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5 September 2000

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The parties were married in 1979. They had two childrentogether, Adam, born in 1981, and Amy, born in 1984. The circuitcourt dissolved their marriage in 1988. A settlement agreementincorporated into the judgment awarded petitioner custody of thechildren and required respondent to pay $75 weekly as childsupport. The parties later agreed to two increases in childsupport so that when the present petition was filed respondentwas paying $96 per week.

Both parties have since remarried. At the time of thedissolution, respondent was employed as an exterminator with histake-home pay averaging $1,250 per month. Petitioner was and isa self-employed child-care provider. In 1992, respondent startedhis own exterminating business. In 1998, he purchased a new,$28,000 truck for his business. According to his 1998 tax return,the enterprise had gross receipts of $28,685 and earned a netprofit of $11,187. Among the deductions was $4,279 fordepreciation, which respondent testified was for the truck. In1997, the business earned a net profit of $8,352. Respondentadmitted filling out a loan application in which he stated thathis monthly net income was $3,600. He stated that he did so inorder to qualify for a lower interest rate.

In January 1999, petitioner filed a petition to increasechild support. At the hearing, petitioner testified that thechildren's expenses had increased. Specifically, she was payingfor car insurance for Adam, the children ate more, their clothescost more, and they had additional expenses for social activitiesand optical and dental services.

At the conclusion of the initial hearing, the courtquestioned respondent's credibility because he had admittedlymisstated his income in a loan application. The court continuedas follows:

"He reports an income of $11,187. There are winos andbustouts that appear in this court on Thursday morning thatmake that kind of money and they get hired, not that you'rein that category. But, however, there is no reason thatthese children should suffer while you drive around in a newtruck at a deadend job."

The court took petitioner's petition under advisement,temporarily continuing respondent's child support obligation at$96 per week. The court continued the matter until July 15 andordered respondent to apply for employment with at least 10firms. The court stated as follows:

"A man of your health and your stature and your ability cancertainly make more in today's labor market than $11,000 ayear but I'm not going to sit here and have your childrensuffer because you choose to become involved in such anenterprise that produces so little."

The court denied respondent's motion to reconsider orclarify its order, stating:

"If he wants to have a deadend job that's fine but I'm goingto set the support commensurate with his ability. You know,he wants to have a hobby farm going around and sprayingroaches for eight hundred bucks a month that's his right,but he's not going to do it at the expenses [sic] of hischildren."

On July 15, respondent reported that he had not conducted ajob search. Petitioner's attorney argued that respondent'ssupport obligation should be based on the income he listed in hisloan application. Counsel argued that the guideline amount--25%of net income for two children--applied to the $3,000 (actually$3,600) monthly income listed in the loan application wasapproximately $170 per week. Respondent's attorney replied thatthe court had already found respondent's income to be as statedin his tax returns.

The court stated:

"Well, as I recall it was not necessarily a findingthat his income was as he stated. It was a finding that heeither lied in court or lied on a loan application, eitherone of which is a felony under the laws of the State ofIllinois. Further by his own testimony he indicated that hebought a brand new truck to ride around town performing adeadend business that nobody wanted to pay for and that heonly according to his testimony netted about nine grand ayear. And under the circumstances I advised the defendant[sic] that I didn't think that his children should bear thebrunt of his new truck so that he could ride around doingnothing. *** As far as I'm concerned we have an individualhere that is either misrepresenting his income or willfullyrefuses to go to work and support his children even thoughhe is able to do so."

The court increased respondent's child support obligation to$170 retroactive to the date the petition was filed. Respondentperfected this appeal.

Respondent first contends that the court violated hisconstitutional right to pursue the career of his choice. Thisargument is easily disposed of because the court did no suchthing. The court specifically stated that if respondent wants tocontinue working as an exterminator "that's fine" and "that's hisright." The court merely required respondent to pay a greateramount of child support. Respondent may be able to pay thisadditional amount because his income is actually higher than whathe reported for tax purposes. He may be able to pay anadditional amount by working more diligently at his current job,by supplementing his income with part-time work, by cuttingexpenses elsewhere, by using savings, or by winning the lottery. All of these options would permit respondent to meet his childsupport obligation without abandoning his chosen career. Thus,the cases respondent cites, dealing with an expectancy of futureemployment, simply do not apply.

Respondent next contends that there was no evidence ofchanged circumstances to justify an increase in child support. Achild support judgment can be modified only upon a showing of asubstantial change in circumstances. In re Marriage of Pylawka,277 Ill. App. 3d 728, 731 (1996); In re Marriage of Stockton, 169Ill. App. 3d 318, 325 (1988). The party seeking the modificationmust show both a change in the children's needs and in thenoncustodial parent's ability to pay. Pylawka, 277 Ill. App. 3dat 731; Dull v. Dull, 73 Ill. App. 3d 1015, 1019 (1979). Thesetting or modification of child support is within the trialcourt's discretion and will not be reversed absent an abuse ofthat discretion. In re Marriage of Mitteer, 241 Ill. App. 3d217, 227 (1993).

Respondent admits that his earnings have increased everyyear since he started his business. His tax returns show thatthe business netted more money in 1998 than in previous years. Therefore, the first element of changed circumstances issatisfied. Moreover, an increase in children's needs can bepresumed on the basis that they have grown older and the cost ofliving has risen. Pylawka, 277 Ill. App. 3d at 731. Here,petitioner testified that the children's expenses had increasedsince the most recent modification of the child support order. Specifically, she said that the children ate more, their clothescost more, and they had additional expenses for socialactivities. Contrary to respondent's argument, petitioner wasnot required to list specific dollar amounts for each expenseitem. Evidence existed for the court to conclude that there hadbeen a substantial change of circumstances.

Respondent's third contention is that the trial court lackedthe authority to order him to seek other employment. Hecomplains that the court could not order him to conduct a jobsearch. This issue is essentially moot because the court neverattempted to enforce its order that respondent apply to 10companies. When respondent simply ignored the job-searchrequirement, the court did not hold him in contempt or undertakeany other coercive measure. Thus, respondent may not complainabout this order. See In re Marriage of Ruchala, 208 Ill. App.3d 971, 977 (1991) (contempt order not final and appealable untilcourt imposes sanction).

Respondent contends, however, that although the court didnot seek to enforce the job-search order, the court continuedwith that line of thinking by raising child support to a levelcommensurate with the income the court thought respondent shouldbe making. Respondent argues that the court could not coerce himinto looking for another job merely because it disapproved of hischosen field of endeavor. We disagree. Although we have foundno Illinois case precisely on point, courts' authority to compelparties to family law proceedings to seek more lucrativeemployment, or to pay support at a level as if they had done so,is well established.

A party seeking to decrease his or her child supportobligation based on a voluntary change in employment mustdemonstrate that the action was taken in good faith and not toevade financial responsibility to his or her children. In reMarriage of Maczko, 263 Ill. App. 3d 991, 994 (1992); Mitteer,241 Ill. App. 3d at 227. Absent good faith, the voluntarytermination of employment does not warrant an abatement of childsupport. In re Marriage of Dall, 212 Ill. App. 3d 85, 95-96(1991).

In a similar vein, a party seeking maintenance has anaffirmative obligation to seek suitable employment. In reMarriage of Dunseth, 260 Ill. App. 3d 816, 833 (1994). In In reMarriage of Cantrell, 314 Ill. App. 3d 623 (2000), this courtreversed the trial court's order continuing petitioner'smaintenance, holding that petitioner had not taken sufficientsteps to become self-sufficient. Since the dissolution,petitioner had worked as a free-lance photographer and graphicartist but had lost money every year. Cantrell, 314 Ill. App. 3dat 626. The court noted that petitioner had a bachelor's degree,was employable, and had no apparent health impairments that mightprevent her from working. Cantrell, 314 Ill. App. 3d at 630.

Similarly, in In re Marriage of Schuster, 224 Ill. App. 3d958 (1992), the husband had worked as an engineer and anattorney. He left the latter employment to become a commoditiestrader but after two years had not made any money. This courtaffirmed the trial court's denial of the husband's request formaintenance, noting that "[r]egardless of whether he enjoyed itor not," respondent had been able to work consistently. Schuster, 224 Ill. App. 3d at 971.

Cases from other jurisdictions have held that a court mayimpute additional income to a child support obligor who isvoluntarily underemployed. Most nearly on point is In reMarriage of Resch, 381 N.W.2d 460 (Minn. App. 1986). There, thehusband had been a machinist but quit because of the stress andworked as a self-employed carpenter. He testified he would haveno trouble finding a job as a machinist at $13 per hour. Thecourt held it was proper to look beyond the husband's actualearnings to his earning capacity and "to disregard any inabilityto pay which is voluntary on the part of the obligor." Resch,381 N.W.2d at 462, citing Hopp v. Hopp, 279 Minn. 170, 175-77,156 N.W.2d 212, 217-18 (1968). The court went on to state:

"A trial court cannot direct a person to work at aspecific job against his will. That does not prohibit it,however, from directing a person to pay support commensuratewith a wage he could earn if he sought employment in anoccupation for which he is trained and has the presentability to perform." Resch, 381 N.W.2d at 462.

In In re Marriage of McCord, 910 P.2d 85, 89 (Colo. App. 1995),the court held that if a parent is voluntarily underemployed,child support should be based on his or her potential income. See also In re Marriage of Marshall, 781 P.2d 177, 179 (Colo.App. 1989); Barac v. Barac, 684 S.W.2d 869, 870-71 (Mo. App.1984); In re Marriage of Curran, 26 Wash. App. 108, 110-11, 611P.2d 1350, 1351 (1980).

All of these cases refute respondent's implicit contentionthat the trial court is powerless to set child support based onan amount beyond his actual current income. Rather, if a courtfinds that a party is not making a good-faith effort to earnsufficient income, the court may set or continue that party'ssupport obligation at a higher level appropriate to the party'sskills and experience.

Here, respondent testified during the original dissolutionproceedings that he worked for an exterminating company. Hetestified that his take-home pay averaged $1,250 a month. Thisequates to $15,000 yearly, or more than respondent claims to havemade during any year since he became self-employed. Merelyadjusting for inflation shows that respondent is capable ofmaking considerably more than he now claims to be earning.

The trial court's comments, which we have quoted extensivelyabove, make abundantly clear that the court found that respondentwas not acting in good faith. The court strongly suggested thatrespondent was more interested in being his own boss and inbuying a new truck for himself than in supporting his children.

While a party's desire to remain self-employed is notinsignificant, the above cases show that the interests of theother spouse and the children may sometimes take precedence. Thespouses in Resch, Cantrell, and Schuster may well have beenforced to give up their self-employment and go to work forsomeone else. Of course, the spouses in Cantrell and Schusterwere affirmatively seeking maintenance, while respondent has hadan obligation thrust upon him. However, this case is similar tothose cited in that respondent is asking his ex-wife to shouldera disproportionate share of the burden of supporting the parties'children so that respondent can remain self-employed. Supportinga child is the joint responsibility of both parents. In reMarriage of Rogliano, 198 Ill. App. 3d 404, 413 (1990). Respondent may not ask petitioner to work harder so that he canenjoy the benefits of self-employment.

The only case respondent cites for the contention that thecourt lacked the authority to compel him to seek other employmentis readily distinguishable. In In re Marriage of Page, 162 Ill.App. 3d 515 (1987), this court held that the court erred inordering the respondent-husband to apply for jobs where, althoughhe was behind in child support, no petition for a rule to showcause was pending, the court had already found that his failureto pay was not wilful, and it appeared that the husband wasworking at least part-time. Page, 162 Ill. App. 3d at 519. Here, the court did not enforce its order that respondent applyto 10 companies but merely set child support at a figure itthought was reasonable.

Respondent next contends that the court failed to state itsreasons for deviating from the statutory guidelines. TheIllinois Marriage and Dissolution of Marriage Act (the Act)provides a presumption that a stated percentage of thenoncustodial parent's income is an appropriate level of childsupport. The guideline amount for two children is 25% of thepayor spouse's net income. 750 ILCS 5/505(a)(1) (West 1998). The court is to apply the guideline amount unless it finds thatthe application of the guidelines is inappropriate afterconsidering various factors, including the children's needs andresources, the needs and resources of both parents, and thestandard of living the children would have enjoyed had themarriage not been dissolved. 750 ILCS 5/505(a)(2) (West 1998). The statutory guidelines also apply to modifications of childsupport. Stockton, 169 Ill. App. 3d at 326.

The court must make express findings if it deviates from theguidelines. Pylawka, 277 Ill. App. 3d at 731-32; In re Marriageof Morgan, 219 Ill. App. 3d 973, 974 (1991). However, therequirement of express findings does not mean that the findingsmust be written or incorporated into the court's order. In reMarriage of Burris, 263 Ill. App. 3d 495, 499 (1994). Thecourt's oral comments may satisfy the requirement of specificfindings. In re Marriage of Minear, 287 Ill. App. 3d 1073, 1080(1997), aff'd, 181 Ill. 2d 552 (1998).

Here, the court's comments show the reasons for itsdecision. The court stated its belief that respondent was notmaking as much money as he was capable of making. Also,respondent had bought a new truck that was not justified by anybusiness necessity.

Additionally, the court strongly implied that respondent wasnot being truthful about his income. The court referred torespondent's loan application in which he stated his income was$3,600 per month. Also, respondent testified that his net incomein 1998 was approximately $11,000. He said that his wife earnedan additional $2,600. His financial affidavit listed expenses of$2,200 per month, or approximately $26,000 per year. Yetrespondent stated that he and his wife were able to meet theirmonthly expenses with no shortfall. There was thus reason forthe court to be skeptical of respondent's testimony.

In determining net income, the court may consider theparty's credibility and forthrightness in disclosing his or herincome. In re Marriage of Karonis, 296 Ill. App. 3d 86, 92(1998). If the court is unable to determine the supportobligor's income, it can award an amount that is reasonable underthe circumstances. In re Marriage of Takata, 304 Ill. App. 3d85, 96 (1999); 750 ILCS 5/505(a)(5) (West 1998).

Because respondent's income was difficult to determine, thecourt was justified in eschewing the strict application of thestatutory guidelines and setting support in a reasonable amount. In this context, we note that respondent's argument is based on anet income of about $11,000. His tax returns show gross receiptsof $28,000 in 1998. Respondent's deductions included some thatare not proper under the Act.

The Act contains a definition of "net income." See 750 ILCS5/505(a)(3) (West 1998). That definition, rather than theInternal Revenue Code, controls the determination of income forchild support purposes. In re Marriage of Davis, 287 Ill. App.3d 846, 852 (1997). Respondent's tax return included anunexplained deduction of more than $4,000 for depreciation on histruck. An unexplained depreciation deduction need not beconsidered in determining a party's available income. In reMarriage of Minear, 181 Ill. 2d 552, 560 (1998). Although thededuction may have been proper for tax purposes, it representsadditional funds available to respondent. Thus, even acceptinghis testimony at face value, his actual disposable income ishigher than indicated.

Respondent finally argues that the court abused itsdiscretion in making the increase retroactive to the date thepetition was filed. Section 510(a) of the Act (750 ILCS 5/510(a)(West 1998)) provides that the trial court may retroactivelymodify a child support award to the date of the filing of thepetition to modify. In re Marriage of Boland, 308 Ill. App. 3d1063, 1067 (1999). The record here reveals no abuse ofdiscretion. Although respondent complains that petitioner'sdelay in responding to discovery slowed the proceedings, he doesnot explain how this prejudiced him. Respondent does not contendthat he did not receive notice of the petition within a shorttime after it was filed. The proceedings were continued numeroustimes and the record does not show the reason for the delay. Under the circumstances, we cannot find that the court abused itsdiscretion in making the increase retroactive to the date thepetition was filed.

The judgment of the circuit court of Stephenson County isaffirmed.

Affirmed.

BOWMAN, P.J., and HUTCHINSON, J., concur.