when the mother came to Illinois to retrieve the child at the conclusion of father’s parenting time, he refused to turn over the child citing Covid-19 and the Illinois lock-downs in place. After months of trying to regain possession of the child in accordance with the Washington parenting time order, the Utah court, which had since enrolled the judgment, issued a TRO requiring father to return the child to the mother. In the meantime, father filed a petition to modify child custody in Illinois after he had possession of the child for six months in Illinois during Covid-19. Mother filed a motion to dismiss in Illinois which the trial court granted and father appealed. He argued that Utah never gained jurisdiction because the child did not reside in Utah for six consecutive months, and that the child had resided in Illinois for such time, thereby making Illinois the child’s home state under the UCCJEA. However, father’s failure to appeal the Washington court’s order granting Utah jurisdiction was fatal to his cause of action under collateral estoppel which provides that Illinois must honor the preclusive effect of another state’s judgment on a matter. The Court noted that the petition father filed in Illinois during Covid-19 was almost identical to the previous one he had filed in Washington which had been disposed of by the Washington court. The Court also noted that the only reason that father could argue that Illinois was the child’s home state was because he refused to comply with court orders obligating him to return the child to the mother. The Court called his conduct “unjustifiable and reprehensible” and stated that such conduct could not be a basis to invoke Illinois with jurisdiction. Camberos v. Palacios, 2021 IL App (2d) 210078.
Hernandez Camberos v. Palacios, 2021 IL App (2d) 210078.pdf
Trial court’s denial of mother’s petition for relocation upheld. Wife filed a petition for relocation as part of her petition for dissolution of marriage seeking to remove the minor child from Illinois to Tennessee. The trial court denied the request and the Appellate Court affirmed. The parent wishing to relocate bears the burden of proof that pursuant to Section 609.2 of the IMDMA that the relocation is in the best interest of the child. Although husband had an emergency order of protection entered against him at the beginning of the case and supervised visitation for a period of time, the trial court found that both parties had a role in husband not seeing the child at the beginning of the case. With respect to the statutory relocation factors, the educational opportunities for the child, who had autism, did not weigh in favor of relocation as wife did not present any clear evidence regarding same. Her testimony indicated that she had not engaged in extensive research as she gave vague answers when questioned about the differences in the school systems. The trial court also noted that wife did not present a clear proposed parenting schedule for husband and did not take into account long car rides between Illinois and Tennessee which the child could not tolerate. The Appellate Court stated that wife’s argument on appeal was essentially that the Appellate Court should weigh the evidence differently, but the trial court is in the best position to observe the parties and witnesses and assess credibility. Wife did not meet her burden to show that relocation was in the best interest of the child. In re Marriage of Kimberly R. and George S., 2021 IL App (1st) 201405.
In re Marriage of Kimberly R., 2021 IL App (1st) 201405.pdf
Section 607.6(d) and of the IMDMA revised. Effective immediately, subsection (d) of Section 607.6 of the IMDMA, which barred any and all information from therapy from being released regardless of whether the parties sign releases authorizing the therapist to speak with a third-party such as a Child Representative, has been removed. Now, the Mental Health Developmental Disabilities Confidentiality Act and federal Health Insurance Portability and Accountability Act (HIPPA) control the confidentiality and release of this information. The amended statute can be found here: House Bill 2741.