NO. 4-03-0510

JUSTICE APPLETON delivered the opinion of the court:

In September 2002, petitioner, David L. Armstrong, filed apetition to modify his child support payments to his former wife,respondent Nancy J. Armstrong. In April 2003, the trial court heardarguments on David's petition. After taking the matter under advisement, the court denied his petition, ruling "no substantial change incircumstances [had been demonstrated] justifying a modification of[p]etitioner's child support from May of 2000 to [May 2003]."

David appeals the trial court's decision, arguing thecourt erred in not finding a substantial change in circumstances andin not modifying his child support payments. For the reasons thatfollow, we affirm.

The marriage of David and Nancy Armstrong was dissolved inJuly 1997. The trial court awarded David and Nancy joint custody oftheir three children. Nancy received residential custody, and Davidreceived reasonable visitation rights. The court ordered David topay $1,250 per month in child support based on a marital settlementagreement. The record fails to provide information on the parties'respective incomes at that time but through admission in David'sbrief, we know his gross income at that time was over $90,000 peryear.

In February 1999, Nancy filed a petition to modify thejudgment. She asked the trial court to increase the amount of childsupport David then paid. Nancy filed a financial affidavit in March1999 stating that her net monthly income, including the $1,250 permonth in child support she received from David, was $2,445. Davidfiled a financial affidavit in July 1999 stating that his net monthlyincome was $5,208. The parties stipulated that David's child supportpayments should be increased to $1,603 per month. In July 1999, thecourt entered an order increasing support to $1,603 per month basedon the parties' agreement.

In April 2000, David filed his own petition to modify thejudgment, which was heard in May 2000. A May 2000 docket entry showsthe trial court denied the petition. In June 2000, the partiesagreed to modify paragraph 7 of the dissolution judgment (childsupport) for 1999 only.

According to the court's May 2003 memorandum opinion andorder, David testified that he voluntarily left his job with PapaJohn's Pizza in March 2000 to invest in and work for a company calledPizza Magia. His $25,000 investment in that business came from hisparents. He had worked for Papa John's Pizza for eight years and wasthe vice president of operations. His gross income from that employment was approximately $90,000 per year. At Pizza Magia, his annualgross income would have been only $60,000, but David testified toexpecting opportunities for greater growth and increased income. After hearing the evidence presented, the court denied David'spetition, finding that he had not changed jobs in good faith. Daviddid not appeal the court's May 2000 order denying the modification.

In September 2002, David filed another petition to modifythe judgment, which was heard in April 2003. David testified that hewas involuntarily terminated from Pizza Magia in September 2002because the other investors made a $50,000 capital demand that hecould not meet. In December 2002, he began working for QualityDining, Inc., as a district manager. He testified that his salary atQuality Dining, Inc., was a "little bit higher" than it had been atPizza Magia. According to an earnings statement introduced as anexhibit by David, he grossed $16,665.39 in the first three months of2003 working for Quality Dining, Inc. This figure included anautomobile allowance of $150, which he received biweekly. At thatrate, his gross salary would total $66,661.56 per year.

At the same hearing, Nancy testified that she grossed$13,000 per year working for Mahomet High School. This was anincrease from her income of $3,400 per year in 2000. (The record isnot clear if $3,400 was Nancy's gross or net income in 2000.) However, Nancy testified that the children's expenses were greaterthan they had been three years earlier.

After taking the matter under advisement, the trial courtdenied David's petition in May 2003. In its memorandum opinion andorder, the court explained its decision as follows:

"The [c]ourt finds that there has been no substantial change in circumstances justifying amodification of [p]etitioner's child supportfrom May of 2000 to date. In May of 2000[,][p]etitioner was making $60,000.00 per year aspart owner of Pizza Magia with no expectationof any bonuses. No evidence was presented ofany other employment benefits at that time. Atthe present time[,] the [p]etitioner isemployed as a district manager for QualityDining, Inc. He makes $66,661.56 per year plusa bi[]weekly car allowance of $150.00. Respondent was making $3,400.00 per year in Mayof 2000 and now makes $13,000.00 per year. Theincreased income of the [p]etitionersubstantially offsets the increased income ofthe [r]espondent, particularly when combinedwith the greater expenses presently for thethree minor children. The [c]ourt furtherfinds that both current spouses have theability to earn substantial income. Accordingly, the motion to modify filed by the[p]etitioner should be denied."

This appeal followed.

II. ANALYSIS

On appeal, David argues that the trial court erred (1) bynot finding a substantial change in circumstances and (2) bydetermining whether a substantial change in circumstances occurredbefore deciding if David's change of employment was made in goodfaith. Nancy responds that the court did not abuse its discretion infinding that David failed to prove a substantial change incircumstances between May 2000 and May 2003.

The trial court found David failed to show that asubstantial change in circumstances occurred between May 2000 and May2003. The trial court's determination whether a substantial changein circumstances occurred is one of fact and will not be disturbedunless it is found to be against the manifest weight of the evidence. In re Marriage of Barnard, 283 Ill. App. 3d 366, 370, 669 N.E.2d 726,729 (1996).

It is difficult to determine if David's argument is thatthe court erred (1) in not finding a substantial change incircumstances between the circumstances present at the time of theoriginal judgment, July 1997, and those in May 2003 or (2) in notfinding a substantial change in circumstances between thecircumstances between May 2000 and May 2003. To the extent Davidargues the former, he is wrong. "The issue on a petition formodification of child support is whether there has been a material[,i.e., substantial,] change in the circumstances of the partiessince the previous order." Nordstrom v. Nordstrom, 36 Ill. App. 3d181, 184, 343 N.E.2d 640, 642 (1976).

In many cases, the previous order will be the originaljudgment. However, that is not true here. David seeks to have thiscourt test whether there has been a substantial change in his incomeusing as a beginning point the July 1999 order, when he was earningan annual gross income of $90,000. That order, which denied himrelief based on the court's finding that his change in employment wasin bad faith, cannot be the benchmark for determining the existenceof changed circumstances.

The order finding that David was not entitled to areduction because of his bad faith, which order was not appealed, isres judicata. As such, his reduction in income from $90,000 perannum to $60,000 is of no effect. That David subsequently lost hisemployment at Pizza Magia does not absolve him of the bad faithpreviously found. Had the bad-faith, voluntary termination of hisposition at Papa Johns not occurred, we must assume he would still beearning the larger salary.

In this determination, we are mindful of our recentdecision in In re Marriage of Spent, 342 Ill. App. 3d 643, 796 N.E.2d191 (2003), where we found that the denial of a petition to terminatejoint custody was not a custodial judgment that would begin anew thetwo-year period before which custody could not be modified absentcompliance with section 610(a) of the Illinois Marriage andDissolution of Marriage Act (750 ILCS 5/610(a) (West 2000)). Likewise, David's unsuccessful attempt to show changed circumstancesas to his income from the time he left the employ of Papa John'scannot be used to establish a benchmark against which his incomeshould now be compared. While future adjustments of support are notprecluded under these circumstances, they cannot automatically bebased on a reduction from David's Papa John's Pizza salary.

Because the trial court compared the correct two periodsin time, we next consider whether the court's finding that Davidfailed to show a substantial change in circumstances between May 2000and May 2003 was against the manifest weight of the evidence. Afterexamining the trial court's memorandum opinion and order and David'searnings statement that he introduced as petitioner's exhibit No. 1,we conclude that the court did not err in finding David made$66,661.56 per year at his new employment. While an increase from$60,000 to $66,661.56 is a change in circumstances, as was theincreased income of Nancy, we cannot find that the court'sdetermination that a substantial change in circumstances had notoccurred was against the manifest weight of the evidence.

Likewise, the trial court committed no error bydetermining whether a substantial change in circumstances occurredbefore deciding whether his latest change in employment was made ingood faith. Only after determining the threshold issue of whether asubstantial change in circumstances has occurred can a court considermodifying a child support order. Fedun v. Kuczek, 155 Ill. App. 3d798, 801-02, 508 N.E.2d 531, 534 (1987).

III. CONCLUSION

For the reasons stated, we affirm the trial court'sdetermination.

Affirmed.

McCULLOUGH and MYERSCOUGH, JJ., concur.