In re MARRIAGE OF TERRY FRANCES ACKERLEY, Petitioner-Appellee, and ROBERT ALAN ACKERLEY, Respondent-Appellant. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Kane County. No. 92--D--403 Honorable |
JUSTICE GROMETER delivered the opinion of the court:
Respondent, Robert Alan Ackerley, appeals a series of orders entered by thecircuit court of Kane County arising out of litigation where petitioner, TerryFrances Ackerley, sought, inter alia, the enforcement of various provisions ofthe parties' marital settlement agreement. Relevant to the instant appeal, thetrial court (1) ordered respondent to pay a child-support arrearage in the amountof $90,975.41; (2) set respondent's current child-support obligation at $3,000per month; (3) found respondent in contempt for failing to comply with aprovision of the marital settlement agreement; (4) awarded petitioner $2,300 forattorney fees incurred while seeking the enforcement of the agreement; and (5)denied respondent's request to stay the enforcement of the judgment for thechild-support arrearage. For the reasons that follow, we dismiss this appeal inpart and otherwise affirm as modified.
I. BACKGROUND
On March 30, 1992, the circuit court entered a judgment dissolving themarriage between petitioner and respondent. This order incorporated a writtenmarital settlement agreement. By the terms of the agreement, the parties wereawarded joint custody of their son and daughter, and the children were to residewith petitioner. At the time of the dissolution, respondent was employed by theKrughoff Company (Krughoff) and earned a base annual salary of $62,000 plusbonuses. The agreement provided that respondent would pay a base amount of childsupport of $250 per week and additional child support equal to 25% of any "netbonus as defined by statute" received by him from his employer. It alsocontained the following provision: "For verification purposes, father shallprovide mother with copies of W-2 forms or other tax related statementsindicating the bonus he has received on or before January 31st of every calendaryear for the preceding calendar year." Respondent remained current on his weeklychild-support payments, which increased to $420 in July 2000. He also paidpetitioner a portion of his bonus each January through the year 2000.
In 1998, respondent became president of Krughoff. A written employmentagreement was executed in April of that year and was periodically updated. Theagreement provided for a base salary of $120,000 per year and an additionalpayment of $7,500 quarterly if Krughoff achieved at least that much profit duringthe quarter. Further, respondent was to receive year-end bonuses if certainprofit levels were attained. The agreement also provided that respondent wouldlend a portion of his bonus back to the company. In 1998, the agreementspecified a 25% loan. In 1999, this figure was reduced to 15%. Krughoff paidrespondent 7% interest on these loans, which were memorialized by a series ofnotes. Krughoff was scheduled to start repaying these loans on December 31,2002. Respondent's income at the time of the trial was $3,211.34 per week orapproximately $167,000 per year.
Each January from 1994 to 2000, respondent provided petitioner with awritten explanation of how the amount of child support due on his bonuses wascalculated. Respondent did not provide petitioner with W-2 forms or othersimilar documents generated for reporting income to the taxing authorities. Thedocuments that were provided were apparently generated by someone at Krughoff. Except for the document explaining the 1994 bonus, which is handwritten, theywere produced on paper bearing Krughoff's letterhead. None of them showrespondent's total income for the year. They do show the total bonus as well asdeductions for state and federal income tax, social security tax (FICA), anddependent health insurance.
In addition to the bonuses disclosed in the January statements, respondentreceived bonuses in June 1999 and January 2000 that he did not disclose. In June1999, respondent received a bonus in the amount of $58,870. He testified thathe received this bonus in June because of an accounting error that was discoveredwhen the company's records were reviewed by an outside auditor who determinedthat the bonus should have been paid to him previously. Respondent testifiedthat he asked a friend, who was an attorney, what he should do regarding thisbonus and the friend told him he "shouldn't worry about it." In January 2000,respondent received two bonuses. The first was in the amount of $235,400 and wasdisclosed to petitioner. Respondent paid child support on this bonus. Thesecond, in the amount of $145,655, was not disclosed to petitioner, and no childsupport was paid based on this bonus. Respondent explained that, on the adviceof an individual who runs a concrete company, he came to believe that he wasentitled to deduct sums that he lent to the company pursuant to his employmentagreement from his bonuses for the purpose of calculating child support. Accordingly, he unilaterally deducted $145,000 from his 2000 bonus, as he had notdeducted these sums for previous years. Respondent also acknowledged that heonce asked that his weekly paycheck be increased instead of waiting to receivemoney due him in his yearly bonus and that on one occasion Roy Krughoff, thecompany's chief executive officer, increased his weekly salary so thatrespondent would not have to wait for his bonus.
The trial court found respondent in contempt, ordered that he pay backchild support due on his bonuses as well as $2,300 for petitioner's attorneyfees, terminated the bonus child-support system under which the parties had beenoperating, and fixed monthly child support at $3,000. The trial court foundrespondent in indirect civil contempt for failing to provide petitioner with hisW-2 forms or other tax-related documents. The trial court reasoned that theplain language of the marital settlement contemplated that respondent wouldprovide petitioner with a document that was "categorically equivalent to a W-2statement" as opposed to the self-produced summaries that respondent hadprovided. The court also found that respondent bore an affirmative obligationto provide such documents, regardless of any action or inaction by petitioner,since the marital settlement agreement stated respondent "shall" provide them. The court observed that "shall" is a mandatory term. The court foundrespondent's failure to tender these documents to be "willful and contemptuous." Specifically, the court found that respondent was trying to create the appearanceof complying with the agreement when, in fact, he was intentionally secretinginformation from petitioner.
The trial court then found that respondent was not entitled to deduct fromhis bonuses sums loaned back to Krughoff pursuant to his employment agreement. The court stated that it viewed these loans as something "in the nature of somekind of a tax deferred interest bearing account." The court then calculated theamounts due on the bonuses respondent received from 1994 through 1999. The trialcourt deducted federal income taxes, state income taxes, and Medicare taxes fromthe bonuses before calculating the amount due. It did not deduct FICA orexpenditures for dependent health insurance. The trial court also added incometax refunds back into the bonuses. The trial court adjusted the tax refunds bydeducting amounts attributable to respondent's second wife.
After calculating the arrearage for the disclosed bonuses for the years1994 to 1999, the trial court awarded petitioner $27,032.50 for the two bonusesthat were not disclosed. Next, the trial court considered what it termed "excessbonuses." The court noted that for the years 1998 to 2000, approximately$145,000 was not accounted for in either respondent's base pay or bonuses; thisamount the court referred to as "excess bonus." Accordingly, the court foundthat this too was bonus money, and it awarded petitioner $35,527.71 based on thissum. Ultimately, the trial court determined that respondent owed a total of$90,975.41 in back child support.
The trial court next addressed the issue of current child support. Thetrial court terminated respondent's obligation to pay a percentage of his bonusesas support and instead calculated his monthly obligation based on his totalincome. The court determined that, if it were to follow the statutory guideline,support would be set at $5,510 per month. However, the court found that fixingsupport at this level would result in a windfall to the children. Accordingly,the court deviated downward from the statutory guideline and set support at$3,000 per month.
Finally, the trial court ordered that respondent contribute $2,300 towardpetitioner's attorney fees. The court stated that it was awarding fees pursuantto sections 503(j) and 508(b) of the Illinois Marriage and Dissolution ofMarriage Act (Act) (750 ILCS 5/503(j), 508(b) (West 2000)). In making thisaward, the trial court stated that it had considered the relevant factors setforth in these sections.
Respondent then moved to stay the enforcement of the court's order andsought to present an appeal bond. The trial court denied respondent's request. The trial court held that section 413(a) of the Act (750 ILCS 5/413(a) (West2000)) precluded staying the enforcement of an order directing the payment ofchild support pending an appeal.
II. ANALYSIS
On appeal, respondent raises five primary issues. First, he contends thatthe trial court incorrectly calculated the child-support arrearage. Second, hecomplains that the trial court erred in fixing child support at $3,000 per month. Third, he asserts that the trial court erred by finding him in contempt. Fourth,he contends that the trial court's award of attorney fees was erroneous. Fifth,he argues that the enforcement of the trial court's order should have been stayedpending appeal. We will address these issues seriatim.
A. The Child-Support Arrearage
Respondent raises two basic complaints regarding the trial court'scalculation of the child-support arrearage. He contends that the trial court didnot give him credit for every deduction to which he was entitled in determininghis net bonuses for the purpose of calculating support. He also takes issue withthe trial court's math. The parties' marital settlement agreement provided thatrespondent was obligated to pay child support in "a sum representing twenty-five(25%) of his net bonus as defined by statute." The relevant statutory provision,section 505(a)(3) of the Act, defines "net income" as follows:
"(3) 'Net income' is defined as the total of all income from allsources, minus the following deductions:
(a) Federal income tax (properly calculated withholding orestimated payments);
(b) State income tax (properly calculated withholding orestimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or asa condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurancepremiums;
(g) Prior obligations of support or maintenance actually paidpursuant to a court order;
(h) Expenditures for repayment of debts that representreasonable and necessary expenses for the production of income ***."750 ILCS 5/505(a)(3) (West 2000).
The determination of the amount of a child-support arrearage is a factual issue;therefore, we will disturb the decision of the trial court only if the decisionis contrary to the manifest weight of the evidence. In re Marriage ofBelluomini, 104 Ill. App. 3d 301, 308 (1982).
The trial court deducted only federal and state income tax and Medicarefrom respondent's bonuses in establishing the net bonuses that would, in turn,serve as the basis for calculating child support due on the bonuses. Respondentcontends that the trial court should have also deducted from his bonuses FICA,dependent health insurance expenses, and the loans he made to Krughoff pursuantto his employment agreement. In related arguments, respondent maintains that thetrial court should not have added back into his bonuses amounts received asincome tax refunds or considered the effect of respondent's second wife's incomeon his taxes without a proper evidentiary basis. Respondent also criticizes thetrial court for characterizing some of his income as "excess bonuses."
We first conclude that the trial court did not err by failing to deductFICA and dependent health care insurance costs from respondent's bonuses. Unlikeincome tax, which is based on a percentage of all income, these expenditures arefixed. In re Marriage of Olson, 223 Ill. App. 3d 636, 652 (1992) (Withholdingfor FICA ceases after a certain income level is achieved. "Bimonthly payrollreceipts for periods less than a year for a noncustodial parent withabove-average income may not reflect true income because such partial records donot reflect increased income on reaching maximum FICA withholding"). Hence, inthe present case, they can be either deducted from respondent's bonuses or addedto respondent's base pay for calculating the base child-support amount. The merefortuity that respondent received his bonuses early in January, which oftenterminated his FICA obligation for the balance of the year and allowed him tocollect his base salary free of this tax, should not work to disadvantagepetitioner and the children. Moreover, we note that respondent's $250-per-weekchild-support obligation would not have approached the statutory guideline forthe support of two children if these sums were not attributed to base salary asrespondent's income level increased. In short, we find no error in attributingdeductions for dependent health insurance and FICA taxes to respondent's basesalary instead of to his bonuses.
We further find no error in the trial court's refusal to deduct whatrespondent terms "mandatory loans" from his bonuses. These loans were sumswithheld from respondent's yearly bonuses as set forth in respondent's writtenemployment agreement. The loans were evinced by three notes, which reflected theterms set forth in the employment agreement. Krughoff was scheduled to beginrepaying two of the loans on December 31, 2002, and one on January 1, 2003. Theformer two were to be fully repaid by December 31, 2004, and the latter byJanuary 1, 2005. Payments of approximately one-third of the value of the loanswere to occur on a yearly basis. Respondent received 7% interest per annum.
Respondent first attempts to analogize these loans to "[e]xpenditures forrepayment of debts that represent reasonable and necessary expenses for theproduction of income." 750 ILCS 5/505(a)(3)(h) (West 2000). He next attemptsto analogize these loans to "[m]andatory retirement contributions required ***as a condition of employment." 750 ILCS 5/505(a)(3)(d) (West 2000). We findboth attempts unpersuasive. The loans do not represent repayment of a debt;rather, they represent sums that respondent will ultimately receive at a laterdate. He has, in essence, paid nothing. Expenditures for the production ofincome are not deductible if they do not represent a repayment of a debt. Gayv. Dunlap, 279 Ill. App. 3d 140, 145 (1996). Nor do these loans appear to haveanything to do with retirement. By the terms of the notes, respondent will beginreceiving payments on all three in December 2002 and January 2003 (which is,perhaps coincidentally, about nine months after his youngest child turns 18)regardless of whether he retires at that time. Thus, the loans are notencompassed by any of the categories of deductions set forth in section 505(a)(3)of the Act (750 ILCS 5/505(a)(3) (West 2000)). They appear to us to be mostanalogous to some sort of short-term deferred compensation agreement. It hasbeen held that "deferred compensation falls under none of the allowabledeductions specified under section 505(a)(3)." Posey v. Tate, 275 Ill. App. 3d822, 826 (1995). Accordingly, the trial court did not err in refusing to deductthese loans from respondent's bonuses.
We agree with respondent that it was unnecessary for the trial court to addrespondent's tax refunds back into his bonuses. In calculating the child supportarrearage, we had respondent's tax returns and W-2 forms available for all butthe final year in question. Thus, we were able to use the actual amount ofincome respondent received as well as the actual tax he paid as shown on theseforms. Section 505(a)(3)(a) of the Act allows for the deduction of federalincome tax from gross income to determine net income for the purpose ofcalculating child support. 750 ILCS 5/505(a)(3)(a) (West 2000). The Act defines"[f]ederal income tax" as "properly calculated withholding or estimatedpayments." 750 ILCS 5/505(a)(3)(a) (West 2000). Properly calculated withholdingis, by definition, withholding that coincides with actual tax owed on one's grossincome. Thus, in calculating respondent's net income, we deducted the actualfederal income tax that he paid from the actual total income that he received. An alternate approach employed by some courts is to begin with net income and addback in any refunds, which represent overwithholding. See In re Marriage ofPylawka, 277 Ill. App. 3d 728, 733 (1996) ("Thus, if the noncustodial parentoverwithholds on his W-2, thereby overpaying his Federal income tax, the amountshould be added back to his net income for purposes of determining his supportobligation under section 505(a) of the Act"). These approaches represent twosides of a single mathematical coin. Because we have the benefit of havingrespondent's tax returns for past years available, we have chosen to employ theformer approach, as it simplifies the calculation. Further, we agree withrespondent that the effect of respondent's wife's income on his tax refundsshould have been ignored. We note, however, that respondent's wife's income wasrelatively trivial when compared with respondent's income. Thus, whether oneaccounts for her income makes little difference to the ultimate determination ofthe amount of the arrearage.
Regarding the trial court's characterization of portions of respondent'sincome as "excess bonuses," we find no error. Respondent's employment agreementstates that his base pay is $120,000 per year. Respondent testified that heincreased his base salary, with Roy Krughoff's consent, when the company washaving good years rather than waiting until the end of the year to receive themoney. Additionally, the following colloquy took place between respondent andpetitioner's counsel:
"Q[.] So you did not want to wait until January to receive a lump-sum bonus, you wanted to increase your weekly take tooffset against deficits, is that correct?
A[.] I increased my bonuses to enjoy money earlier."
Thus, evidence in the record provides a basis for the trial court's finding thatfunds received by respondent in excess of his base pay but not explicitlycharacterized as bonus monies was, in actuality, a bonus. Respondent points outthat he testified that his weekly income increased because he was working harder. Resolving conflicts in the evidence lies within the province of the trier offact. Williams v. Cahill, 258 Ill. App. 3d 822, 825 (1994). Given the state ofthe record, we cannot say that the trial court's characterizing these sums asbonuses was contrary to the manifest weight of the evidence.
Having concluded that the trial court gave respondent the benefit ofappropriate deductions from his bonuses, we now turn to the actual calculationof the arrearage. We will not set forth the calculations for every year indetail. Instead, we will explain our methodology and set forth our calculationsfor one year as an example. Before proceeding, however, we note that respondentcomplains that the trial court did not set forth its calculations in detail andthat it is thus impossible to determine how the trial court derived the amountof the arrearage it found to be due. It would have been helpful indeed if thetrial court had set forth its calculations and would have greatly facilitated ourreview of this cause. Nevertheless, we review the correctness of the trialcourt's result rather than the correctness of its reasoning. Department ofMental Health & Developmental Disabilities v. Illinois Civil Service Comm'n, 103Ill. App. 3d 954, 957 (1982). Hence, respondent's request that we remand thematter so that the trial court can clarify and possibly revise its calculationsis ill taken. This court can recalculate the child-support arrearage anddetermine if the result reached by the trial court was correct.
In recalculating the arrearage, we applied the following formula. We firstdetermined the amount of federal income tax attributable to a bonus. To do so,we divided the bonus by the total income for the given year. This yielded aratio of bonus to total income. We then multiplied the total federal income taxfor the year by the ratio. This yielded a figure that represented aproportionate share of the tax attributable to the bonus. By attributing aproportionate share of the tax to the bonus, we eliminated the effect of taxbracketing used in the federal income tax system. We believe that eliminatingthis effect is equitable. Neither party should benefit or be prejudiced by theartifice of considering certain income as falling into a certain bracket. Moreover, in determining appropriate child support, we are not bound by thetechnicalities of federal income tax law. See In re Marriage of McGowan, 265Ill. App. 3d 976, 979 (1994). To determine the appropriate deductions for stateincome tax and Medicare, we multiplied the bonus by .03 and .0145, respectively. We then subtracted state and federal income tax and Medicare from the bonus toderive the net bonus. We next multiplied the net bonus by .25 to determine childsupport due on the bonus.
For example, for 1995, we engaged in the following calculations.
Federal Income Tax Attributable to Bonus | |
Total Income | $153,636 |
Bonus | $48,827 |
Ratio (Bonus
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