In the Court of Appeals of the State of Illinois Melissa Porter vs John Straub - Research Paper Example

In the Court of Appeals of the State of Illinois Melissa Porter vs John Straub ISSUES PRESENTED FOR REVIEW 1. Whether the District Court erred in calculating child support by applying a 20% reduction from an unspecified net income amount. STATEMENT OF THE CASE Melissa Porter filed a Petition to Vacate An Original Order of Custody in the District Court for Cook County. On November 14, 2011, the District Court ruled in her favor. There was no Motion to Modify Child Support filed by either party. However, the District Court Judge made an Order of Child Support. Pursuant to that Order, the Judge allowed for a deviation from the child support guidelines to accommodate Mr. Straub’s new child, born of his current marriage. There is no Order of Support for that child. There was nothing in the Order addressing unpaid support. STATEMENT OF THE FACTS In October 2011, Melissa Porter sought to regain custody of her son, David, from the child’s father, John Straub. There was an order of Paternity, Custody and Support entered in a Florida court in 2008. Pursuant to that Order, Mr. Straub was ordered to pay $100 per month in child support. His payment history was poor and he was in arrears when Ms. Porter found it necessary to join the Army Reserves to supplement her income in order to properly care for the child. Ms. Porter and Mr. Straub had a verbal agreement that he would care for his son while Ms. Porter completed Basic Training in the Army Reserves. Mr. Straub was ten months in arrears in his child support obligation at the time he began caring for his son in August 2010. Ms. Porter was injured in a training accident while on active duty and spent several months recovering. Upon her return home, she sought the return of the child and Mr. Straub refused. Mr. Straub filed for custody in the Illinois courts. That filing resulted in an Order granting custody to Mr. Straub. Ms. Porter filed for an Order to Vacate that finding and the District Court for Cook County found in her favor, returning her son to her. During the course of those proceedings, the District Court made a support order, allowing a 20% deduction from the Illinois child support guideline amount to accommodate Mr. Straub’s new child of his current marriage. There was no provision for paying the arrearage. There was no inclusion for the income of Mr. Straub’s current spouse when calculating the total net income upon which the support amount should be based, nor was there a finding on the record of the guideline amount upon which the deduction would be based. When Ms. Porter objected, the judge instructed the parties to “take it up on appeal.” Appellant now appeals from the Order Modifying Support. ARGUMENT The facts of the case are not in dispute. All parties were present when the District Court judge modified the child support order to accommodate Mr. Straub’s parental obligation to his new child of his current marriage. The judge deducted 20% from the guideline amount without stating an initial child support guideline amount and the factors at law that allowed him to vary from the statutory guidelines. I. Standard of Review Of the issue presented here on appeal, the standard of review is de novo because there is no dispute as to the facts and the issue is a question of law. In re Marriage of Baumgartner, 393 Ill. App. 3d 297; 912 N.E.2d 783 (2009). See also Einstein v. Nijim, 358 Ill. App. 3d 263, 831 N.E.2d 50 (2005). A judgment is contrary to law “when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). II. Whether the District Court erred in calculating child support by applying a 20% reduction from an unspecified net income amount. According to Illinois Statute 750 ILCS 5/505, Sec. 2, “(i)f the court deviates from the (child support) guidelines, the court’s finding shall state the amount of support required under the guidelines, if determinable. The court shall include the reason or reasons for the variance.” The child support guideline minimums, found in the same statute at Section 1, state that support shall be set at 20% of the net income of the non-custodial parent. Section 3 sets out the definition of net income as “income from all sources,” minus several specified deductions such as taxes paid from that income, insurance premiums paid on behalf of the child, required Union dues, and prior support obligations. Nowhere in the list of deductions is there a provision for the support of a child born after the initial order of support. In addition, the courts may consider the income of the spouse of the non-custodial parent when calculating net income, as specified in the discovery section of the statute. 750 ILCS 5/505, Sec. 6(b)(2). The Illinois court has stated that a substantial change in circumstances must be present in order to justify a modification of support. In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 900 N.E.2d 319 (2008). See also Mann v. Hall, 962 S.W.2d 417, 420 (Mo. Ct. App. 1998) (a child support award can only be modified on a showing of changed circumstances so substantial and continuing as to make the terms of the award unreasonable, citing Buckman v. Buckman, 857 S.W. 2d 313, 316 (Mo. Ct. App. 1993). Similarly, it is not within the court’s discretion to lower or forgive accrued child support. Gregory v. Gregory, 52 Ill. App.2d 262, 202 N.E.2d 139 (1964). The arrearage accrued pursuant to a court order that explicitly stated that it would not be modified or terminated except on further order of the court, following Finley v. Finley, 75 Ill. App.3d 89, 393 N.E. 2d 1060 (1979). The Florida support order stated Mr. Straub was to pay $100 per week for the care of his son. There was no modification order after Appellee began to care for his son in August 2010 and ending in October 2011. Appellee, Mr. Straub, has made only 14 payments since November 2008, thus he was over $14,200, plus interest allowable by statue, at the time this case was filed in the District Court. The Finley court stated firmly that child support payments are not self-terminating and cannot be modified by the court unless there is a factual showing of injury or prejudice to the non-custodial parent. 75 Ill. App.3d 89. There is nothing in the record to show any factual basis to dissolve the arrears. Thus the court was required to include the arrearage in their calculations and make some suitable order for payment thereon. It is not a defense to rely on appellant’s failure to enforce the child support order. Doty v. Doty, 45 Ill. App.3d 213, 215, 359 N.E.2d 784 (1977). States following the Uniform Marriage and Divorce Act require a showing of an unanticipated change of circumstances “so substantial and continuing as to be unconscionable.” Unif. Marriage and Divorce Act § 316, 9 U.L.A. 489-90 (1987). The party seeking relief bears the burden of proof of a substantial change. In re Marriage of Singleteary, 293 Ill. App. 3d 25, 34, 687 N.E.2d 1080 (1997). The important focus under the child support guidelines is the non-custodial parent's total economic picture at the time the child support calculations are made by the court. In re Marriage of Rogers, 213 Ill. 2d at 138. 136, 820 N.E.2d 386 (2004). There is nothing in the record of court proceedings to indicate Mr. Straub sought a modification of child support based on a change in circumstances. There were no pleadings filed requesting a cancellation of child support arrears, nor any factual showing of injury or prejudice to the appellee were he to pay the amount accrued. There is no record of the District Court judge calculating Mr. Straub’s net income from all sources, including his wife’s income. There was no calculation of the arrearage nor a provision for its payment. There was no determination of the base child support amount under the statutory guidelines as required by law. There is nothing in the record to indicate that there was a substantial change in Mr. Straub’s circumstances that make the initial child support award unconscionable nor that his arrears were injurious or prejudicial. CONCLUSION Appellant asserts that the only change in circumstance for Mr. Straub was the addition of income through his spouse and the birth of a child to the marriage, for which there is no support order. Appellant further asserts that these two circumstances would serve to cancel out each other and are, therefore, not “substantial” within the meaning of the statute. This court should find that the District Court erred in calculating child support because the father did not file a Motion for Modification claiming a change in circumstances and did not present any evidence of such. The District Court did not calculate the base amount of child support from income from all sources. They also failed to make appropriate orders concerning the accrued and unpaid child support due according to the original court-ordered amount. There was no finding of a “substantial” change in circumstances to justify modification. Appellant humbly prays this court will reverse the child support modification ordered by the lower court and remand for calculation based on the statutory guidelines. Table of Authorities State Cases In re Marriage of Baumgartner, 393 Ill. App. 3d 297; 912 N.E.2d 783 (2009) Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). Buckman v. Buckman, 857 S.W. 2d 313, 316 (Mo. Ct. App. 1993) Doty v. Doty, 45 Ill. App.3d 213, 215, 359 N.E.2d 784 (1977) In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 900 N.E.2d 319 (2008) Einstein v. Nijim, 358 Ill. App. 3d 263, 831 N.E.2d 50 (2005) Finley v. Finley, 75 Ill. App.3d 89, 393 N.E. 2d 1060 (1979) Gregory v. Gregory, 52 Ill. App.2d 262, 202 N.E.2d 139 (1964) Mann v. Hall, 962 S.W.2d 417, 420 (Mo. Ct. App. 1998) Statutes 750 ILCS 5/505 Uniform Marriage and Divorce Act § 316, 9 U.L.A. 489-90 Read More