CHILD SUPPORT
In re the Marriage of Heady v. The Dept. of Healthcare and Family Services (intervenor), -- N.E.2d ---, 2010 WL 738258 (Ill. App. 2 Dist.) March 1, 2010.
Ex-Husband, Michael Heady, filed a motion to reduce child support based upon two of the three children having reached the age of majority. The court entered an order reducing support and terminating support on June 1, 2008, upon the youngest child reaching the age of majority. Further, the court entered a judgment for $16,400 in past-due support, payable at $108.59 per week, and paragraph 9 of that order also provided that the Department was barred from engaging in other collection activities so long as Michael was current in his payments on this arrearage. The Department filed an appeal arguing that the placing a restriction on Department collection activities was improper.
The Appellate court looks to section 505(d) of the IMDMA where it states, "Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced." Absent an agreement between the parties proven by clear and unequivocal evidence, or the doctrine of equitable estoppel, a judgment may be enforced. Evidence did not present an unequivocal agreement nor any basis for estopping the Department. The trial court erred in restraining the Department from engaging in enforcement and collection actions. The Appellate Court held that the judgment should be modified by striking paragraph 9 from the order.
DCFS - UNREASONABLE CLOSE CONFINEMENT
Walk and Hammack v. IL Dept. of Children and Family Services, -- N.E.2d ---, 2010 WL 867161 (Ill. App. 4 Dist.) March 9, 2010.
Two brothers, Anthony M., age 9, and Douglas M., age 7, were placed in foster care with Dee Ann Walk, a licensed foster parent. Michael Hammack also resided at the residence. DCFS made findings of child abuse or neglect against Dee and Michael. After an evidentiary hearing, a DCFS administrative law judge found Dee and Michael abused or neglected the two children by forcing the children to remain in a "closely confined area restricting physical movement". The DCFS Director thereafter adopted these findings. Plaintiffs requested to expunge these findings, and their request was denied. Plaintiffs filed a complaint for administrative review of the DCFS decision. The trial court affirmed the decision. Plaintiffs appealed.
Anthony M. and Douglas M. both suffered from serious mental and behavioral problems. The children had caused harm to each other and the property in upwards of $60,000 in damage, including mutilating and killing various farm animals on the property. The Plaintiffs from time to time would put the children into an outside enclosure when they were doing household chores or working with the animals. The enclosure was made of wire fencing, approximately 6 feet tall, and had a top made of the same chain-link fencing. The enclosure's size was not specifically determined, but it was larger than the children's bedroom, and contained a sandbox, toys, and room for the children to run. The Plaintiffs put the children in this enclosure to keep them safe from harm.
The Appellate court reversed and remanded the trial court's decision. The Court held that the enclosure in this particular case did not fall under the DCFS promulgated regulation that details various child-abuse and neglect allegations. Specifically, while this regulation includes "putting a child in a cage" as an example of the unreasonable restriction of a child's mobility, this Court held that putting a child into a cage is not per se a violation of this regulation. The real question is whether the circumstances of the case render the confinement unreasonable. Enclosures of limited movement may fall under this regulation as a closely confined structure, but size alone cannot be the determinative factor. Duration and nature of or reasoning for the confinement must be considered.
In the case at hand, the enclosure was larger than the children's bedroom, contained toys and a sandbox, and as the court noted, had room to run as evidenced by the matted down grass within. Further, the Plaintiffs used this enclosure to protect the children, the children were not in the area for long, extended periods of time, nor was it evidenced that the Plaintiffs were ever too far from the area to hear the children call if the children needed them. Also, DCFS upheld the administrative law judge's finding that the Plaintiff's adequately supervised the children. Therefore the Court held that the confinement was not unreasonable, and therefore reversed the trial court's decision and the agency's decision and remanded as to an issue of attorneys' fees.
INTERVENOR ATTORNEYS' FEES AND COSTS
In re the Marriage of Pal v. Gudgel (intervenor), --- N.E.2d ---, 2010 WL 338821 (Ill. App. 4 Dist.) January 27, 2010.
Within a dissolution proceeding, Husband filed a petition for temporary custody, asking for temporary custody of the children alleging that Wife's boyfriend, Michael Gudgel, who has been convicted of both murder and home invasion, was a danger to the children. Gudgel had not been convicted of murder and home invasion, but had been convicted of manslaughter after hitting his ex-wife on the back of her neck with a baseball bat, and her subsequent death. The court entered a temporary order awarding temporary custody to Wife, but restricting any contact with Gudgel. The court would re-evaluate this restriction after there was an evaluation of Gudgel by the court-appointed evaluator, Dr. French.
Gudgel filed a Petition to Intervene pursuant to 735 ILCS 5/2-408 stating that he had a real interest in the outcome of litigation because the court's order could restrict his ability to interact with Wife's children; also because he was unable to defend himself against Husband's assertions; and further because he would be unable to see the children unless he submitted himself and his medical records for an evaluation. Gudgel also filed a Motion for Sanctions and a Motion to Strike regarding the allegations made in Husband's pleading. The court allowed Gudgel to intervene, but denied the Motion for Sanctions and the Motion to Strike finding that there had been sufficient evidence that he had been convicted of a serious crime.
Dr. French completed his evaluation and recommended that the restriction on contact with the children be lifted immediately. The court thereafter lifted the restrictions.
Gudgel then filed a Motion for Attorneys' Fees and Costs seeking a reimbursement for the fees paid to Dr. French, as well as reasonable attorneys' fees and costs. Gudgel asserted that this motion was filed under the Dissolution Act, although he did not state this within his Motion. Under Supreme Court Rule 137, an intervenor can try to collect attorneys' fees, however, they would not have this right absent some other statutory right. While the Dissolution Act does not expressly forbid attorneys' fees being awarded to an intervenor, the court looked to section 508(b) stating that the language does not limit it to factors for division of property or anything of that situation. The court continued with the question of whether the previously imposed restriction was for an improper purpose or designed to harass, create unnecessary delay or to needlessly increase the cost of litigation. Quoting its previous ruling on the Petition for Temporary Custody, the court had found that Husband's petition raised legitimate concerns. The court denied Gudgel's Petition, assuming that a trial court could even award attorneys' fees to an intervenor under section 508(b). Gudgel renewed his request eight months later; it was again denied.
Gudgel appealed the denial of attorneys' fees. The appellate court held that section 508(a) was intended by the General Assembly to apply to spouses only, and not intervenors to achieve substantial parity in the spouse's access to funds for litigation. Also, section 508(a) clearly refers to only two parties, "opposing parties", specifically, the spouses. Further, section 503(j), clarifies that there are only two parties, the spouses, involved when there is an award of attorneys' fees. The trial court correctly denied Gudgel's Motion for Fees as an intervenor under the Dissolution Act, section 508.
The Appellate Court affirmed the ruling of the trial court.
(concurrence filed)
