Divorce Lawyers New York - Recent Family Law Decisons (33)
RECENT FAMILY LAW DECISIONS (33)
Factors Considered
Trial court abused its discretion when it ruled that it was not required to apply statutory child support guidelines to a petition to modify a father’s child support obligation and that it did not have to make any written findings of fact as to why it was refusing to apply the guidelines.
In accordance with the Illinois Parentage Act of 1984, 750 ILCS 45/1 through 27 (2000), trial courts “shall use the guidelines and standards set forth in 750 ILCS 5/505 (2000) in determining whether to modify an order for child support in accordance with 750 ILCS 5/510 (2000).
Nothing in 755 ILCS 5/504 authorizes or permits the consideration of the fact that ex-wife was overweight and continued to smoke in the consideration of modification of maintenance; the existence of these “factors” was none of the trial court’s business.
Deviation from the guidelines may be had upon the consideration of relevant factors, and the factors to be considered in a modification proceeding are the same factors which may be considered when formulating an original support award.
Fraudulent Misrepresentation
Orders rendered in the context of a dissolution of marriage case may be vacated or modified of procured through fraud; in order to show fraudulent misrepresentation, plaintiff must show (1) a false statement of material fact; (2) the party making the statement knew or believed in to be untrue; (3) the recipient of the statement had a right to rely on it and did so; (4) the statement was made for the purpose of inducing the recipient to act; and (5) injury from the recipient’s reliance on the statement.
Jurisdiction
The trial court had jurisdiction to modify custody support, notwithstanding the argument that the trial court was divested of jurisdiction by the failure to file a petition for modification of child support within 30 days of the final judgment of dissolution, since a trial court has inherent jurisdiction to modify child support in a dissolution proceeding upon a showing of a substantial change in circumstances, and the trial court need not expressly retain jurisdiction.
Lifestyle During Marriage
The trial court had to admit testimony on how the parties lived during their marriage; such testimony would bear directly on the propriety of any extended and increased maintenance.
Movant’s Burden
The burden of demonstrating circumstances warranting modification is on the party seeking the modification.
Oral Modification
Where an oral modification between ex-husband and ex-wife was alleged, although the conduct of the parties was not in total accord with the divorce decree, this did not establish that a modification occurred.
