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23 October 2000

IN THE

APPELLATECOURT OF ILLINOIS

THIRDDISTRICT

A.D., 2000

The plaintiff, Rodney J. Burbridge, appeals from thejudgment of the trial court denying his petition to suspend childsupport payments. On appeal, he argues that child support shouldbe suspended because he is incarcerated and therefore unable tomake the support payments. We affirm the portion of the orderdenying the plaintiff's request to void past-due child supportpayments. However, we reverse the trial court's refusal tosuspend Rodney's payments as a matter of law and remand the causefor an evidentiary hearing on the issue of modification.

The record reflects that Rodney and Tracy Burbridge weredivorced on December 16, 1988. During their marriage, the couplehad one son, Kyle, born on December 29, 1986. The divorce decree awarded the couple joint custody of Kyle and required Rodney topay $50 per week in child support.

In February of 1989, the Illinois Department of Public Aidintervened, claiming Rodney was in arrears in his child supportpayments. The trial court found the defendant in arrears in theamount of $315 and entered an order of withholding. In 1992,Rodney's weekly child support payment was increased to $57.

On January 4, 1995, Rodney was sentenced to 19 years in theDepartment of Corrections after pleading guilty to the offense ofhome invasion. Four and a half years later, Rodney petitionedthe court for a reduction in child support payments. In hispetition he requested that the court stay further payments duringthe remainder of his incarceration. He also sought an ordervoiding the past-due child support payments that had accumulatedduring his imprisonment. The trial court dismissed the petitionsua sponte. In the order, the court stated:

"Having examined the pleadings and now being fullyadvised [the court] finds that the change incircumstances being his incarceration for a criminaloffense, that said circumstance is considered, underIllinois law, to be voluntary and not a justifiablebasis to modify. Wherefore the Petition forModification is hereby dismissed."

On appeal, Rodney argues that the trial court erred indenying his petition to modify. Specifically, he contends thatthere is no per se rule in Illinois that incarceration is not ajustifiable basis to modify child support payments. Instead, heargues that a hearing must be held to consider the financialresources of the noncustodial parent before the trial courtexercises its discretion to suspend support payments.

Section 505(a)(1) of the Illinois Marriage and Dissolutionof Marriage Act sets out guidelines for determining the minimumamount of child support to be paid by a supporting parent. 750ILCS 5/505(a)(1) (West 1998). These guidelines create arebuttable presumption that the specified percentage of thesupporting parent's income represents an appropriate childsupport award. In re Marriage of Freesen, 275 Ill. App. 3d 97,655 N.E.2d 1144 (1995). In determining whether to deviate fromthe guidelines, the trial court must consider the followingfactors: (1) the financial resources and needs of the child,custodial parent, and noncustodial parent; (2) the standard ofliving the child would have enjoyed had the marriage continued;(3) the physical and emotional condition of the child, and (4)the child's educational needs. 750 ILCS 5/505(a)(2) (West 1998).

Economic reversals as a result of changes in employment orbad investments, if made in good faith, may constitute a materialchange in circumstances sufficient to warrant a modification of achild support order. In re Marriage of Eisenstein, 172 Ill. App.3d 264, 526 N.E.2d 496 (1988). In determining whether a changein circumstances of the noncustodial parent was made in goodfaith, the crucial consideration is whether the change wasprompted by a desire to evade financial responsibility forsupporting the children or otherwise jeopardize their interests. In re Marriage of Schuster, 224 Ill. App. 3d 958, 586 N.E.2d 1345(1992). Incarceration of the noncustodial parent does not ipsofacto relieve a parent of the obligation to support his child.People ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 568 N.E.2d436 (1991). Child support awards are within the sound discretionof the trial court and will not be disturbed on appeal absent anabuse of that discretion. In re Marriage of Clabault, 249 Ill.App. 3d 641, 619 N.E.2d 163 (1993).

Initially, we note that, in his petition, Rodney asked thecourt to void his past-due child support payments thataccumulated while he was in prison. In its order, the courtdeclined to do so. It is well settled that children have avested right to past-due child support. People ex rel. Sheppardv. Money, 124 Ill. 2d 265, 529 N.E.2d 542 (1988). It is alsowell established that an obligated parent may have supportpayments modified only as to installments accruing subsequent todue notice of the petition for modification. 750 ILCS5/510(a)(1998); In re Marriage of Frazier, 205 Ill. App. 3d 621,563 N.E.2d 1236 (1990). Since the trial court could not relieveRodney of his past-due child support obligations, the courtproperly dismissed that portion of his petition that requestedarrearage relief.

However, we reject the trial court's conclusion that as amatter of law incarceration is a form of voluntary unemploymentand therefore does not justify a reduction in child support. InPeople ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 568 N.E.2d436 (1991), the court expressly declined to adopt such a per serule of law, holding instead that the decision to modify childsupport in such instances is a matter best left to the discretionof the trial court. Nein, 209 Ill. App. 3d at 1089, 568 N.E.2dat 437. We believe that Nein was properly decided and see noreason to depart from its holding. In exercising its discretionwhether to reduce or suspend child support payments due to theincarceration of the obligor, the trial court should consider allrelevant factors, including the following: (1) the assets of theincarcerated parent (Pierce v. Pierce, 162 Mich. App. 367, 412N.W.2d 291 (1987)); (2) the length of incarceration (Leasure v.Leasure, 378 Pa. Super. 613, 549 A.2d 225 (1988)); (3) the reasonthe obligated parent entered prison (Foster v. Foster, 99 A.D.2d284, 471 N.Y.S.2d 867 (1984)); and (4) the potential for workrelease (see Meyer, 209 Ill. App. 3d at 1090, 568 N.E.2d at 437(Knecht, J., concurring)).

Here, the court dismissed the petition as a matter of lawwithout taking any evidence or making any factual findings. TheDepartment concedes that the court's failure to hold anevidentiary hearing was an abuse of discretion. Accordingly, wereverse that portion of the court's order denying modification ofchild support. We remand for a hearing on that issue withinstructions to the trial court to consider the relevant factors,including those mentioned herein.

For the foregoing reasons, the judgment of the circuit courtof Tazewell County is affirmed in part, reversed in part, andremanded.

Affirmed in part and reversed in part; cause remanded.

SLATER, P.J., and BRESLIN, J., concurring.