State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0372
Case Date: 04/18/1997
NO. 5-96-0372
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
CHERYL L. DAVIS n/k/a ) Madison County.
CHERYL L. BIEVENUE )
)
Petitioner-Appellee, )
)
and ) No. 89-D-166
)
DUANE A. DAVIS, ) Honorable
) Lewis E. Mallott,
Respondent-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
The respondent-appellant, Duane A. Davis, and the petitioner-
appellee, Cheryl L. Davis, n/k/a Cheryl L. Bievenue, were married
on January 26, 1985. The parties had one child, Danielle Renee
Davis, born August 28, 1985. The marriage was dissolved on
February 7, 1989. The instant action was brought in order to
increase child support due Cheryl from Duane. The circuit court
increased the amount of child support and denied Duane's posttrial
motions. Duane appeals the circuit court's order.
The relevant facts are as follows. Cheryl filed a petition
for dissolution on February 7, 1989, and a judgment for dissolution
was entered the same day. Since Duane was a dental student and
unemployed, the judgment of dissolution reserved the issue of child
support until Duane was employed. Duane began working as an
independent contractor for Harold Martin, D.D.S., in Flora,
Illinois, on January 7, 1991. On June 27, 1991, Cheryl filed a
petition to establish support. The circuit court entered an order
on August 21, 1991, ordering Duane to pay Cheryl child support
commencing January 1991 in the amount of $260 per month. On June
26, 1992, the circuit court ordered Duane to pay child support to
Cheryl in the amount of $400 per month commencing July 1, 1992.
On May 16, 1994, Duane purchased Jane Setzekorn's late
husband's dental practice, and the building partnership interest
that went along with the practice in Mt. Vernon, Illinois. In
order for Duane to purchase the late Dr. James Setzekorn's
practice, he was required to become a partner in the Dental Arts
Clinic building partnership that includes three other dentists.
The partnership is responsible for owning and maintaining the
office facility and the dental equipment contained therein. Duane
testified that the purchase of the building partnership interest
was not an optional feature of acquiring Dr. Setzekorn's dental
practice. Duane borrowed a total of $150,000 to buy the dental
practice and the building partnership interest.
On December 21, 1994, Cheryl filed a petition to modify,
seeking an increase in the amount of child support paid by Duane.
A hearing was held on Cheryl's petition on November 27, 1995.
A review of the record shows that in 1994, Duane and his current
spouse, Darla D. Davis, filed joint income tax returns. Duane
reported business income of $48,135, a nonpassive depreciation loss
of $18,999 on the purchase of his partnership interest, and
interest income of $106. Darla reported $2,601 in wages. Based on
these figures, Darla and Duane had a total income of $31,843.
Duane calculated that he earned 92% of the total income. Duane
also calculated that after deducting federal and state taxes and
his own health insurance, his net income for child support purposes
was $21,266.
At the time of the trial in this case, Duane's net income for
1995 was not fully known.
Cheryl has a bachelor of science degree in civil engineering,
and at the time of the hearing, she was working on completing her
master's degree. She is a registered professional engineer in
Missouri. At the time of the hearing, Cheryl was employed by the
United States Air Force as a program manager for an architectural
and engineering contract at Scott Air Force Base. Cheryl testified
that her gross income for 1994 was $42,020.41. Although Cheryl had
been contributing to a retirement plan, she did not know its value.
Although Cheryl prepared an affidavit of assets and liabilities,
she admitted that the figures that she provided in the affidavit
were merely estimates because she prepared it in the hallway
immediately before she walked into the courtroom at the November
27, 1995, hearing.
Danielle was 10 years old at the time of the hearing. Cheryl
testified that she spends an average of $150 per month on
Danielle's clothing. Cheryl also stated that she pays $42.25 per
month for Danielle to take gymnastic lessons once per week.
Danielle was also involved in soccer, softball, and basketball.
Cheryl testified that the cost for each sport is $10 in addition to
the equipment. She stated that the equipment can be costly
depending on the type of shoes that she must buy. Danielle also
takes piano lessons one time each week, and they cost $15 per
lesson. Danielle also participates in band. Cheryl stated that
Danielle is invited to birthday parties and that she must buy gifts
for her friends. Cheryl testified that Danielle attends church
camp that costs $170 per year, and that she attends girl scout camp
that costs $20 to $30. Cheryl stated that she neither informed
Duane about the cost of these activities nor asked him to
contribute to their cost.
On January 12, 1996, the circuit court determined that Duane's
net monthly income for child support purposes was $4,511 per month,
and the court ordered Duane to pay Cheryl child support in the
amount of $902 per month.
Duane filed a posttrial motion on February 9, 1996, requesting
modification of the circuit court's January 12, 1996, order and
requesting that the circuit court admit his 1995 tax returns into
evidence. On February 16, 1996, Duane filed an amended posttrial
motion with his revised 1995 tax returns attached thereto.
A hearing was held on Duane's amended posttrial motion on
April 17, 1996. The circuit court denied Duane's amended posttrial
motion and Duane's motion to file his 1995 tax returns with the
court. More specifically, the circuit court's order states, in
relevant part, as follows: "The Court *** notes that hearing on
this matter was conducted on November 27, 1995, and the Court
assumes that both parties, in particular the Respondent, submitted
*** financial evidence up to and through November 27, 1995. The
Court further notes that there was no continuance requested by
Respondent of the November 27th date so as to have the hearing
after the entire 1995 calendar year had expired. The Court also
notes that at [the] time of hearing some eleven-twelfths of the
year had expired and financial information for the month following
the day of the hearing is not now relevant to be received into
evidence during a post-trial [sic] motion."
Duane filed a timely notice of appeal on May 21, 1996.
The issue presented for review is whether the circuit court
abused its discretion in granting Cheryl's petition to increase
child support. Duane claims that the circuit court abused its
discretion in the following ways:
(1) The trial court erred in ordering an increase in
child support without making a threshold finding that there
had been a substantial change in circumstances;
(2) The trial court abused its discretion in refusing to
admit Duane's 1995 tax returns into evidence;
(3) The trial court erred in failing to deduct the
depreciation expense/nonpassive loss of Duane's building
partnership interest when determining Duane's net income for
child support purposes;
(4) The trial court erred in failing to deduct Duane's
health insurance premiums when determining Duane's net income
for child support purposes; and
(5) The trial court erred in failing to deduct Duane's
repayment of the income tax loan, student loans, and money
spent on Danielle's behalf exclusive of gifts when determining
Duane's net income for child support purposes.
Section 510(a) of the Illinois Marriage and Dissolution of
Marriage Act (the Act) provides that a child support judgment such
as the one in the instant case can be modified only "upon a showing
of a substantial change in circumstances." 750 ILCS 5/510(a) (West
1994). In order to satisfy this burden, the petitioning party must
show that the supporting spouse has an increased ability to pay and
the child receiving support has increased needs. In re Marriage of
Pylawka, 277 Ill. App. 3d 728, 731 (1996). The fact that the child
is older and the cost of living has risen is presumptive of an
increase in the child's needs. Pylawka, 277 Ill. App. 3d at 731.
The court can determine the amount of the increase in child support
only after the threshold question of whether a substantial change
in circumstances has occurred is answered. Pylawka, 277 Ill. App.
3d at 731.
The trial court must also consider the statutory guidelines
set forth in section 505 of the Act when considering whether to
modify child support payments. 750 ILCS 5/505 (West 1994). At the
time of these proceedings, section 505 stated:
"(1) The Court shall determine the minimum amount of
support by using the following guidelines:
Number of Children Percent of Supporting
Party's Net Income
1 20%
* * *
(2) The above guidelines shall be applied in each case
unless the court makes a finding that application of the
guidelines would be inappropriate, after considering the best
interests of the child in light of evidence including but not
limited to one or more of the following relevant factors:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial
parent;
(c) the standard of living the child would have enjoyed
had the marriage not been dissolved;
(d) the physical and emotional condition of the child,
and his educational needs; and
(e) the financial resources and needs of the non-
custodial parent." 750 ILCS 5/505(a)(1),(2) (West 1994).
Section 505(a)(3) of the Act states:
"`Net income' is defined as the total of all income from all
sources, minus the following deductions:
(a) Federal income tax (properly calculated withholding
or estimated payments);
(b) State income tax (properly calculated withholding or
estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law
or as a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization
insurance premiums;
(g) Prior obligations of support or maintenance actually
paid pursuant to a court order; [and]
(h) Expenditures for repayment of debts that represent
reasonable and necessary expenses for the production of
income, medical expenditures necessary to preserve life or
health, reasonable expenditures for the benefit of the child
and the other parent, exclusive of gifts. The court shall
reduce net income in determining the minimum amount of support
to be ordered only for the period that such payments are due
and shall enter an order containing provisions for its self-
executing modification upon termination of such payment
period." (Emphasis added.) 750 ILCS 5/505(a)(3) (West 1994).
It is the statutory definition that is to be used to determine net
income, not the Internal Revenue Code. Pylawka, 277 Ill. App. 3d
at 732.
Furthermore, a determination of the modification of child
support lies within the sound discretion of the circuit court and
will not be set aside absent an abuse of that discretion. In re
Marriage of Partney, 212 Ill. App. 3d 586, 590 (1991). The factors
to be considered in exercising that discretion are set forth in
section 505(a)(2) of the Act. Partney, 212 Ill. App. 3d at 590.
"Abuse of discretion occurs only where no reasonable man would take
the view adopted by the trial court." Partney, 212 Ill. App. 3d at
590.
Duane's main contention on appeal is that the circuit court
erred in not allowing him to deduct from his gross income the
depreciation expenses attributable to the real estate, building,
and equipment comprising his one-quarter interest in the
partnership, because they represent "[e]xpenditures for repayment
of debts that represent reasonable and necessary expenses for the
production of income." 750 ILCS 5/505(a)(3)(h) (West 1994).
A review of the record shows that in order for Duane to
purchase Dr. Setzekorn's practice, he was required to buy a one-
quarter interest in the Dental Arts Clinic building partnership.
Based on that purchase, Duane was able to show a depreciation
expense/nonpassive loss of $18,999 on Schedule E of his 1994 tax
return. The depreciation expenses were for the real estate,
building, and equipment comprising Duane's one-quarter interest in
the building partnership. At the time of the hearing on November
27, 1995, Duane estimated his depreciation expense/nonpassive loss
to be $33,000 for 1995.
As we previously stated, the circuit court is required, when
determining net income, to deduct "[e]xpenditures for repayment of
debts that represent reasonable and necessary expenses for the
production of income." 750 ILCS 5/505(a)(3)(h) (West 1994).
However, simply because an expense falls into the category of a
debt repayment does not mean that it is necessarily deductible from
gross income for child support purposes. Merely qualifying as a
repayment of a debt is a necessary but not sufficient condition for
deductibility under section 505(a)(3)(h). Gay v. Dunlap, 279 Ill.
App. 3d 140, 148 (1996). Once this hurdle is overcome, the
proponent of the deduction must also show that the debts being
repaid are "reasonable and necessary expenses for the production of
income." Gay, 279 Ill. App. 3d at 148.
We agree with the court in Gay that the word "necessary," as
used in section 505(a)(3)(h), was intended to describe "those
expenses outlaid by a parent with a good-faith belief his or her
income would increase as a result, and which actually did act to
increase income, or would have done so absent some extenuating
circumstances." Gay, 279 Ill. App. 3d at 149. The term
"reasonable" means "[n]ot immoderate or excessive [citation]; being
or remaining within the bounds of reason: not extreme: not
excessive." Gay, 279 Ill. App. 3d at 149. The Gay court held that
in order to determine what is "reasonable", one must consider the
relationship between the amount of the expense and the amount by
which income is in good faith expected to increase as a result.
"This definition implies the same expense could be reasonable in
one context and not in another." Gay, 279 Ill. App. 3d at 149.
In 1991 and 1992, Duane worked as an independent contractor
for another dentist. Duane's 1991 Form 1099 shows that his gross
income was $34,789.52. Duane's 1992 Form 1099 shows that Duane's
gross income was $56,866.25. Duane purchased the partnership,
building, and equipment in May of 1994. Duane's 1994 tax return
shows that his gross receipts were $93,663. Duane also testified
that from January 1, 1995, through October 31, 1995, his gross
receipts were $157,301.
Hence, there is no question that Duane's purchase of the
dental practice and building partnership interest was a reasonable
and necessary expense for the production of income.
Cheryl appears to claim that Illinois law does not allow
depreciation expenses to be deducted from gross income in order to
arrive at "net income" for child support purposes.
In Posey v. Tate, 275 Ill. App. 3d 822, 826 (1995), the court
determined that depreciation is not income, but a return of
capital. The Posey court stated: "To subject depreciation
expense, which has been allowed as a deduction on a supporting
parent's tax return, to child support would be to assess such
support against capital instead of income. At the end of a capital
asset's useful life, its productive capacity is exhausted." Posey,
275 Ill. App. 3d at 826-27. Posey stated that the useful life
tables mandated by the Internal Revenue Service provide uniformity.
This is particularly true when the straight-line method of
depreciation is used, as opposed to an accelerated form, which
could distort net income, denying a child proper support. Posey,
275 Ill. App. 3d at 827. The Posey court held that the deduction
of the straight-line depreciation expense from net income by a
taxpayer who is obligated to pay child support is fair and proper,
where he has shown such deduction to be a "reasonable and necessary
expense for the production of income" and that it is "subject to a
specified repayment schedule, as contemplated by section
505(a)(3)(h)." Posey, 275 Ill. App. 3d at 827.
Since we have determined that Duane's depreciation deduction
represents a reasonable and necessary expense for the production of
income, we believe that the circuit court abused its discretion by
not allowing it as a deduction. Hence, we are reversing and
remanding this case to the circuit court with directions for it to
determine whether Duane used straight-line depreciation or the
accelerated form. Whatever form Duane actually used, he is
entitled to deduct whatever the straight-line depreciation expense
would have been for that particular year since he testified that
his payments are subject to a specified repayment schedule. In so
holding, we recognize that Partney, 212 Ill. App. 3d at 586, is
distinguishable from the instant case for the same reasons as
stated in the Posey decision.
Next, Duane claims that the circuit court erred in failing to
deduct his student loans, his tax loan, and money spent on
Danielle's behalf, exclusive of gifts, when it determined his net
income.
We agree with Duane that a student loan represents an
expenditure "for repayment of debts that represent reasonable and
necessary expenses for the production of income" and that the
circuit court abused its discretion in failing to deduct those
payments when it determined his net income. See 750 ILCS
5/505(a)(3)(h) (West 1994).
Additionally, defendant's exhibit 8 shows that Duane spent
over $1,200 on Danielle in 1994, exclusive of gifts. According to
section 505(a)(3)(h), Duane is entitled to have his net income
reduced for "reasonable expenditures for the benefit of the child
and the other parent, exclusive of gifts." If Duane did, in fact,
spend $1,200 on Danielle, exclusive of gifts, he is entitled to a
deduction for that amount.
Duane also claims that he is entitled to a deduction for a
loan that he secured through Associated Investment Corporation in
order for him to be able to pay his 1992 income taxes. We
disagree. We do not believe that this type of deduction was
contemplated by the legislature when it enacted section
505(a)(3)(h). If Duane had properly withheld his income taxes for
1992, he would not have had to take out a loan for his taxes. To
hold that his 1992 tax loan is deductible would be to allow a
supporting parent to underwithhold for income tax purposes and
perhaps use the additional money flowing into the household to
purchase a vehicle or other items. The supporting parent could
then borrow money to pay income taxes and then deduct that loan to
arrive at "net income" for child support purposes. This result
would be patently unfair, and we refuse to hold that it would be
proper.
We agree with Duane that the circuit court abused its
discretion in failing to deduct his health/hospitalization
insurance premiums when it determined his net income. Pursuant to
section 505(a)(3)(f), "`Net income' is defined as the total of all
income from all sources minus the following deductions: *** (f)
Dependent and individual health/hospitalization insurance
premiums." (Emphasis added.) 750 ILCS 5/505(a)(3)(f) (West 1994).
Duane testified that in 1994 he paid $210 in health insurance
premiums for himself. Hence, the circuit court abused its
discretion in failing to deduct that amount when it determined
Duane's net income for child support purposes.
Although neither party mentions this particular issue, we note
that it is very important that a review of Duane's 1994 income tax
return shows that he overpaid his federal income taxes by $8,712.
A review of Duane's Illinois income tax return shows that he
overpaid the State of Illinois by $794. According to sections
505(a)(3)(a) and (b), net income is to be determined by subtracting
properly calculated withholding from federal and state income
taxes. In order to determine the proper method of computing net
income, one must calculate the amount of federal and state income
tax that a person actually pays by taking into consideration the
disparity that exists between the amount of tax actually withheld
and the tax eventually paid. See Pylawka, 277 Ill. App. 3d at 732-
33. If a noncustodial parent overwithholds, thereby overpaying
income tax, that amount should be added back to his net income for
the purpose of determining his support obligation pursuant to
section 505(a) of the Act. Pylawka, 277 Ill. App. 3d at 733.
Finally, we note that Cheryl's attorney makes much of the fact
that Duane pays his current wife a salary of $30,000 per year for
services that she performs as a dental hygienist, bookkeeper, and
in general, an office manager. Cheryl has claimed that Duane was
overpaying his current wife in an effort to conceal his income for
child support purposes. A review of the circuit court's order,
however, shows the following: "This Court rejects Petitioner's
argument that additional income should be attributed to respondent
for determining child support based on the fact that Respondent is
employing his current wife *** in his dental practice and on the
allegation that the Respondent is overpaying her for the purpose of
hiding his income so as to pay a smaller amount in child support.
This Court finds there is no credible evidence to support this
allegation." Because Cheryl failed to file a cross-appeal from the
judgment attacking the trial court's finding that Duane was not
attempting to conceal his income by overpaying his current wife,
thereby reducing his income for child support purposes, we will not
address it. See Supreme Court Rule 343(b)(1) (155 Ill. 2d R.
343(b)(1)).
In light of the foregoing considerations, we reverse and
remand this case to the circuit court with directions that Duane's
income for child support purposes be further reduced by the
following items: (1) the figure representing straight-line
depreciation on the real estate, building, and equipment comprising
Duane's one-quarter interest in the building partnership; (2) the
$210 representing Duane's health insurance premiums for himself;
and (3) the amount of his actual payments on his student loans for
the year. The circuit court should also consider Duane's tax
refunds when determining his net income. In the interest of
judicial economy, since we are reversing and remanding this case to
the circuit court, we direct that the court also consider all of
the income tax information that has been submitted from 1995.
After taking all of the aforementioned factors into consideration,
the court must then determine whether there has been a "showing of
a substantial change in circumstances" warranting an increase in
child support.
Reversed and remanded with directions.
HOPKINS, J., and WELCH, J., concur.
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