An interesting Father's Rights case for Bloomington Fathers (4th District)

In re the Parentage of J.W.

Illinois Supreme Court

Civil Court

Citation

Case Number:  2013 IL 114817

Decision Date:  May 23, 2013

District:  4th Dist.

Division/County:  Vermilion Co.

Justice:  THEIS

Holding:  Circuit court affirmed; appellate court reversed.

http://www.state.il.us/court/Opinions/SupremeCourt/2013/114817.pdf 

Biological father of 11-year-old girl, conceived in one-time sexual encounter but whose parentage had been presumed to be of mother's first husband, legally established his parentage. In proceeding to determine visitation privileges under Section 14(a)(1) of Parentage Act, initial burden is on the noncustodial parent to show visitation is in the best interests of the child, using best-interest standard of Section 602 of Marriage Act. Court's ruling that any presumption that it was in child's best interests to promote parent-child relationship was rebutted by evidence, considering child's actions and behavior and concern of expert and GAL for increased risk of harm to child at this stage in her concrete cognitive development if visitation with biological father were awarded. 

(KILBRIDE, FREEMAN, THOMAS, GARMAN, KARMEIER, and BURKE, concurring.)

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Jon D. McLaughlin

(309) 319-6206 


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Child Support Case that May Affect Your Bloomington Illinois Case

In re Marriage of Mayfield

Illinois Supreme Court

Civil Court

Citation

Case Number: 

 2013 IL 114655

Decision Date: 

 May 23, 2013

District: 

 4th Dist.

Division/County: 

 Woodford Co.

Justice: 

 THEIS

Holding: 

 Appellate court affirmed.

http://www.state.il.us/court/Opinions/SupremeCourt/2013/114655.pdf

Ex-husband received lump-sum settlement for workers compensation claim. Court must justify any departure from child support guidelines when allocating a lump sum. A one-time payment such as lump-sum settlement is income, but its nonrecurring nature may factor into court's decision on allocation. Ex-husband presented insufficient evidence to warrant deviation under Section 505(a)(2), and never speicifically asked court to depart from guidelines. Court properly set child support at 20% of lump-sum settlement, in absence of any evidence to support a different amount. (KILBRIDE, FREEMAN, THOMAS, GARMAN, KARMEIER, and BURKE, concurring.)

--
Jon D. McLaughlin

(309) 319-6206 


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Case Law Update: Cases that may affect your Bloomington Illinois Divorce or Child Custody Case

Contribution to Attorneys' Fees Pursuant to 503(j) Upheld.

In In re Marriage of Sobieski, 2013 IL App (2d) 111146, 984 N.E.2d 163, 368 Ill.Dec. 438, the appellate court affirmed the trial court's decision to order the husband to pay $43,180 towards wife's outstanding attorneys' fees. One of the main issues at trial was the proper calculation of husband's net income. The court agreed with the finding that his net monthly income was $12,000 given his lack of credible testimony. The husband admitted that he handled significant amounts of cash in his employment at a family-owned business. He had also filled out various financial applications that contradicted his own testimony about his income. On the other hand, the wife suffered from bipolar disorder and depression and had a significantly lower earning capacity than the husband. Although the husband argued that he and the wife were in similar financial situations after the divorce, the appellate court held that the trial court properly considered all of the statutory factors when ordering the contribution.

Guideline Child Support Appropriate even when Father Spends Substantial Amount of Time with the Children.

In In re Marriage of Sobieski, 2013 IL App (2d) 111146, 984 N.E.2d 163, 368 Ill.Dec. 438, the father appealed a trial court's ruling that he pay guideline child support even though he spent portions of 216 days per year with the children. In the parenting agreement, the mother was designated the four children's primary residential parent. The trial court was not persuaded that she should not be entitled to guideline support. The court relied on the case of In re Marriage of Demattia, 302 Ill.App.3d 390, 706 N.E.2d 67, 235 Ill.Dec. 807 (1999), which held that there should not be an automatic reduction in child support because the father spends extended time with his children, who reside primarily with the mother.

Appellate Court Had Jurisdiction To Hear Postjudgment Appeal Filed 30 Days After Trial Court's Initial Ruling.

In a postjudgment action in In re Marriage of Putzler,2013 IL App (2d) 120551, ___ N.E.2d ___, ___ Ill.Dec. ___, the mother filed a petition to increase support and two different petitions for rule to show cause relating to parenting issues. The trial court ruled on the petition to increase support first, but did not issue any S.Ct. Rule 304(a) language in the order. The father waited to file his notice of appeal on the child-support issue after all of the pending postjudgment petitions were ruled on. The appellate court held that it did have jurisdiction to consider the appeal on the support issue even though more than 30 days had passed since the court's ruling because he timely filed his notice of appeal after all pending claims were resolved at the trial level.

Postjudgment Increase in Child Support Upheld.

In In re the Marriage of Putzler,2013 IL App (2d) 120551, ___ N.E.2d ___, ___ Ill.Dec. ___, the appellate court affirmed the trial court's ruling to increase a father's support order from $2,500 to $3,703 per month. The father argued at trial that the mother had failed to demonstrate that expenses for the children had specifically increased. The mother hired a certified public accountant to review the father's tax returns and opine at trial on the father's income. The father failed to offer any contradictory evidence to this opinion. The appellate court reaffirmed existing caselaw, which states regardless of whether the children's needs have increased support obligations may be increased based upon an increase in the supporting parent's ability to pay. Additionally, it is well settled that an increase in the children's needs may be presumed because they have grown older and the cost of living has risen. The appellate court also upheld a fee award to the mother for prevailing on two petitions for rule on parenting issues even though she was employed at a law firm and her boss had agreed to not charge her for her representation.

Illinois Trial Court Has Authority To Hear Subsequent Removal Petitions as Part of Its Inherent Power To Enforce Custody and Visitation Provisions in Its Judgment.

InBanister v. Partridge, 2013 IL App (4th) 120916, 984 N.E.2d 598, 368 Ill.Dec. 652, a parentage action, the mother petitioned for leave to remove the minor child to Kentucky so that she could reside with her new husband who was in the military and residing at Fort Campbell. The trial court made numerous findings under the Eckert factors (see In re Marriage of Eckert, 119 Ill.2d 316, 518 N.E.2d 1041, 116 Ill.Dec. 220 (1988)) and ruled that it was in the child's best interests to reside in Kentucky. Later, the mother filed a petition to remove the child from Kentucky to Maine, where her husband had been assigned to a ROTC training position. The trial court denied her petition and she appealed. On appeal, the mother argued that the trial court lacked statutory authority to hear her petition on the grounds that once leave is given to a parent to remove a child from Illinois, neither the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., or the Illinois Parentage Act, 750 ILCS 40/1, et seq., require the parent seek further leave of court to remove the child again. The court disagreed and held that by its inherent authority to enforce its custody and visitation provisions of its judgment, it had the authority to hear the subsequent removal issue. However, the appellate court reversed the trial court on the removal issue and found that the child's life would be enhanced if the mother was allowed to remove him to Maine.

--
Jon D. McLaughlin

(309) 319-6206 


THIS MESSAGE AND ANY ATTACHMENTS MAY CONTAIN INFORMATION THAT IS HIGHLY CONFIDENTIAL, PRIVILEGED, AND EXEMPT FROM DISCLOSURE. ANY RECIPIENT OTHER THAN THE INTENDED RECIPIENT IS ADVISED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING, OR OTHER USE OF THIS MESSAGE IS STRICTLY PROHIBITED.

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Possible First Refusal Bill that could Affect Bloomington Illinois Visitation Orders

The issue of First-Refusal Rights often come up in Bloomington Illinois divorces. I thought this was interesting:

Family law and visitation
House Bill 2992
(Harms, R-Watseka; Silverstein, D-Chicago) allows a court to consider, consistent with the best interest of the child, whether to award to one or both of the parties the "right of first refusal" to provide child care for the minor child or children during the other parent's normal parenting time. Although the parties may agree to a right of first refusal, if they do not, and the court determines that a right of first refusal is in the best interest of the child, the court shall consider new statutory criteria and make provisions for it consistent with the best interest of the child. It doesn't affect use of a substitute child-care provider for emergency situations and applies only if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time. Passed the House and on second reading in the Senate. 
Want to comment on this bill?

--
Jon D. McLaughlin

(309) 319-6206 


THIS MESSAGE AND ANY ATTACHMENTS MAY CONTAIN INFORMATION THAT IS HIGHLY CONFIDENTIAL, PRIVILEGED, AND EXEMPT FROM DISCLOSURE. ANY RECIPIENT OTHER THAN THE INTENDED RECIPIENT IS ADVISED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING, OR OTHER USE OF THIS MESSAGE IS STRICTLY PROHIBITED.

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Marital Obligations in Bankruptcy Clarified Spouse’s Duty to Pay Opponent’s Attorney Fees May Be Held Non-Dischargeable in Bankruptcy

From Rebecca L. Reinhardt

Attorney fees ordered to be paid by one spouse on behalf of the other are non-dischargeable in Chapter 7 bankruptcy proceedings, a bankruptcy judge in Central Illinois held recently.

In Johnson v. Johnson (In re Johnson), 2012 WL 2835462 (Bankr. C.D.Ill. 2012), the marital settlement agreement obligated the husband to pay the fees to the wife's divorce attorney, but the husband filed for bankruptcy before doing so.  Seeking to avoid the bankruptcy discharge, the wife's attorney argued to the bankruptcy court that the fees, though payable to him, were in the nature of a domestic support obligation and thus non-dischargeable under 11 U.S.C. § 523(a)(5), and the bankruptcy court agreed.

The Bankruptcy Code actually has two provisions relevant to the treatment of marital obligations in bankruptcy: § 523(a)(5), excepting from discharge debts "for a domestic support allegation," and 11 U.S.C. § 523(a)(15), covering debts "to a spouse, former spouse, or child of the debtor and not of the kind described in [§ 523(a)(5)] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order" of a court or governmental unit.

In Johnson, the court said that after the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005 (119 Stat. 186) ("BAPCPA"), the distinction between domestic support obligations (§ 523(a)(5)) and other types of obligations arising out of the ending of a marital relationship (§ 523(a)(15)) is of no practical consequence in a Chapter 7 bankruptcy: neither is dischargeable in Chapter 7.  The court went on to state that it was of no consequence that the obligation was owed to the wife's attorney and not to the wife directly.  While 11 U.S.C. § 101(14A) defines "domestic support obligation" as used in § 523(a)(5) as a debt "owed to or recoverable by" the spouse or child, courts have not interpreted the statute literally, looking instead to the nature of the debt and not to whom the debt is owed. Johnson followed that trend.

Chapter 13 Different:  However, there is a significant distinction between the dischargeability of debts arising from a divorce or separation in a Chapter 7 and a Chapter 13 bankruptcy proceeding.

In Chapter 13, to obtain confirmation, plans must provide for payment in full of claims entitled to priority under 11 U.S.C. § 507.  11 U.S.C. § 1322(a)(2).  "Domestic support obligations" are entitled to such priority.  § 507(a)(1)(A).  Further, "domestic support obligations" are excepted from the general discharge granted to debtors upon completion of Chapter 13 plan payments.  11 U.S.C. §§ 523(a)(5), 1328(a)(2).  If the debtor's obligation is "domestic support," the debtor must propose to pay it in full through a repayment plan, and the obligation will not be discharged unless it is paid in full. 

However, in Chapter 13, debts arising under § 523(a)(15) are dischargeable if the debtor receives a full-compliance discharge.  In re McCreary, 2009 WL 5215587 (Bankr. C.D. Ill. 2009).  Thus, if the obligation is not a support obligation but arises from a divorce or separation agreement or order, the debtor is only required to pay a required pro rata share of the funds available in the Chapter 13 plan.  The creditor spouse is treated as a general unsecured creditor and, upon successful completion of the plan, any remaining balance is discharged.  In re Rabideau, 2011 WL 165179 (Bankr. C.D. Ill. 2011).

Thus, the distinction between support and other obligations is significant in Chapter 13 cases.  "Whether a debt is nondischargeable as being in the nature of alimony, maintenance or support . . . is a matter of federal, not state, law."  In re Marriage of Lytle, 105 Ill.App.3d 1095 (1982).  11 U.S.C. § 101(14A) defines a domestic support obligation as a debt (1) owed to or recoverable by a spouse, former spouse or child; (2) that is in the nature of alimony, maintenance, or support; (3) that is established by a court order; and (4) that has not been assigned to a governmental entity.  State law is used to ascertain the incidents or nature of the debt to determine whether it fits within the federal exception.

Marriage of Lytle.  The label attached and the language of the decree or underlying agreement are not controlling in determining dischargeability; rather, one must look to the substance of the decree or agreement to determine the essential nature of the obligation.  Marriage of Lytle. 

Thus, courts have held that attorney's fees owed to a former spouse, or the former spouse's attorney, in conjunction with or awarded in the context of a support obligation have met the definition of "domestic support obligation".  See Johnson, discussed above; In re Papi, 427 B.R. 457 (Bankr. N.D. Ill. 2010).

Whereas in Chapter 13 debts under § 523(a)(15) are potentially dischargeable, in Chapter 7 debts arising in the course of a divorce or separation are unqualifiedly non-dischargeable.  In re Harn, 2008 WL 130914 (Bankr. C.D. Ill. 2008).  (However, note that §  523(a)(15) was markedly changed by BAPCPA; previously, courts applied a balancing approach to determine whether the debtor could reasonably afford to pay such debts and the resulting harm posed to the creditor spouse in the event of a discharge, and this approach no longer applies.)

Serious Consideration Required:  An individual and his or her attorney involved in settlement of a dissolution action should clearly set forth the intent of the parties and insure that it meets the federal definition for the type of obligation the agreement is attempting to achieve.  Furthermore, the parties should be made aware that particular obligations set forth in the agreement may ultimately be non-dischargeable in a bankruptcy proceeding.  Hold-harmless agreements have been held nondischargeable in Chapter 7 proceedings per § 523(a)(15), as have agreements to pay mortgage obligations.  See In re Walden, 312 B.R. 187 (Bankr. C.D. Ill. 2004).

For debtors with significant marital debt, consideration must be given to the benefit afforded in a Chapter 13 case, when selecting under which chapter to file.  In McCreary, discussed above, the bankruptcy court held that a former husband's filing of a Chapter 13 bankruptcy instead of a Chapter 7 to avoid, among other things, paying the full amount due his former wife under a property settlement was legitimate and not in bad faith.

Call us to schedule a consultation if you have any questions about these issues!

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Jon D. McLaughlin

(309) 319-6206