Chicago Child Support Lawyer

Adopted children’s Iowa state subsidy was properly credited against a father’s Illinois support obligation where the subsidy was meant to supplement the children’s support, the amount of the subsidy was greater than the father’s obligation would have been under Illinois child support guidelines, and the parents’ incomes were approximately equal. Newberry v. Newberry.
 Credit card payments did not meet the parameters of subsection (h), therefore, defendant’s net income should not be reduced by the amount of such payments. In re Benish. 
 Where all of respondent’s arguments pertaining to the award of maintenance and child support were based on a single assumption: that no evidence refuted his assertion, based on his income tax returns, that his net income was not any more than $25,000, it was not an abuse of discretion for the trial court to consider the ample evidence introduced at trial showing respondent’s income was far higher than he alleged. In re Hilkovitch.
 Where the amount of the maintenance and support awarded was approximately 20% of the husband’s receipts for one year, the trial court did not abuse its discretion. In re Dwan. 
 The doctrine of equitable estoppel is an exception to the otherwise rigid rule that child support payments become vested when and as they accrue. Ruster v. Ruster.
 The right to past due installments of child support payments is a vested right which may not be reduced or eliminated by courts. The exception to this rule is when the doctrine of equitable estoppel is applied and then the doctrine may be applied to all or part of the past installments in a n appropriate case. Lewis v. Lewis.

 Given the income of the family, the family’s style of living could not be financed through any means other than the depletion of the family’s savings, and the husband could not help but have noticed the questioned expenditures from a close corporation of which husband was the sole stockholder; thus, the trial court’s finding that the expenditures were made for marital purposes was not an abuse of discretion.  In re Getautas
 The expense of a final payment due upon a note which had financed the purchase of a lot could not be included within those ordinary household expenses the parties agreed the husband should pay during the pendency of litigation.  In re Rapacz
 The circuit court did not err in refusing to consider certain money credits to which husband may have been entitled before entering the instant judgment, namely, reimbursement for one-half the taxes, mortgage payments, and maintenance costs he was required to pay since the divorce, as well as a sum of money the order directed wife to pay him, which was never done, because the foregoing items merely related to setoffs against the amount of her portion of the proceeds of the sale; such matters could be presented and considered after the property had been sold since they did not affect the right to partition the property.  In re Mercer

 Two significant changes were made to the deposition procedure by the amendments effective January 1, 1996.  One change limits discovery depositions to three hours, except by stipulation of all parties or upon order of the court upon a showing of good cause.  Supreme Court Rule 206(d).  Unlike other areas in which there are multiple parties, divorce litigation is usually limited to tow parties, so there is less controversy about dividing up the three hours among counsel.  The three-hour limit is usually too short for the discovery deposition of a party when the case raises issues of economics and custody and/or visitation.  A motion should be brought before the deposition asking that the three-hour limit be extended for those depositions if the parties cannot agree.

The second significant change limits the nature of the objections to be made at a discovery deposition in an attempt to prevent abusive behavior by counsel such as coaching through objections.  Rule 206(c)(3) provides: “Objections at depositions shall be concise, stating the exact legal nature of the objection.”

 The Committee Comments to this amended rule set forth its purpose: “Subparagraph (c)(3) has been added to eliminate speaking objections.”

 If counsel persists in violating this rule after being warned on the record, if counsel engages in other improper tactics, or if the witness is uncooperative, though should be given to suspending the deposition and seeking relief from the court.  Similarly, if the lawyer conducting the deposition strays too far from any permitted area of questioning or otherwise engages in improper conduct, relief should be sought from the court.  The method of seeking relief from the court is found in Rule 206(e), which provides, in relevant part:

At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination…Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.

 The concept of the attorney “certifying” a question no longer exists in the rules and has not for many years.  No special action needs to be taken by the attorney during the deposition to later move the court to compel an answer to a question that was not answered during the deposition.  However, a reasonable discussion between counsel during the deposition regarding the propriety of a question, held pursuant to Supreme Court Rule 201(k), often makes the lawyers consider the soundness of their respective positions and may lead to a compromise during the course of the deposition.

 After the deposition is concluded, the deponent will be given an opportunity to review the transcript and make changes under Supreme Court Rule 207(a).  However, the amendments effective January 1, 1996, severely limit the nature of the changes to be made by the deponent.  Current, the deponent may make only changes based on reporting or transcription errors.  Under prior practice, changes were permitted even when the court reporter accurately reported the testimony but the witness “misspoke” during the deposition.
The changes to Rule 207 have spurred discussion in legal circles.  Among the articles discussing the effects of the rule change is Robert S. Minetz, The Quandary Facing Deponents who Err at Deposition, 88 Ill.B.J. 276 (2000).  In the article, Mr. Minetz discusses the inconsistencies of the rule with other similar facets of trial practice (e.g., a trail witness is free to correct mistakes made while on the stand) and potential trial preparation and presentation problems associated with the rule as it currently stands.

 Whether a discovery deposition is that of a party or of a non-party, a notice of deposition shall be served on all parties to the case.  Supreme Court Rule 206(a).  For a party, a notice of deposition is all that is needed to compel appearance and the production of any documents or tangible things set forth in the notice.  Supreme Court Rule 204(a)(3).  The usual practice is to attach a rider to the notice of deposition setting forth the documents to be produced. 

 For a non-party, appearance can be either voluntary or by subpoena.  The problem with a voluntary appearance is that the lawyer taking the deposition then lacks control over the witness; if the witness does not who up, counsel can be obligated for the expenses of the other parties (Supreme Court Rule 209(b)), while if the witness does show up but either refuses to produce documents or becomes uncooperative in some other way, counsel lacks the authority to have the curt sanction the witness.  The best practice with a cooperative witness is to schedule deposition by agreement at the witness’ convenience and advise the witness that a subpoena is being sent as a formality.

 The service of subpoenas and provision of the witness fee to a non-party are the same as discussed in §6.17 above.

 Under Supreme Court Rule 203, a deposition shall be taken in the county where the deponent resides, is employed, or transacts business in person.  The petitioner can be made to appear for a deposition in the county where the case is pending.  A strict reading of Rule 203 is that the court lacks the authority to order a non-party to appear in any other county than as set forth above.
 A deposition may be recorded by either audiotape or videotape in addition to the traditional method used by court reporters.  Rule 206(a)(2).  While videotaped depositions hold the attention of the tier of fact much better than paper transcripts, it is the experience of the authors that videotape is best reserved for evidence depositions, which are likely to be presented to the tier of fact.

 While the cost of videotaping a deposition should always be taken into consideration, the Supreme Court in Vicencio v. Lincoln-Way Builders, Inc., No. 93687, 2003 Ill.LEXIS 769 (Apr. 17, 2003), ruled that “costs” awarded to the prevailing party may include the expense of videotaping the deposition if that deposition was “necessarily used at trial.”  Both subsections of the test are important to being awarded costs – the deposition must be used at trial and its use depositions are not recoverable as they are not used “at trial.”

 However, a litigant who chooses to videotape a deposition must select a person not “financially interested” to do the recording.  “Financially interested” persons now appear to include all employees of the attorney taking the deposition.  In In re Marriage of Zuberbier, 309 Ill.App.3d 386, 722 N.E.2d 323, 326, 242 Ill.Dec. 834 (2d Dist. 1999), the trial court barred the secretary of the petitioner’s counsel from videotaping the depositions of several witnesses.  The appellate court affirmed, stating, in dicta, that even if the attorney could show that the secretary’s compensation would have been unaffected by the outcome of the case, the appearance of partiality itself would undermine the public’s confidence in the proceedings.
 Under Supreme Court Rule 218, the court is mandated to hold a case management conference within six months after the case is filed.  At that conference, the court can impose limitations on discovery, including the number and duration of depositions.  Rule 218(a)(5)(i).  If the subject has not been previously addressed, the conference is usually a convenient time to present a motion to the court asking that the three-hour time limit under Rule 206(d) be modified for certain witnesses.
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Where the parties agreed that the children would reside with the husband for two months during the summers, and the husband was to make monthly child support payments, the husband was not entitled to an equitable credit because the agreement of the parties provided to the contrary; furthermore, the wife’s expenses for the children did not decline in their temporary absence from her home because she still had expenses such as payments on the mortgage, other loans, maintenance of the house, and summer clothing for the children. Escott v. Escott.
 A claim of equitable estoppel exists whereby one’s own statements or conduct induces a second person to rely, to his or her detriment, on the statements or conduct of the first person; the part asserting a claim of estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts and such reliance should be reasonable. Blisset v. Blisset.
 Forfeiting visitation rights and failing to anticipate unpaid support payments does not constitute the detriment required to establish an equitable estoppel claim, because to allow these reasons to suffice as a detriment, sufficient to establish estoppel, would allow parents to look past the best interests of their children and, by their own agreement, frustrate the intent of child support and visitation orders; such a result is untenable because it would circumvent and undermine a court’s role in the establishment and modification of a child support obligation. Blisset v. Blisset.

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 The trial court did not abuse its discretion in ordering husband to pay wife only 1212% of his net income in child support where it felt that its award would enable the child to maintain the standard of living the child would have enjoyed had the marriage not been dissolved. In re Fleming.
 Since the enactment of the 1985 amendment to the act, courts have refused to enforce the court-approved terms of agreements which set forth the parent’s responsibility for child support only as a percentage of his or her income because the precise reason for the enactment of the 1985 amendment was to avoid confusion in collecting and processing for distribution moneys owing for child support. In re Liss.

 Expenses which would be improper to deduct under subdivision (a)(3) can still play a role in a trial court’s decision regarding departure from statutory guidelines. Gay ex rel. Gay v. Dunlap.
 The trial court did not meet the express requirements of this section where it stated that its main concern was petitioner’s medical needs but did not take into consideration any of the other factors listed within this section. In re DeBow.
 Where the court only heard evidence as to defendant’s reduced income and the fact he had another minor child to support, but heard no evidence regarding of the other factors enumerated in subsection (a) of the Act, the court abused its discretion in failing to consider all relevant factors before reducing support. People v. Hines.
 Wilful failure to pay allowances for child support and maintenance as ordered by the court may be declared contemptuous misconduct and may be sanctioned accordingly. In re Hilkovitch.
 The failure to make the payments directed to be made pursuant to a court order or judgment is prima facie evidence of contempt. In re Hilkovitch.
 A party who fails to pay the allowances ordered ahs the burden of proving that his failure to comply was not willful or contumacious and that he has a valid excuse for his failure to opay. In re Hilkovitch.
 Whether the person charged for failure to pay child support and maintenance is in willful contempt and whether a sanction is to be imposed are factual matters to be determined by the trial court from the evidence presented to it. In re Hilkovitch.
 A reviewing court will not upset the trial court’s finding of willful or contumacious misconduct on the part of the person obligated to make the payment of allowances unless the trial court’s factual conclusions are contrary to the manifest weight of the evidence. In re Hilkovitch.
 For a case discussing contempt for failure to pay alimony, child support and mortgage payments in a separate maintenance action, Mattioda v. Mattioda.
 Where the trial court set retroactive support at 20% of defendant’s net income, but had not yet determined what the amount would be, where there were potential disputes about the materials submitted, the inferences drawn from any material, and where the method of payment was not addressed by the trial court, but was delayed until defendant submitted proof of income, a mere affirmation of the lower court would not constitute final judgment. Department of Pub. Aid.

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