In Re Marriage of Hassiepen
646 N.E.2d 1348, 269 Ill. App. 3d 559, 207 Ill. Dec. 261 (1995)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A party in a child support proceeding cannot introduce tax returns as evidence of income while simultaneously invoking the Fifth Amendment privilege against self-incrimination to avoid cross-examination regarding those returns. The determination of whether a business partnership exists for income allocation is a question of fact based on the parties' intent and the totality of the circumstances, not merely on formal documentation.
Facts:
- In 1984, Cynthia Hassiepen and Kevin Von Behren's marriage was dissolved, with Kevin ordered to pay child support for their three children.
- In 1985, Kevin began living with Brenda and, after being discharged in bankruptcy, started an electrical contracting business, Von Behren Electric.
- Brenda contributed to the new business by using her personal credit cards for supplies, performing all office work, and initially contributing her income as a court reporter.
- Kevin and Brenda opened and used a single joint checking account for all personal and business transactions, withdrawing funds as needed rather than paying themselves a formal salary.
- The business prospered, and Kevin also acquired and developed a commercial property, Von Behren Properties, which generated additional income.
- In November 1991, upon the advice of their accountant, Kevin and Brenda incorporated the business as Von Behren Electric, Inc.
- Cynthia remarried in 1988 and became a homemaker, raising her three children with Kevin as well as a new child with her current husband.
- Kevin did not file tax returns for the years 1989, 1990, and 1991 until May 1993, shortly before the child support hearings.
Procedural Posture:
- In January 1991, Cynthia Hassiepen (petitioner) filed a petition in the trial court to increase child support payments from Kevin Von Behren (respondent).
- In May 1991, Kevin filed a counter-petition to decrease child support.
- The trial court held hearings on the petitions in June and July 1993.
- In October 1993, the trial court issued an order increasing Kevin's child support obligation to $1,500 per month, based on a finding that his business was a partnership with his new wife and attributing only 50% of its income to him.
- Cynthia filed a petition for attorney's fees, and after a hearing in January 1994, the trial court awarded her $1,693.75 of the $35,165.50 requested.
- Cynthia (appellant) appealed the trial court's decisions on both the amount of child support and the award of attorney's fees to the Appellate Court of Illinois.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court abuse its discretion in calculating a parent's net income for child support purposes by relying on tax returns that the parent refuses to be cross-examined on by asserting their Fifth Amendment privilege?
Opinions:
Majority - Justice Steigmann
Yes. A trial court abuses its discretion by relying on a party's tax returns to determine income when that party simultaneously asserts a Fifth Amendment privilege to avoid cross-examination on them. The court affirmed the finding that Kevin and Brenda's business was a partnership, concluding this was not against the manifest weight of the evidence. A partnership is determined by the parties' intent and actions, such as contributing services and credit and sharing profits through a joint account, not just by formal agreements. However, the trial court erred by allowing Kevin to use his tax returns as a sword to prove his income while using the Fifth Amendment as a shield to block inquiry into their validity and late filing. Kevin's 'stonewalling' tactics throughout discovery also prejudiced Cynthia. The court further held that the trial court abused its discretion in the attorney fee award by improperly penalizing Cynthia for her choice to be a homemaker and by failing to hold Kevin accountable for his egregious conduct during discovery, which necessitated much of the legal work.
Analysis:
This decision establishes a critical evidentiary rule in family law, preventing a party from selectively using evidence while blocking scrutiny of that same evidence through a constitutional privilege. It affirms the 'sword and shield' doctrine in the context of financial disclosures, ensuring a fairer discovery and trial process. The case also reinforces the principle that courts will look to the substantive realities of a business arrangement, rather than mere formalities, to allocate income for child support purposes. Finally, it provides strong support for the non-monetary contributions of a homemaker, deeming that choice equivalent to full-time employment and protecting it from being used to deny an award of attorney's fees.
Unlock the full brief for In Re Marriage of Hassiepen