Category Archives: Case law

New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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Divorce Case Law-Are sick days marital property?

In re Marriage of Abrell, Ill, No.107755 (per Thomas) (February 4, 2010)
Facts:
During the course of his marriage, Appellee accrued 115 sick days and 42 vacation days through his employment, which were the subject of a potential division of property in an action for dissolution of marriage. The appellate court held the trial court erred in treating the accrued sick and vacation days as marital property, assigning a value to them, and including them in the marital estate. Appellant argued the appellate court’s decision reversed a 20-year practice in the courts of treating accrued vacation time and sick days as marital property subject to distribution.

Question:
As a question of law, are accrued vacation days and sick days marital property subject to distribution in an action for dissolution of marriage?
Holding:
No. Although Appellee’s accumulation of vacation and sick days occurred during his marriage to Appellant, the accumulation of those days had only a future value that was indeterminate and speculative; thus, the days were not marital property. Affirmed.
Reasoning:

Following Akers v. Akers, 729 N.E. 2d 1029 (Ind. App. 2000), the court found no present right to be paid for sick days other than by becoming ill. The court reasoned that Appellee’s accumulated, unused sick days had no present value and had only a future value that was indeterminate and speculative  and, thus, were not capable of division as a marital asset. Following the reasoning in Thomasian v. Thomasian, 556 A.2d 675 (1989), the court found the entitlement to vacation and sick days is not the same as property rights in pension or retirement benefits, which are forms of deferred compensation. Because vacation and sick days replace wages on days when the worker does not work, they are only an alternate form of wages. They may be, and often are, dissipated when the employee takes sick or vacation time to which he or she is entitled. Underscoring the speculative nature of sick and vacation days as property, the court noted the possibility that Appellee’s employer could change its policy on the right to receive compensation for accrued sick and vacation days by limiting or eliminating the right entirely.

The dissent argued accrued vacation days are Appellee’s property because they are a debt due to him as part of the compensation he had earned for work already performed. If the compensation was earned during the marriage, it is marital property. Although this particular asset is not as liquid as money in the bank or stocks in a portfolio, the lack of liquidity does not mean the asset is not property.

Further, under the Illinois Wage Payment and Collection Act, (Wage Act) 820 ILCS 115/1 et seq.(West 2008), once days are earned, the employer is obligated either to grant the employee the vacation time with pay or to pay the employee for the accrued days upon termination of employment. No employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation from employment. Furthermore, although the Wage Act does not protect sick days, sick days may also constitute the employee’s property. The mere fact they are difficult to value does not render them nonproperty; they are a form of deferred compensation that appellee had the right to receive either during his remaining years of employment or upon termination of employment. Appellee acquired the sick and vacation days while he was married to Appellant; therefore, they are marital property. 750 ILCS 5/503a (West 2004). The dissent would reverse the appellate court and affirm the circuit court’s judgment.

Commentary:

Intellectually, I probably agree more with the dissent here. Not unlike unvested stock options that are marital property (at least in part), these benefits have value and should be included as property–despite the difficulties valuing them. Countless marital assets are difficult to value, yet remain part of the marital estate. However, as a practitioner, this decision takes one more issue off the table—which is a good thing. I just can’t imagine trying to quantify sick days on a marital balance sheet. SNP

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Divorce Case Law-Allocation of employment benefits

Skelly v. Skelly, Mich. Ct. App., No. 287127 (per curiam)

Facts:

The trial court distributed a portion of Appellant’s retention bonus, paid before and after the divorce judgment, and a portion of all of Appellant’s future bonuses to Appellee. Appellant’s income included a first installment of a retention bonus from his employer. If Appellant remained employed by the employer until a specified date, which fell after the divorce judgment, he would receive the second and third installments of his retention bonus.  If, however, Appellant did not remain employed at the employer until the specified date, Appellant would have to repay all retention bonus monies. The trial court ordered the first two installment payments be divided equally between the parties and the third, which would be considered separate property, as it was paid after the divorce decree, would be divided so that Appellee would receive forty percent. Further, the trial court granted a forty-percent share of Appellant’s future bonuses to Appellee.

Question:

Did the trial court err in determining the first two payments of the Appellant’s retention bonus were marital property; the third payment was separate property subject to invasion; and in granting Appellee forty percent of any future bonuses Appellant may earn?

Holding:

Yes. Neither the retention bonus payments nor future bonuses were earned during the marriage and, therefore, should not have been included in the marital estate; and the bonus payment made after the judgment of divorce was not separate property subject to invasion. Reversed.

Reasoning:

The retention bonus was intended to entice the Appellant to remain at the company until a specified date, and if he left the company before that date, any advance payments of the bonus he received would have had to be repaid. Appellant did not actually earn the retention bonus until the date set in the retention agreement, which occurred after the judgment of divorce was entered. Therefore, even though part of the bonus had been advanced to him during the marriage, the retention bonus was not earned during the marriage; thus no portion of the retention bonus was marital property.  Likewise, the third installment should not have been considered separate property subject to invasion because Appellant had not yet earned it at the time of the judgment of divorce. Because future bonuses paid to Appellant are speculative and would not have been earned during the marriage, they were unrelated to the marriage, should not have been considered part of the marital estate and should not have been awarded in part to the Appellee. 

Commentary:

This case, while not an Illinois decision, illustrates a problem frequently confronting trial courts—how to allocate “golden handcuff” type bonus plans. I agree that the future bonuses are probably not marital property under a traditional definition (earned after the marriage) but doesn’t the marital estate get some credit for the fact that a portion of the value derives from past performance?  Frankly an easy non-offensive solution would be to give the other spouse a piece of the future bonus as additional “maintenance” rather than property.

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Case Law-Order of Protection

In re Marriage of Holtorf, Ill. App. Ct. 2nd Dist., No. 2–09–0872 (per McLaren)

Facts:
Appellant was arrested for the third time for retail theft, while she had her two minor children with her. During the previous arrests, Appellant had either left her children unattended in a running car or had at least one of the children with her in a store. After receiving an order of protection, Appellee filed a petition for dissolution of marriage with an amended petition for an order of protection and a motion to consolidate the initial order of protection with the dissolution, which the court granted. The court then entered a plenary order of protection. Appellant argues the trial court erred as a matter of law in entering both the emergency and plenary orders of protection solely on the basis of a finding of child neglect because the trial court could issue an order of protection upon a finding of neglect only if the petitioner were a high-risk adult with disabilities.
Question:
Did the trial court err as a matter of law by entering emergency and plenary orders of protection based on its determination of a finding of child neglect rather than abuse under 750 ILCS 60/201(a)(ii),(b)(ii) and then by denying a motion to vacate the orders of protection?
Holding:
Although the trial court erred in ruling that neglect was a proper basis for the issuance of the emergency and plenary order of protection, it did not commit reversible error in issuing the orders of protection or in denying the motion to vacate the orders of protection. Affirmed.
Reasoning:
The trial court’s issuance of the plenary order of protection based on a finding of neglect was improper because the only mention of “neglect” in the Illinois Domestic Violence Act of 1986 (Act) is in the context of high-risk adults with disabilities. See 750 ILCS 60/201(a)(ii), (b)(ii)(West 2008). However, in affirming the trial court’s judgment, the appellate court stated it was not limiting itself to the trial court’s rationale or the parties’ arguments. The appellate court found the allegations against Appellant, if proved, rose to the level of physical abuse as defined in section 103(14)(iii) of the Act as “knowing or reckless conduct which creates an immediate risk of physical harm.” 750 ILCS 60/103(14)(iii) (West 2008). The court noted that the potential for immediate physical harm, in either bringing the children into the store, or leaving them in a running car while committing a theft, is “manifest.”

Commentary: This is a strained analysis intended to get to the desired result. The court specifically found it was not limited to the rationale of the trial court or the parties’ arguments. True–but it seems a bit too proactive to me. The appellant was right but lost anyway.

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