ILLINOIS STATE BAR ASSOCIATION AUGUST 2019 VOL 32 NO. 1 Child Law The newsletter of the Illinois State Bar Association’s Section on Child Law A Note From the Editor A Note From the Editor 1 BY AMANDA G. HIGHLANDER ISBA Child Law Section Council to Present Child Welcome to the first issue of the 2019- issue who made this publication possible. Representative/GAL 2020 Child Law Section Council newsletter! Thank you! Continuing Legal Education This promises to be a great year for, not Program only the committee, but its newsletter. I All the best, 1 would like to give a special thank you to the Amanda G. Highlandern authors who contributed their work to this Preserving Immunity for GALs in Juvenile Abuse Cases ISBA Child Law Section 2 Two New Bills Affecting Immigrant Children Signed Council to Present Child Into Law Representative/GAL 3 Child Inclusive Mediation Continuing Legal Education 4 How Applicable Is the Decision of In re Marriage Program of Salvatore? Only Time and Future Appeals Will Tell 6 BY JOSETTE ALLEN An Overview of the Illinois’ The Child Law Section Council that set the agenda, secured speakers and Gestational Surrogacy Act of the ISBA is very pleased to offer a coordinated with the Section Council as 8 two-day, 10-plus hour continuing legal a whole to ensure that the CLE will be education (CLE) course for family law and informative, entertaining, relevant and domestic relations guardian ad litem/child useful. Robert Ackley, a longtime council A Conversation With Mari representatives, to take place in Springfield member, CLE co-coordinator, and member Christopherson, Executive at the Administrative Office of the Illinois of the planning subcommittee, said, “We’re Director of Illinois CASA Courts (AIOC) on October 16 and 17, expecting a great program with excellent 9 2019. presenters—the participants will be well- The Section Council, which has been informed and well-armed to discharge their planning and coordinating the CLE since duties as GALs and child representatives.” last year, has had a dedicated subcommittee Continued on next page Child Law ▼ AUGUST 2019 / VOL 32 / NO. 1 How Applicable Is the Decision of In re Marriage of Salvatore? Only Time and Future Appeals Will Tell BY AMY SILBERSTEIN Who else thought the following the parties’ divorce, Brenda was unemployed, and income earned varied, according to scenario would be a “substantial change in although it was undisputed that she had Brenda’s financial affidavit, she had earned circumstances” to allow you to modify your previously performed office work for dental approximately $3,451.00 per month in 2017. child support obligation? You are paying child offices and worked as a registered nurse at Brenda’s total gross income for the 2017 tax support under the old percentage-based child various times during the parties’ marriage. year was approximately $23,500.00, which support law and your former spouse, who was Daniel was a dentist with his own practice, included time Brenda had taken off for a unemployed at the time of your divorce, gets and according to the parties’ settlement maternity leave that year. a full-time job and goes from earning zero agreement, Daniel earned approximately According to the appellate opinion, dollars to approximately $3,451 per month. $25,312 per month from his thriving dental during the trial court hearing, Daniel Shouldn’t this new full-time income earned practice. His total gross earnings exceeded testified that his individual 2017 tax return by your former spouse be a considered $400,000.00 annually. Pursuant to the Illinois reflected a gross income that was much substantial change in circumstances to allow child support law in place at the time of lower than what he had earned for prior you to recalculate your child support from the parties’ divorce, Daniel agreed to pay to years. However, Daniel also acknowledged the old percentage-based formula to the new Brenda 32 percent of his net income, which that there were discrepancies between the income shares under the July 1, 2017 law? was the amount of $8,100.00 per month gross receipts from his business checking If you are one of those people who, for child support. It is also worth noting and those shown on his business’s tax like me, thought that this scenario that both parties waived maintenance and returns, and also that Daniel had deposited should constitute a substantial change in Brenda remarried shortly after the entry of other large sums into his personal checking circumstances, according to the Illinois the judgement of dissolution. Along with account, which were not reflected in his gross Appellate Court for the Second District, remarrying shortly after the entry of the income. Since Daniel’s tax returns did not we are all wrong. On March 8, 2019, the parties’ Judgment, Brenda also became accurately reflect Daniel’s true income, which Illinois Appellate Court for the Second employed and began working as a triage should have been higher, the trial court did District determined the answer to this to nurse, earning an income much greater than not grant Daniel’s argument that his income be a big NO, that the full-time employment her income at the time of the divorce, which had dropped and that he had experienced of your formerly unemployed ex-spouse was zero dollars. a substantial change in circumstances. The does not constitute a substantial change trial court also rejected Daniel’s argument in circumstances necessary to modify Post-Decree Proceedings and that Brenda’s new income constituted a child support in its opinion issued for In Analysis substantial change in circumstances. re Marriage of Salvatore, 2019 IL App. On November 1, 2017, just a few months (2d) 180425. Instead, the appellate court after the new Illinois child support law for Appellate Court Analysis determined that “there is nothing to warrant income shares went into effect, Daniel filed When looking to whether the trial a modification of Daniel’s child support a petition to modify child support. In his court made the right decision and correctly obligation because the parties contemplated initial filing, Daniel argued only that his interpreted the martial settlement agreement, their present circumstances when they income had decreased and its decrease was a the appellate court used the de novo standard 2 entered the JPA and MSA.”1 substantial change in circumstances. Daniel of review, as a question of law. later was granted leave to amend his petition Daniel’s argument that Brenda’s income Overview of the Facts to add a second allegation that Brenda’s new was a substantial change in circumstances When Brenda and Daniel Salvatore were employment and income was a substantial was denied because the court ultimately divorced on August 26, 2015, they had three change in circumstances to warrant the child determined that the parties’ Judgment for minor children and Brenda Salvatore had the support modification. Dissolution of Marriage, which incorporated majority of the parenting time. At the time of Although both Brenda’s hours worked the parties’ Marital Settlement Agreement 6 (“MSA”) and Joint Parenting Agreement guidelines based on “the financial resources if the court had instead determined that the (“JPA”), did not contemplate that Brenda and needs of the custodial parent,” due to previously unemployed former spouse’s new would remain unemployed as long as she the parties’ specific circumstances, it would income did constitute a substantial change was receiving child support. In fact, the have found an abuse of discretion by the trial in circumstances to require a recalculation trial court actually found that there was court and Daniel’s child support obligation of child support. Salvatore can also serve as a language to support the contrary, including would not have been modified, even if reminder to us practitioners to the way that language regarding health insurance that Brenda’s income could have been properly our settlement agreements will be interpreted indicated both parties’ employers and both considered.7 in post-decree litigation, and a lesson to be parties’ incomes. Although Daniel’s counsel very intentional with the language we choose argued that this reciprocal language was a Closing Thoughts to include within the agreements. “contingency provision that should not be Maybe I am just speaking for myself, Only future appeals on the same topic considered in determining the parties’ intent but Salvatore is one of the case opinions will provide more clarity as to whether with respect to child support,” earlier Illinois we have all been waiting for since July 1, the second district came to the “right” case law had already established otherwise.3 2017. Although the statute is very clear conclusion in deciding not to consider “A marital settlement agreement is construed that the passage of the new July 1, 2017 Brenda’s new full-time income as a basis to in the manner of any other contract, and statute itself was not a substantial change in recalculate child support. I expect that other the court must ascertain the parties’ intent circumstances to constitute a modification districts may not immediately defer to the from the language of the agreement.”4 The in child support, the truth is that since the precedent set by Salvatore, but only time, and appellate court further determined that “if passage of the July 1, 2017 income-shares future appeals, will tell. n the health insurance provision in the MSA statute, many child support obligors have were the only provision that contemplated been going to court to attempt to modify Brenda’s future employment, then we might (i.e., reduce) their original pre-July 2017 5 child support obligation, even when there 1.