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July 30, 2007

Child Support Factors

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 Among the factors to be considered in determining the amount of child support are the ages of the parties, their condition of health, the property and income of the husband, any separate property and income of the wife, and the station in life of the parties. Fields v. Fields.
 Maintenance, child support, and attorney fees are directly related to a final property disposition since these awards are dependent upon the financial resources of the party, including marital property, for whom the award is made. In re White.
 The trial judge’s deviation from the statutory guidelines in establishing child support constituted error which necessitated reversal. In re Jelinek.
 The trial court abused its discretion by basing the award of child support on the assumption, unsupported by the evidence, that respondent earned more than the record indicated and by requiring respondent to pay a disproportionate portion of the children’s expenses. In re Smith.
 Where the names of the children were mentioned in the complaint but the only relief sought was a divorce, plaintiff could not be required to pay $40 per week to the clerk for the support of his minor children. Weldon v. Weldon.
 Husband’s increase in child support was proper where he admitted that his income had increased and, in fact, the record reflected a substantial increase. In re Mitter.

July 28, 2007

Proper Amounts for Child Support

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 The court properly considered the subsequent employment and earnings of the defendant-mother, which also was a proper consideration in determining a reasonable and proper support amount to be ordered. Edwards v. Edwards.
 An award not supported by the evidence must be set aside. In re Hilkovitch.
 Award of child support for one child was generally a minimum of 20 percent of a supporting net parent’s income and the trial court erred in awarding an amount in excess of that by miscalculating the husband’s income. Sawicki v. Sawicki.
 It was not error for the court to order support in excess of the minimum provided for in the guidelines; it was agreed upon between the parties as allowed by subdivision (a)(2) of this section, and even though it was not required to do so, the trial court did enter findings which concerned the agreement and the basis for the child support amount. In re Steichen.

July 27, 2007

Net Income Calculations for Support Purposes

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The trial court’s overall award of 20% of respondent’s net income was excessive for one four year old boy and, as such, constituted an abuse of discretion. In re Bush.
 A child support award is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion; such abuse occurs only where no reasonable man would take the view adopted by the trial court. Ivanyi v. Granoff.
 Where one spouse was earning approximately 60% more than the other noncustodial spouse, where each was ordered to provide the same amount of child support, and where just prior to the custody change the trial court ordered the spouse with a higher income to pay less per week child support, there was an abuse of discretion. In re Cook.
 Trial court abused its discretion in modifying divorce decree by elimination a provision in the decree allowing the amount of support to increase proportionately with the father’s gross income which was a reasonable attempt to ensure that the support of the children be continually interrelated with the ability of the father to contribute to their support.  Swanson v. Swanson.

July 26, 2007

Contempt Charges to Enforce Child Support

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Contempt is not a proper means of enforcing payment of child support arrearages where the children being supported have reached their majority. Fox v. Fox.
 Equitable estoppel did not bar a judgment for the full amount of the arrearages where the noncustodial parent unilaterally reduce child support payments to custodial parent, but continued to make direct payments to the adult children. In re Bjorklund.
 The trial court erred in relying on an order in determining the amount of arrearage where while entitled an “Agreed Order,” it did not contain the signature of either husband or his attorney. In re Getautas.
 Where there was insufficient testimony concerning the purpose of the disputed checks, the trial court could not possibly determine whether there was an arrearage in child support. Jamal v. Jamal.
 Where the respondent did not reduce his payments in order to relinquish his support of his adult children and did not enjoy the use of the additional money during the interim between the reduction of the support payments and the outcome of the action for arrearages, the trial court could have determined that the respondent acted in good faith and that interest was not appropriate. In re Bjorklund.
 Where the record contained the requisite clear and unequivocal evidence that husband and wife agreed to modify husband’s child support obligations, the terms being reflected in the manner in which husband made the payments, the wife had no basis for claiming child support arrearages. IN re Runge.

July 25, 2007

Preliminary Injunction Cases

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Where defendant acquired confidential information which could be used to undermine plaintiff’s business, and he had called upon several customers with whom he had contact while employed be plaintiff, the was sufficient to establish a threat of irreparable harm for purposes of a preliminary injunction. Donald McElroy, Inc. v. Delaney.
 To justify injunctive relief by enforcement of a restrictive covenant of employment, it was necessary for plaintiff to prove that he would be irreparably damaged in his business if the injunction did not issue. Leavitt Co. v. Plattos.
 A preliminary injunction should not be refused or dissolved merely because the court may not be absolutely certain the plaintiff or counterclaimant has the right he claims. O’Brien v. Matual.
 The general rule seems to be that when a complaint is presented to a court praying for relief which the court has jurisdiction to grant upon a final hearing, and such complaint recites facts which give prima facie a right to such relief, the court may grant a temporary injunction where the effect will be to maintain the status quo of the matters involved. Brown v. City of Sullivan.
 Allowing the issuance of an injunction without requiring sound discretion of the court, a sufficient showing must be made on which to base the discretion. Grossman v. Grossman.
 In the absence of facts showing good cause for dispensing with notice, not temporary injunction should be issued without notice. Schaefer v. Stephens-Adamson Mfg. Co.
 The issuance of the temporary injunction without notice and without bond was obviously improper and the motion to dismiss should have been allowed. East Side Health Dist. v. Village of Caseyville.

July 24, 2007

Child Support Issues

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The evidence adduced by the plaintiff clearly showed that it was the intention of the parties at the time of the entry of the decree that defendant was to pay child support in the amount of $145 per month or 25% of his net income after taxes, whichever was greater. Schwartz v. Schwartz.
 For a case discussing the court’s ability to make a retroactive allowance for child support in divorce or separate maintenance proceeding. Plant v. Plant.
 A judgement awarding child support to be paid as a percentage of net income with fixed dollar limitations was voidable, not void, and was not subject to collateral attack. In re Mitchell.
 Subdivision (a)(5) requires that the final order state the support level solely in dollar amounts. In re Mithcell.
 Increases in support that corresponded with the periodic increases in strike benefits that the father would receive were not speculative and did not violate the dollar amount requirement under subdivision (a)(5). In re Burris.
 Where the circuit court ordered the husband to pay 20 percent of his net income for child support, it erred in failing to state the child support obligation in a specific dollar amount. In re Campbell.
 In awarding child support, the trial court did not erroneously fail to consider assistance the husband received from his parents, the husband’s standard of living, or the husband’s earning potential where the husband has supported his family by farming during the marriage and there was no evidence that he acted in bad faith in continuing to farm, the husband’s father expected repayment for the assistance he provided, and the award was for more than 25 percent of the father’s net income. In re Marriage of Bowlby.
 Trial court properly weighed the relevant factors and did not abuse its discretion in awarding $2,000 per month for child support, which was less than 20% of the payor’s net income. In re Singleteary.
 The trial court did not err in setting child support at $1,500 per month, notwithstanding the father’s claim in his affidavit that he only had a net monthly income of $8,216; the trial court found the father’s affidavit to be untrustworthy, and instead found his annual income to be in excess of $205,000. Janssen ex rel. Janssen v. Turner.

More Injunctive Relief

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An exception to the general rule precluding injunctive relief against arbitration of collective bargaining disputes existed, where maintenance of the status quo was necessary to protect the integrity of the arbitral process itself; the exception applied to a situation in which a public employee union was able to establish that if it were not granted preliminary injunctive relief against planned furloughs and layoffs occasioned by an Illinois budgetary crisis, the financial impact of any later arbitration award would have been so devastating that the State would have had to seek relief from it. AFSCME, Council 31 v. Schwartz.
 Where the evidence showed a legitimate threat to plaintiff’s business interest, irreparable harm may have resulted if this interest was not protected by a preliminary injunction. Gannett Outdoor of Chicago v. Baise.
 To obtain a preliminary injunction the moving party must show (2) he possesses a right which needs protection; (2) he has a substantial likelihood of succeeding on the merits; (3) he has no adequate remedy at law; (4) he will suffer irreparable injury without the injunction; and (5), in the absence of preliminary relief, he will incur a greater injury than would be received by the objector if the relief was granted. Johnson v. Gene’s Supermarket, Inc.
 Circuit court’s preliminary injunction order lacked a legal and factual basis, and the prevailing highway commissioner did not submit a proper request for injunctive relief, as he did not file a complaint, counterclaim, or motion requesting injunctive relief, or establish that he was entitled to the extraordinary remedy by establishing that any of the elements for a preliminary existed. Bd. Of Educ. v. Miller.

July 23, 2007

Parental Support

Filed under: Uncategorized — admin @ 6:32 pm

A depreciation expense is not an expenditure for repayment of debts within the meaning of the statue; however, a court may nevertheless consider depreciation expense, in the appropriate case, in examining the financial resources and needs of the noncustodial parent. In re Boland.
 Since respondent’s depreciation deduction represented a reasonable and necessary expense for the product of income, the circuit court abused its discretion by not allowing it as a deduction. In re Davis.
 In order to avoid an unexplained difference between a supporting parent’s large income and an order for child support payments that reflects a smaller income, trial courts ought to expressly state their findings and calculations. In re carpel.
 The trial court’s discretion will not be interfered with in the absence of an abuse of that discretion or unless a manifest injustice has been done. In re Ingrassia.

July 20, 2007

Child Support Arrearage Calculations

Filed under: Uncategorized — admin @ 7:59 am

With respect to a trail court’s calculation of a father’s child support arrearage the trial court (1) did not err either in finding that the father’s unreported bonuses were to be included in the father’s income for determining arrears of the father’s child support obligations, failing to deduct FICA and dependent health care insurance costs from the father’s bonuses in determining arrears, or deviating from the statutory guidelines in determining the father’s future child support obligations, but (2) did not err in adding the father’s tax refunds back into his bonuses for purposes of determining the arrears. Therefore, the appellate court modified the amount of the father’s arrears. Ackerley v. Ackerley.
 Neither estoppel nor laches barred a parent from petitioning the court for back child support from her husband, where the husband had agreed to forbear visitation in return for canceling support arrearages. Blisset v. Blisset.
 A minor child, by his grandmother as next friend, could not compel his father to pay him arrearages in child support. Kelleher v. Kelleher.
 Insofar as the question of payment for a child taken from the jurisdiction without permission of the court was concerned, residence in another state was not to be considered as to past-due support payments. Voss v. Voss.
 The court may not cancel or deny past due child support payments granted pursuant to a decree of divorce, because past due installments of support money are a vested right and are not subject to modification either as to amount or time of payment. Baldwin v. Baldwin.

July 19, 2007

Temporary Restraining Orders

Filed under: Uncategorized — admin @ 8:01 am

A temporary restraining order issued with notice and a preliminary injunction issued with notice, neither of limited duration, are the same type of relief, and require a showing of the likelihood of ultimate success on the merits of the case. Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B.
 Where the motion submitted by plaintiff indicated that he only sought monies allegedly due and owing him from the defendants pursuant to the employment agreement, then plaintiff did not make a sufficient showing to entitle him to a temporary injunctive relief. Kaplan v. Kaplan.
 Where the injury plaintiff complained of, which was a breach of the employment contract, was capable of being measured and corrected by an award of money damages alone, then plaintiff was not entitled to injunctive relief. Kaplan v. Kaplan.
 The fact that plaintiff did not verify or entity involved must have a present substantial interest, as opposed to a mere expectancy or future contingency, in the controverted matter such that the legal entanglement cannot be resolved without either (1) affecting that interest or (2) leaving the interest of those who are before the court in an embarrassing or inequitable position. Stavros v. Karkomi.
 An injunction is an extraordinary remedy; one without notice is considered most drastic and should be granted only under extreme circumstances. Streamwood Home Bldrs., Inc. v. Brolin.
 It is the general rule that an injunction should not be granted without notice and bond unless it clearly appears from the complaint that the plaintiffs bring themselves within some established exception which expressly prohibits the issuing of such injunctions without notice to the defendant and without bond. Brown v. City of Sullivan.

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