Melamed v. Melamed

2016 IL App (1st) 141453, 50 N.E.3d 669
CourtAppellate Court of Illinois
DecidedFebruary 16, 2016
Docket1-14-1453
StatusUnpublished
Cited by14 cases

This text of 2016 IL App (1st) 141453 (Melamed v. Melamed) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melamed v. Melamed, 2016 IL App (1st) 141453, 50 N.E.3d 669 (Ill. Ct. App. 2016).

Opinion

2016 IL App (1st) 141453

FIRST DIVISION February 16, 2016

No. 1-14-1453

VLADIMIR MELAMED, ) Appeal from the ) Circuit Court of Petitioner-Appellant, ) Cook County ) v. ) No. 99 D 16853 ) JULIA MELAMED, ) Honorable ) Kathleen G. Kennedy, Respondent-Appellee. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Liu and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 This appeal begins with a "Motion to Increase Child Support" brought by Respondent in

September 2008. In February 2012, the trial court ruled that Respondent had satisfied the

requirements needed to demonstrate a substantial change of circumstances. The court then

proceeded to the issues of the amount of child support and its retroactivity. In June 2012,

Respondent filed a petition to establish a section 503(g) trust. 750 ILCS 5/503(g) (West 2012).

On October 16, 2013, the court issued an order awarding Respondent $5,439.05 per month in

child support, retroactive support in the amount of $340,768.27, and ordering Petitioner to

establish a section 503(g) trust in the amount of $400,000 for the support of his daughter. In the

same order the trial court also ordered Petitioner to pay Respondent's attorney fees incurred from

September 2008 through October 2013. No. 1-14-1453

¶2 On March 21, 2014, the trial court entered an order clarifying various aspects of its

October 16, 2013 order. The court clarified that it was awarding attorney fees to Respondent

pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS

5/508(b) (West 2012). Next, the court clarified the amount Petitioner should pay per month in

child support. Finally, the court resolved the parties' outstanding motions for sanctions.

¶3 Petitioner raises the following issues on appeal: (1) whether the trial court erred in

bifurcating a post trial petition to modify child support; (2) whether the trial court erred in

admitting into evidence documents without proper foundation; (3) whether the trial court's

finding regarding the credibility of witnesses is against the manifest weight of the evidence; (4)

whether the court erred in determining the amount of child support and requiring the

establishment of a section 503(g) trust; and (5) whether the trial court erred in denying

Petitioner's motion for sanctions pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1,

2002) and Illinois Supreme Court Rule 137 (eff. July 1, 2013).

¶4 As set forth herein, Petitioner has waived review of the bifurcation issue, the witness

credibility issue and the denial of his motion for sanctions by failing to raise any arguments in

support of them. We affirm the trial court's order granting Respondent's "Motion to Increase

Child Support." We affirm the establishment of a section 503(g) trust, but modify its terms to

provide for its termination and return of the remainder to Petitioner.

¶5 JURISDICTION

¶6 There was a jurisdictional issue raised during the pendency of this case that we clarify

before proceeding to the merits of the appeal. The trial court entered an order resolving all

outstanding issues on March 21, 2014. A "Notice of Appeal" should have been filed within 30

days of that date or by April 21, 2014. Petitioner failed to do so. Counsel for Petitioner filed a

-2- No. 1-14-1453

motion for leave to file a late notice of appeal pursuant to Illinois Supreme Court Rule 303(d).

(eff. May 1, 2007). The rule requires such a motion be made within 30 days after the expiration

of the first 30 days (here May 20, 2014). Id. Both the motion itself and the docketing statement

indicate the motion was filed on May 22, 2014. However, the affidavit of petitioner's attorney

indicated that he placed the motion in the mailbox on May 20, 2014. We granted the motion on

the basis of a "reasonable excuse" but without determining whether the motion was timely under

the mailbox rule. We invited the parties to address the issue in their brief, neither party did so.

¶7 In Davis v. John Crane Inc., 261 Ill. App. 3d 419, 427 (1994), this court found that when

the notice is mailed, the time of mailing shall be deemed the time of filing. Proof of mailing

shall be made by filing a certificate of mailing. Id. Here, the certificate of mailing

accompanying the Rule 303(d) motion indicated it was mailed on May 20, 2014. Since

Respondent raises no argument in her brief attacking this claim, we find the motion for leave to

file a late appeal was timely filed under the mailbox rule.

¶8 Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6

of the Illinois Constitution, and Illinois Supreme Court Rules 301 and 303. Ill. Const. 1970, art.

VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 1, 2007).

¶9 BACKGROUND

¶ 10 Given the long and tortured procedural history of this case our background recites facts

limited to those relevant on appeal. Respondent-Appellee, Julia Melamed (Respondent), and

Petitioner-Appellant, Vladimir Melamed (Petitioner), were married in July 1992. The parties

sought a petition for dissolution of marriage in 1999 and a judgment was entered in April 2001.

The marital settlement agreement set forth child support for the parties' two children, then 7 and

1 (now 21 and 15). It provided that Petitioner would pay $400 per month in child support

-3- No. 1-14-1453

beginning in May 2001. The current appeal stems from the "Motion to Increase Child Support"

brought by Respondent in September 2008.

¶ 11 After Respondent filed her motion, the parties then engaged in what can only be

described as a contentious discovery process. Several motions to compel and motions for

sanctions were filed by both parties. On July 2, 2010, the trial court conducted a case

management hearing to address the discovery issues. Unfortunately, the trial court's attempts to

move the parties along were unsuccessful and this case continued to be bogged down by the

parties (and their attorneys) continued feuding over discovery. On October 22, 2010, the trial

court, finding the parties' conduct contrary to the best interest of the children, set parameters for

the hearing on Respondent's "Motion to Increase Child Support" and court supervision of

discovery. In the order, the trial court bifurcated the proceedings. The court ordered the parties

to first proceed on the issue of whether there was a substantial change of circumstances as to

Petitioner's ability to pay. Then the parties were to proceed to the issue of a substantial change

of circumstances as to the children's needs. Because the first issue dealt solely with Petitioner,

the court stayed all discovery Petitioner sought from Respondent.

¶ 12 On December 8, the trial court began hearings on whether there had been a substantial

change of circumstances as to Petitioner's ability to pay. The hearings on this issue carried into

February. Unsurprisingly, more motions followed.

¶ 13 Finally, in February 2012, the trial court ruled that Respondent had satisfied the

requirements for a substantial change of circumstances. In its ruling, the trial court found that

the evidence established a substantial change of circumstances as to Petitioner's ability to pay

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Bluebook (online)
2016 IL App (1st) 141453, 50 N.E.3d 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melamed-v-melamed-illappct-2016.