No. 3--03--0360

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE SLATER delivered the opinion of the court:

Petitioner Susan Newberry appeals from orders entered by thecircuit court of Rock Island County modifying child support anddenying her motion to reconsider. The issues on appeal arewhether the court (1) improperly gave respondent David Newberrycredit for an adoption subsidy paid by the state of Iowa for thesupport of three of the parties' minor children; (2) improperlyrefused to include income from David's second job in determiningthe amount of his net income available for support; and (3)should have given Susan credit for the cost of the children'shealth insurance. We affirm.

The record shows that the parties' marriage was dissolved inScott County, Iowa, on June 23, 1997. At the time of theirdivorce, the parties had five children. The three youngerchildren were adoptees for whom the state of Iowa paid a monthlysubsidy. An amended divorce decree entered September 24, 1997,contained the following provisions relevant to this appeal:

"4. Petitioner receives from the state of Iowa the sumof approximately $1,450.00 per month as and for the supportof the three minor children adopted by the parties. ThisCourt finds that based on the payment of this separatesupport for the minor children that it is just and equitablefor the Court to deviate from the Child Support Guidelinesin calculating Respondent's child support obligation. Respondent's obligation shall be based on the two children,Claire and Margaret, and excluding the three children,Andrew, David, and Kristen, for whom separate support isreceived."

The Iowa court ordered David to pay $401.43 bi-monthly in childsupport and ordered Susan to provide medical, dental and hospitalinsurance for the children.

On May 30, 2002, Susan filed a petition in the circuit courtof Rock Island County stating that both parties had moved toIllinois. She requested the court to register the Iowa decreeand assume jurisdiction over the parties and subject matter ofthe Iowa judgment. The court granted the petition in an agreedorder of June 11. On October 11, 2002, Susan filed a petition tomodify child support, claiming that both the expenses of thechildren and David's income had increased substantially.⁽¹⁾

The circuit court subsequently entered an order, relevantportions of which follow:

"Petitioner registered the Iowa judgment and now seeks tomodify the support order according to Illinois guidelines. Specifically, she seeks support based on five children, or45% of respondent's net income. She still receives themonthly benefit from Iowa, now about $1,700, but arguesrespondent should not now receive any credit for thatbenefit. The court notes that the work-related incomes ofboth parties are relatively close.

*** The parties agree that respondent has net incomefor Illinois child support purposes, of $1,608.77 bi-monthly. Under the guidelines, 45% is $726.60, and 25% is$402.20. Thus, the question: what amount of child supportis appropriate?

As indicated, no Illinois case addresses this issue. In re Marriage of Henry, 156 Ill. 2d 541 (1993), *** heldthat Social Security *** benefits are based upon theearnings of the recipient, and a benefit received *** byrecipient/payor spouse's dependent satisfied the payor'ssupport obligation.

On the other end of the spectrum is In re the Marriageof Robertson, 151 Ill. App. 3d 214 (1st Dist. 1986), whichheld that voluntary payments to payor's children, from hismother's testamentary trust, should not be credited againsthis child support obligation.

The payment from the State of Iowa in this case issomewhere between gratuitous and an earned benefit. Withoutquestion, however, it is a benefit generated by bothparents' willingness to adopt these children and the purposeof it is to help support them. In this posture, credit forit should be given to respondent when setting his support inthis State.

The court finds that the Iowa benefit satisfiesrespondent's support obligation to those three children. Accordingly, support is set at 25% of his net income, whichresults in $402.20 bi-monthly."

Susan filed a motion to reconsider. Following a hearing,the court ordered David to prepare a Qualified Medical SupportOrder (QMSO) and otherwise denied the motion. Susan appeals.

Initially, we consider Susan's argument that the trial courtimproperly gave David credit for the Iowa adoption subsidy. Shecontends that the court should have given no credit at all; or,in the alternative, the court should have considered 50% of thesubsidies as a credit against David's obligation; or, as anotheralternative, the court should have credited the subsidies basedon time spent with the children. We are unaware of any reportedIllinois decisions that have addressed the treatment of adoptionsubsidies in calculating child support. However, the issue hasreceived judicial attention in sister jurisdictions. See, e.g.,Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (2002); Strandbergv. Strandberg, 664 N.W.2d 887 (Minn. App. 2003). While notcontrolling, these decisions appear to be well reasoned, and theyprovide some guidance in resolving the issue here.

In Hamblen, the parties adopted five "special needs"children during their marriage. At the time of their divorce,the Hamblens were being paid state adoption subsidies of $671 permonth per child. The trial court ruled that the subsidies wouldbe treated as income to the children which, by Arizona statutoryguidelines, did not relieve a parent of his support obligation. The court therefore excluded the subsidies from the child-supportcalculation. Hamblen, 203 Ariz. 342, 54 P.3d 371.

On appeal, the Arizona reviewing court considered the payor-father's argument that the subsidy belonged to the parents andcould be used to reduce child support in the same manner as wage-based social security benefits. The court observed that, unlikesocial security benefits which replaced lost parental income, theadoption subsidy was for the direct benefit of the adopted child. The court reasoned that crediting the adoption subsidy against aparent's child-support obligation would practically eliminate thesupplementary effect of the subsidy. A direct credit, the courtnoted, would place the children in a worse position than childrenwithout special needs and potentially deter prospective parentsfrom adopting special-needs children. Therefore, rejecting thefather's arguments, the court affirmed the trial court and ruledthat the subsidy was income attributable to the children. Hamblen, 203 Ariz. 342, 54 P.3d 371.

In Strandberg, the parties had one adopted child for whomthe state of Minnesota paid subsidies to the custodial motherafter the parties' divorce in amounts ranging from $397 to $427per month. The district court ruled that the subsidies could notbe considered in determining child support and ordered the payorfather to pay child support pursuant to statutory supportguidelines.

On appeal, the father argued that the district court abusedits discretion in refusing to grant a downward deviation from theguidelines. The reviewing court agreed. The court found thatthe district court's ruling conflicted with Minnesota's statutoryrequirement that the "financial needs and resources" of the childbe considered in setting support. Because the adoption subsidywas a resource available for meeting the child's needs, the courtreasoned, it was error not to factor the subsidy into the childsupport determination. Strandberg, 664 N.W.2d 887.

Although the results of Hamblen and Strandberg may appear tobe at odds with each other, both courts treated adoptionsubsidies as benefits belonging to the children, not the parents. We agree that adoption subsidies should be so treated in thisstate.

The Illinois statute governing child support generallyrequires a noncustodial parent to pay a minimum of 45% of his netincome for five children. 750 ILCS 5/505(a)(1) (West 2002). However, a deviation from the statutory guideline is permitted ifthe court finds that the support so determined would beinappropriate based on, inter alia, the financial resources andneeds of the child. 750 ILCS 5/505(a)(2) (West 2002). The trialcourt in this case did not consider its decision a "deviationunder the statute." Nevertheless, the court's order on its facedemonstrates compliance with Illinois' statutory mandate to makefindings to support a downward deviation in the amount of anoncustodial parent's child support obligation. See 750 ILCS5/505(a)(2) (West 2002).

Turning to Susan's arguments in this appeal, we initiallyconsider her proposal that the adoption subsidies are tantamountto "voluntary payments" and should be excluded from thecalculation of David's child support obligation. See In reRobertson, 151 Ill. App. 3d 214, 502 N.E.2d 1279 (1986). InRobertson, the parties' children were the designatedbeneficiaries of a testamentary trust left by their grandmother,the payor-father's mother. At trial, the father argued, but didnot prove, that payments made by the trustees to the childrenwere intended as payments in lieu of child support. The trialcourt ruled, lacking evidence to the contrary, that the paymentswere gratuitous and declined to give the father credit for them. On appeal, the court affirmed, holding that there was no evidenceto demonstrate the payments were not voluntary. Robertson, 151Ill. App. 3d 214, 502 N.E.2d 1279.

Unlike Robertson, the trial court in this case found thatthe purpose of the subsidies was to supplement support for thethree adopted children. As such, the payments are not the sameas "voluntary" benefits, and they may be factored into thecalculation of the support award. See Strandberg, 664 N.W.2d887.

Next, we note that Susan offers no legal support for heralternative proposal giving David a 50% credit for the adoptionsubsidies. To the extent that such a formula may have beenproposed at trial, we hold that it was properly rejected, becausethe proposed formula lacks any logical relationship to the sourceor purpose of the subsidies.

We also reject the second alternative which Susan proposeswithout legal authority--i.e., that the court should have granteda credit to David based on visitation. Relating a parent's childsupport obligation to visitation is inconsistent with the supportstatute, which bases support primarily on the financial resourcesand needs of the parents and the child. See 750 ILCS 5/505 (West2000).

In our opinion, the circuit court's treatment of the Iowaadoption subsidies properly recognized them as resources of thechildren available for their support. See Strandberg, 664 N.W.2d887. Considering that the amount of the parties' net income isapproximately equal, and the amount of the subsidies paid forthree of the children is proportionately greater than their shareof an unallocated 45% of David's income, we cannot say that thecourt erred in granting credit against David's supportobligation. The $804.40-per-month award determined by reducingthe percentage of David's net income to be paid for child supportappears to blend the children's needs with what is fair and whatis workable. See In re Marriage of Rogers, 283 Ill. App. 3d 719,670 N.E.2d 1154 (1996) (citing Lemon v. Kurtzman, 411 U.S. 192,36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973)). We conclude that thecourt did not err in its treatment of the adoption subsidies.

Susan also argues that the trial court erred in calculatingDavid's net income and in failing to consider her contribution tothe children's health care insurance. Both of these issuesconcern factual determinations which cannot be reviewed based onthe record before us.

It is the appellant's burden to provide an adequate recordfor review of issues on appeal. See Davis v. Allstate InsuranceCo., 147 Ill. App. 3d 581, 498 N.E.2d 246 (1986). Where therecord is inadequate, we presume that the trial court's judgmentconformed with the law and facts and was not an abuse ofdiscretion. Foutch v. O'Bryant, 99 Ill. 2d 389, 459 N.E.2d 958(1984).

The record before us contains neither a transcript of thehearing on Susan's petition to modify nor a bystander's report. We cannot tell what, if any, evidence the court considered withregard to the additional income Susan claims David earns or withregard to the parties' insurance obligations. We note only thatthe trial court's order indicates that the parties stipulated tothe amount of David's income and that the court granted Susan aQMSO in response to her motion to reconsider. Based on therecord, we presume that the trial court did not abuse itsdiscretion in setting the amount of David's support obligation. See Foutch, 99 Ill. 2d 389, 459 N.E.2d 958.

For the reasons stated, we affirm the judgment of thecircuit court of Rock Island County.

Affirmed.

HOLDRIDGE, P.J., and BARRY, J. concur.

1. It appears that the cause was heard on December 18, 2002;however, no transcript of the proceedings is included in therecord on appeal.