Department of Public Aid ex rel. Nale v. Nale
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0095
Case Date: 02/09/1998
NO. 4-97-0095
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE DEPARTMENT OF PUBLIC AID ) Appeal from
ex rel. ANTOINETTE NALE, ) Circuit Court of
Petitioner-Appellant, ) Macon County
v. ) No. 88D150
MICHAEL NALE )
Respondent-Appellee. ) Honorable
) John L. Davis,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Michael and Antoinette Nale were divorced in December
1988. Two children were born to the parties: Jessica, now age
17, and Garrett, now age 15. Under the separation agreement in-
corporated into the judgment for dissolution of marriage, Antoi-
nette was designated primary physical custodian of the children
and Michael paid $400 per month in child support. In August
1996, the Illinois Department of Public Aid (IDPA), acting on
behalf of Antoinette, filed a petition to modify child support,
which was denied in October 1996. In January 1997, IDPA's motion
to reconsider was denied. We reverse and remand with directions.
When Antoinette and Michael separated in December 1988,
they entered into a separation agreement that provided Antoinette
had primary physical custody of the children and Michael was to
have reasonable visitation rights. This agreement was incorpo-
rated into the order dissolving their marriage, entered later
that month. The agreement provided Michael would pay child sup-
port of $200 per month per child, subject to modification in
accordance with statutory guidelines should Michael receive a pay
increase.
In 1996, Antoinette availed herself of the child sup-
port services of the IDPA, although she was not receiving public
aid. See 305 ILCS 5/10-1, 10-10 (West 1996); In re Marriage of
Lappe, 176 Ill. 2d. 414, 438-39, 680 N.E.2d 380, 392 (1997) (up-
holding the constitutionality of IDPA's child support enforcement
program). In August 1996, the IDPA filed a petition on behalf of
Antoinette to increase child support, alleging an increase in the
children's needs and an increase in Michael's ability to pay.
Antoinette attached her financial affidavit to her petition. In
his response, Michael admitted both the children's needs and his
ability to pay have increased. Michael requested that if the
court increased his child support obligation, he be awarded the
state and federal income tax deductions for the children and be
given credit for the periods he has actual custody of the chil-
dren for summer and holiday visits.
In October 1996, the trial court heard the petition to
modify. Antoinette's affidavit listed her gross annual income as
$53,818, and her weekly gross income as $1,035 (or $4,484.83 per
month). After taxes and social security deductions, Antoinette
earns $831.95 per week ($3,605.12 per month). She testified her
most recent take-home pay was $1,130 for a two-week period (or
$2,260 per month). The affidavit indicates her monthly expenses
amount to $2,626.40, in addition to $327.72 in car loans and
credit card payments.
Michael's income had increased since the dissolution.
He testified his "salary in 1989" was $32,000 to $33,000. Ac-
cording to Michael's tax forms, he earned a gross income of
$38,489.26 in 1993, $42,794.05 in 1994, and $45,516.36 in 1995.
Michael testified that in 1996 his "annual salary [was] just over
$51,000." According to a recent pay stub, his take-home pay is
$1,309.68 every two weeks for a period of nine months a year.
Michael has remarried since the dissolution, and his tax returns
suggest his current wife is also employed.
Antoinette testified the children stay with Michael
more often than every other weekend and they spend one-half of
holiday vacations with him. Michael testified his son lived with
him the first trimester of the school year and was with him for
more than half of the summer. Antoinette testified Garrett was
with Michael half of the summer but Jessica stopped spending half
of the summer with Michael two years before the hearing.
In addition to $400 per month in child support, Michael
pays $150 per month to provide health insurance coverage for the
children. Michael stated he also provided for all the children's
needs during periods of extended visitation and continued to pay
the full amount of support to Antoinette when he had custody of
the children. Michael has taken several vacations with the chil-
dren in the last few years and also gives them gifts on holidays.
Antoinette testified the children's needs have in-
creased significantly since the child support order in 1989. An-
toinette testified in general terms as to the types of expenses
she incurred on behalf of the children, but she was unable to
calculate and testify exactly how much it cost her each month to
support the children. Antoinette detailed significant expendi-
tures for allowances, extracurricular activities, a car for
Jessica, birthdays and Christmas, and vacations. Antoinette
testified the children have bank accounts at three different
institutions. Each has about $1,000 in his respective account at
the credit union, $2,000 each in a Putnam Investment account, and
$400 to $500 each in a First Mutual Investment account.
On cross-examination Antoinette testified Jim Forester
has lived in her home for three years. She described him as her
"significant other" and stated she planned to marry him sometime
in the spring of 1997. Forester earns $36,000 per year. Antoi-
nette testified Forester contributes to the household "no more
than what his normal expenses would be." He does not pay her
rent or contribute to her mortgage payment, taxes, or insurance.
Forester does not pay for water and sewer services. Nor does
Forester pay for telephone, trash collection, or cable televi-
sion. However, Antoinette testified Forester "pays his share in
the house," stating further that "every now and then he will pay
a utility bill or a water bill" or pay the cleaning lady. Antoi-
nette testified he sometimes buys groceries, pays his own car
insurance, and "takes care of other types of things around the
house." When the court asked her to present cancelled checks to
document Forester's contributions, she was unable to do so.
At the close of testimony, IDPA's counsel stated that
though the statutory child support amount was $763.56 per month,
the children's needs justified an upward deviation in child sup-
port, to $800 per month. Michael's counsel argued that some
increase in child support was appropriate, given the rising needs
of the children and his rising income. However, he argued $600
per month was adequate. He again requested the income tax exemp-
tions and credit for time he spent with the children.
In pronouncing judgment, the trial court recited the
statutory factors and then made the following statement:
"This court, after having considered the
statutory factors, finds that the statutory
amount is not appropriate in this situation,
that the amount of support being paid under
the current situation is adequate in view of
the resources of the children, the physical
and emotional needs of the children, and
educational needs. So far as this court is
aware, Section 720 ILCS 5[/]11-8 [(West
1996), defining the misdemeanor crime of
fornication,] [h]as not been repealed in this
state and is still good law. This woman
comes before this court asking for an in-
crease in child support but at the same time
supports a man not her husband. And yet
argues to this court that she needs addition-
al support. She is living in a[n] open state
of fornication in violation of the law. This
petition is denied."
In January 1997, Antoinette's motion to reconsider was heard.
Antoinette offered evidence of Forester's contributions to the
household, but the trial court rejected it and did not allow her
to make an offer of proof. The trial court reaffirmed its deci-
sion to deny any increase in child support.
Section 510 of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/510 (West 1996)) imposes certain
prerequisites on modifications of child support awards. All
agree that Michael's increased income constitutes a "substantial
change in circumstances," sufficient to justify a modification of
child support. 750 ILCS 5/510(a)(1) (West 1996). Accordingly,
we need not address whether Michael's increased income would also
justify an award under the provisions for an automatic increase
under section 510(a)(2)(A). 750 ILCS 5/510(a)(2)(A) (West 1996)
(in IDPA cases, an increase of over 20% in the payor spouse's
income automatically allows a modification of child support).
Once a modification is authorized under section 510, a
trial court is to set the amount by considering the same factors
used to determine an initial child support order. See In re
Marriage of Bussey, 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233-
34 (1985). The modification of child support payments lies with-
in the sound discretion of the trial court. Bussey, 108 Ill. 2d
at 296, 483 N.E.2d at 1233.
However, there are limits on this discretion. Section
505(a) of the Act creates a rebuttable presumption that a speci-
fied percentage of a noncustodial parent's income represents an
appropriate child support award. In re Marriage of Freesen, 275
Ill. App. 3d 97, 105, 655 N.E.2d 1144, 1150 (1995). This pre-
sumption also applies in modification proceedings. People ex
rel. Hines v. Hines, 236 Ill. App. 3d 739, 745, 602 N.E.2d 902,
907 (1992). Michael, the party seeking a deviation from child
support guidelines, has the burden of producing evidence justify-
ing the deviation. In re Marriage of Blaisdell, 142 Ill. App. 3d
1034, 1041, 492 N.E.2d 622, 627 (1986). Compelling reasons must
be presented to overcome the presumption that the guidelines will
be applied. In re Marriage of Stanley, 279 Ill. App. 3d 1083,
1085, 666 N.E.2d 340, 341 (1996).
Initially, we address the trial court's focus on
Antoinette's living arrangement. The statute defining fornica-
tion no longer defines mere cohabitation as a crime. Compare
Ill. Rev. Stat. 1991, ch. 38, par. 11-8(a), with 720 ILCS 5/11-
8(a) (West 1996). Moreover, while a custodial parent's fornica-
tion could have, in some circumstances, justified a change of
custody prior to the amendment (see Jarrett v. Jarrett, 78 Ill.
2d 337, 346-47, 400 N.E.2d 421, 424 (1979)), it provides poor
grounds for limiting child support (cf. People ex rel. Winger v.
Young, 78 Ill. App. 3d 512, 514, 397 N.E.2d 253, 255 (1979) (cut-
ting off child support is an inappropriate sanction for interfer-
ence with court-ordered visitation)). While this may be an ap-
propriate response to some parental misconduct, it is a drastic
sanction, and the movant bears a heavy burden of proof. Cooper
v. Cooper, 59 Ill. App. 3d 457, 466, 375 N.E.2d 925, 931-32
(1978). It is not appropriate for the trial court to raise the
issue sua sponte and limit child support without any evidence or
argument as to the effect of the living arrangement on the chil-
dren or the appropriateness of this particular response.
Antoinette's living arrangement could still be relevant
insofar as it affected her resources. See 750 ILCS 5/505(a)(2)
(b) (West 1996). The trial court's emphasis on the allegedly
criminal nature of the relationship suggests its primary concern
was not its effect on the household's resources. However, on
appeal we review the trial court's judgment, not its reasoning.
See Leonardi v. Loyola University, 168 Ill. 2d 83, 97, 658 N.E.2d
450, 457 (1995).
The trial court may not normally examine the financial
status of others in the household who have no legal relationship
to the child. Cf. In re Marriage of Keown, 225 Ill. App. 3d 808,
813, 587 N.E.2d 644, 647 (1992) (income of obligor's spouse not
to be considered in determining obligor's ability to pay child
support, except in equity, to determine if payment would endanger
ability of supporting party's household to meet its needs).
Still, the trial court may ensure child support is, in fact,
benefitting the children. See Uniform Marriage and Divorce Act
9A U.L.A. 309, Comment, at 400 (1987). Accordingly, the trial
court may deviate downward from child support guidelines if it
determines the supporting parent is using support to pay for an
unwarranted benefit to someone, such as Forester, who is not
entitled to support. See People ex rel. Graham v. Adams, 239
Ill. App. 3d 643, 647, 608 N.E.2d 614, 617 (1993).
However, the trial court's reliance on the mere fact
that such a person lived in the recipient household effectively
punishes the children for living arrangements over which they
have no control. See Department of Public Aid ex rel. Temple v.
Van Kampen, 243 Ill. App. 3d 767, 771, 612 N.E.2d 882, 885
(1993). According to Antoinette's unrebutted testimony, Forester
made some contributions to the home. While Forester apparently
received a windfall by living in the home without paying rent or
utilities, there was no showing Antoinette conferred this benefit
on him by using child support or resources that would have other-
wise been available for the children.
We are not imposing a heavy burden on Michael. We are
well aware of the difficulties of discovering financial details
about a household of which one is not a member. In appropriate
circumstances, the financial resources of the parties may alone
make it clear that someone other than the children is receiving
the benefit of child support. See Graham, 239 Ill. App. 3d at
646, 608 N.E.2d at 616-17 (deviation from the guidelines was
appropriate where the recipient household was destitute, so that
guideline amount would effectively make payor father provide
resources for entire household, including children not entitled
to support). Here, however, Antoinette had a well-paying job and
could easily have provided some living expenses for Forester
while paying her share of the children's support. Accordingly,
the burden of production remains with Michael until he presents
more specific evidence that his child support is being diverted
to Forester or others.
The trial court mentioned it considered the needs of
the children. Michael notes there was little evidence regarding
the actual cost to support the minor children, and there was no
evidence the children were being deprived in any way or that they
were living a lifestyle below that which they would have enjoyed
had the parties remained married.
This argument is flawed. First, it ignores the role of
the statutory presumption. Again, Michael has the burden of pro-
ducing evidence justifying the downward deviation from support
guidelines. Blaisdell, 142 Ill. App. 3d at 1041, 492 N.E.2d at
627. He cannot rely on Antoinette's failure to present evidence
to meet this burden. More important, Michael admitted in his re-
sponse to the petition to modify that the needs of the children
had increased since the dissolution. While Antoinette's finan-
cial affidavit may have included some expenses that should have
been attributed to Forester, her testimony still supported this
admission.
In Michael's response to the petition to modify he also
admitted his income had increased. The evidence at trial sup-
ported this admission. If the evidence shows a significant in-
crease in both the obligor's income and the needs of the chil-
dren, and does not provide any other evidence to suggest reduced
support is appropriate, the trial court abuses its discretion by
denying a petition to increase child support to conform to the
statutory guidelines. See In re Marriage of Heil, 233 Ill. App.
888, 895, 599 N.E.2d 168, 173 (1992).
The trial court mentioned the resources of the children
justified a downward deviation from support guidelines. The re-
cord demonstrates the children had bank accounts of roughly
$3,500 each. The resources of the children are relevant under
section 505. 750 ILCS 5/505(a)(2)(a) (West 1996). However, this
factor has only justified a reduction in child support when a
child has significant financial resources relative to his par-
ents. See, e.g., In re Marriage of Frazier, 205 Ill. App. 3d
621, 623, 563 N.E.2d 1236, 1238 (1990) (child support below stat-
utory guidelines warranted when child could access a $72,234.54
trust account and child's estate far exceeded payor's financial
resources); In re Marriage of Wentink, 132 Ill. App. 3d 71, 80,
476 N.E.2d 1109, 1115 (1984) (child support below statutory
amount within trial court's discretion when child is beneficiary
of two trusts valued in excess of $275,000, equal in value to
roughly 87% of the parents' joint assets). This is not such a
case.
A deviation from child support guidelines cannot be
justified by Antoinette's income alone. It is true that Antoi-
nette earns more than Michael. Moreover, the statute explicitly
provides that both parents have an obligation to provide finan-
cial support for the children. See 750 ILCS 5/505(a) (West
1996). However, the idea that a payor of child support should
pay reduced child support based on the custodian's income has
repeatedly been rejected. See In re Marriage of Kern, 245 Ill.
App. 3d 575, 577, 615 N.E.2d 402, 404 (1993); Blaisdell, 142 Ill.
App. 3d at 1047-48, 492 N.E.2d at 631.
We also reject Michael's argument that the statutory
guidelines should not be applied here because of the parents'
high incomes taken together. It is true that the utility of the
statutory child support guidelines decreases as the incomes of
the parties increase. In re Marriage of Harmon, 210 Ill. App. 3d
92, 96, 568 N.E.2d 948, 951 (1991). Child support payments are
not intended to be windfalls to the children. In re Marriage of
Bush, 191 Ill. App. 3d 249, 261, 547 N.E.2d 590, 596-97 (1989).
However, even with parents earning high incomes, the trial court
must consider the standard of living the child would have enjoyed
had the parents remained married. In re Marriage of Lee, 246
Ill. App. 3d 628, 644, 615 N.E.2d 1314, 1326 (1993).
Applying the statutory guidelines in this case would
not result in an unfair windfall to the children. Cases in which
the parents' high incomes have justified a deviation from the
statutory guidelines have generally involved parents earning
substantially more than the Nales. See Harmon, 210 Ill. App. 3d
at 94-95, 568 N.E.2d at 950 (parents had a joint gross annual
income of roughly $180,000, and the parties had three children);
Bush, 191 Ill. App. 3d at 253, 547 N.E.2d at 592 (parents had
joint gross annual income of roughly $386,000 and the parents
were supporting one child).
For the reasons stated, we reverse the trial court.
The trial court did not make any findings as to the amount pro-
vided by statutory guidelines, and specifically whether Michael
is entitled to credit against his income for health insurance
premiums. See 750 ILCS 5/505(a)(3)(f) (West 1996). Because it
would be inappropriate for us to enter an award for a specific
amount where such factual uncertainty remains, we remand with
directions for the trial court to determine Michael's net income
under the Act and enter a child support award equal to the amount
provided by statutory guidelines.
Reversed and remanded with directions.
STEIGMANN and McCULLOUGH, JJ., concur.
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