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In re Marriage of Hari

February 03, 2004

IN RE: THE MARRIAGE OF LISA ANN SHERFEY HARI, PETITIONER-APPELLANT, AND DAVID ALAN HARI, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Ford County No. 02D1 Honorable Charles H. Frank, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

PUBLISHED

In January 2002, petitioner, Lisa Ann Sherfey Hari, filed separate petitions, seeking (1) to dissolve her marriage to respondent, David Alan Hari, and (2) temporary custody of the parties' two children and child support. Later that month, the trial court granted Lisa temporary custody of the children and ordered David to pay $197 in biweekly child support. In April 2002, the court ordered David (who was then in jail awaiting trial on charges of first degree murder of Lisa's boyfriend and attempted murder of Lisa) to pay temporary child support out of funds that were then being held in David's attorney's trust account.

In January 2003, the trial court entered a judgment dissolving the parties' marriage, and in February 2003, the court entered a written order resolving the remaining issues. In particular, the court (1) granted Lisa custody of the parties' children and (2) reserved the issue of child support. Later that month, Lisa filed a motion to reconsider, arguing, in pertinent part, that the court erred by failing to order that David pay child support out of his non-marital funds that were then deposited in bank accounts. In April 2003, the court denied Lisa's motion, upon determining that it had no discretion to order David to use non-marital funds to secure payment of child support.

Lisa appeals, arguing that the trial court erred by refusing to order that David pay child support out of his non-marital funds. Because we agree with Lisa's argument, we reverse and remand for further proceedings.

I. BACKGROUND

Lisa and David were married in June 1989. During their marriage, they had two children, Zachary (born January 22, 1990) and Kyle (born May 8, 1996). In January 2002, Lisa filed a petition to dissolve the parties' marriage. Later that month, Lisa filed a petition, seeking temporary custody of Zachary and Kyle and child support. Still later in January 2002, the trial court granted Lisa temporary custody of the children and ordered David to pay $197 in biweekly child support, which represented 25% of David's biweekly net income. (The recommended statutory child support amount for two children is 25% of the supporting parent's net income (750 ILCS 5/505(a)(1) (West 2000)).)

Following a hearing, in February 2002, the trial court entered an order clarifying (1) the terms of David's visitation with Zachary and Kyle and (2) that temporary child support commenced on January 26, 2002. Two days later, on February 10, 2002, police arrested David for the first degree murder of Lisa's boyfriend and the attempted murder of Lisa, which took place that same day at the parties' marital home. Later in February 2002, Lisa filed a petition, requesting, in pertinent part, that the court order that temporary child support be paid from funds that David's mother (to whom he had assigned his power of attorney) had withdrawn from David's two accounts at Farmers Merchants National Bank (Farmers Bank).

In April 2002, the trial court ordered that David (1) not dispose of the bank account funds, which were then being held in David's attorney's trust account, and (2) pay $197 in biweekly child support from those funds. Later that month, David filed an accounting, which indicated that (1) he had opened one of his Farmers Bank accounts prior to the parties' June 1989 marriage (in May 1989, the funds in that account totaled $15,528); (2) in February 2002, $17,000 was transferred from Farmers Bank to David's attorney's trust account; (3) the funds were later transferred from the attorney's trust account to a money-market account and a checking account at Roberts State Bank (Roberts Bank); and (4) funds from the Roberts Bank accounts were being used for temporary child support payments and other expenditures, such as David's medications, attorney fees, and life insurance premiums.

In October 2002, Lisa filed a petition, seeking, inter alia, temporary maintenance. The petition alleged that Lisa had been unable to work since David shot her in February 2002.

At the start of the January 2003 hearing on Lisa's dissolution petition, the trial court noted that (1) David had been convicted of first degree murder and attempted murder and sentenced to an aggregate of 73 years in prison; and (2) David, who was then 40 years old, would have to serve at least 69 years of that sentence. The court then remarked that

"obviously[,] based on these facts[,] there would be no child support ordered ***. Unless something should change, a reversal in the conviction, *** there is nothing else I could do at this point."

The parties then agreed that (1) Lisa be granted custody of Zachary and Kyle; and (2) Lisa be awarded the following: (a) the marital home, valued at $70,000, (b) a 2001 Silverado truck valued at $15,000, (c) a 1988 Ford sedan valued at $500, (d) an individual retirement account valued at $6,790, and (e) all of the marital personal property, except a dining room table, matching chairs, and several guns. The parties also stipulated that the Roberts Bank funds (which totaled approximately $7,000) constituted David's non-marital property.

Lisa then presented evidence in support of her petition. Lisa testified that prior to being shot, she operated a day-care business out of the marital home. She usually earned $150 per week. As a result of being shot, Lisa had (1) a bullet permanently lodged in her head, (2) headaches, (3) short-term memory loss, (4) problems with her speech, balance, and vision, and (5) post-traumatic stress. She had been unable to work since the shooting, and her parents had provided financial support for ...


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