Wednesday, May 22, 2013

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.


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Jon D. McLaughlin
(309) 319-6206 


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