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NO. 4-02-0041

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On September 13, 2001, the trial court denied theDepartment of Public Aid's (Department) petition to modify childsupport. In December 2001, the trial court denied theDepartment's petition to reconsider. This appeal followed.

I. BACKGROUND

Plaintiff, Jason E. Anderson, was declared to be thefather of Nadia N.H. on May 13, 1999. At that time, the trialcourt ordered plaintiff to pay $36 per week for child support,which was 20% of his average weekly salary. On October 14, 1999,plaintiff filed a petition to reduce child support, alleging hewas attending college and receiving unemployment compensation. On January 22, 2001, the court reduced plaintiff's child supportto $51 every other week (or $25.50 per week), which was about 20%of plaintiff's income.

On June 14, 2001, the Department filed a petition tomodify child support, stating plaintiff's ability to pay hadincreased since the January 2001 court order. A hearing was heldon September 13, 2001, and plaintiff admitted that he wasemployed with the Macon County sheriff's department and thatdefendant's exhibit No. 1 accurately reflected his earnings. Plaintiff also acknowledged that under the terms of hiscollective-bargaining agreement, every November 30 he receives anadditional payment equal to 6% of his annual salary. TheDepartment argued that 20% of plaintiff's net pay, including 20%of this year's annual November 30 payment, would require a childsupport payment of $60 per week.

By docket entry dated September 13, 2001, the trialcourt denied the Department's petition to modify withoutexplanation. The bystander's report further does not indicatethat the court provided any reasons for denying the Department'spetition to modify.

The Department filed a motion to reconsider, statingthat the current child support of $25.50 per week was calculatedusing plaintiff's former unemployment income of $256.80 every twoweeks. The Department argued that plaintiff's current income of$590.72 every two weeks constituted a 130% increase in income andwas a substantial change in circumstances. Further, theDepartment argued that the $590.72 every two weeks did not takeinto account the over $1,300 payment plaintiff would receiveNovember 30. Finally, the Department argued that the trial courtoffered no explanation for its deviation from the statutoryguideline of 20% in setting plaintiff's child support and thatthe current $25.50 per week was only 8.6% of plaintiff's netincome.

After taking the motion under advisement, the trialcourt denied the motion to reconsider on December 11, 2001, bydocket entry. The court found that it was not required to adhereto the statutory guidelines or to state its reasons for denyingthe modification.

"Cause removed from advisement. The[c]ourt's [o]rder of September 13, 2001[,]was a denial of the [d]efendant's [p]etitionto [m]odify the support order entered onJanuary 18, 2001. In such circumstances,adherence to statutory guidelines is notmandated. In any event, the [c]ourt is notrequired to state its reasons beyond oralstatements made at the time of ruling on the[d]efendant's [p]etition to [m]odify."

This appeal followed.

II. ANALYSIS

The Department appeals, arguing (1) the trial courterred by ruling that the statutory child support guidelines neednot be followed on a petition to modify, and (2) the court abusedits discretion by failing to comply with section 505 of theIllinois Marriage and Dissolution of Marriage Act (DissolutionAct) (750 ILCS 5/505 (West 2000)) and refusing to modify childsupport. We agree and remand with directions.

A. Applicability of Section 505 of the Dissolution Act

The Department argues that section 505 of theDissolution Act applies to proceedings seeking to modify childsupport. We agree.

We review de novo whether the trial court is requiredto adhere to the Dissolution Act statutory support guidelineswhen ruling on a motion to modify child support. Hogan v. Adams,333 Ill. App. 3d 141, 146, 775 N.E.2d 217, 221 (2002). Where thestatutory language is clear and unambiguous, a court must giveeffect to the statute as written without reading into the statuteexceptions, limitations, or conditions that the legislature didnot express. In re J.W., 204 Ill. 2d 50, 62, 787 N.E.2d 747, 755(2003).

Plaintiff was found to be the father of Nadia N.H.pursuant to the Illinois Parentage Act of 1984 (Parentage Act). 750 ILCS 45/1 through 27 (West 2000). In accordance with theParentage Act, the trial court "shall" use the guidelines andstandards set forth in section 505 of the Dissolution Act indetermining the amount of child support. 750 ILCS 45/14(a)(1)(West 2000). Further, the court has continuing jurisdictionunder the Parentage Act to modify an order for child support, but"only in accordance with [s]ection 510 of the [Dissolution Act]." 750 ILCS 45/16 (West 2000).

Section 510 of the Dissolution Act provides formodification of an order for child support (1) upon the showingof a substantial change in circumstances, or (2) without thenecessity of showing a substantial change in circumstances upon ashowing of (a) an inconsistency of at least 20% between theamount of the existing order and the amount of child support thatresults from application of the guidelines specified in section505 of the Dissolution Act, or (b) a need to provide for thehealth care needs of the child under the order through health orother insurance. 750 ILCS 5/510(a) (West 2000). Section 505 ofthe Dissolution Act sets forth mandatory guidelines that thenmust be followed, unless the court makes a finding thatapplication of the guidelines would be inappropriate, afterconsidering the best interests of the child in light ofidentified relevant factors. 750 ILCS 5/505(a) (West 2000).

The clear language of the statute mandates the trialcourt to follow section 505 guidelines and either (a) awardsupport in the amount set forth in the statute or (b) make afinding that application of the guidelines was inappropriate. The court did neither. Clearly, the court erred by finding thestatutory guidelines of section 505 of the Dissolution Act do notapply to the modification of a child support order.

B. Refusal To Apply Section 505 Guidelines

and Modify Child Support Order

The Department further argues that the trial courtabused its discretion when it (1) failed to apply therequirements of section 505 of the Dissolution Act, and (2)refused to modify the child support order. We agree.

The modification of child support lies within the sounddiscretion of the trial court. Department of Public Aid ex rel.Nale v. Nale, 294 Ill. App. 3d 747, 751, 690 N.E.2d 1052, 1055-56(1998).

As stated above, section 505 of the Dissolution Actdoes apply to modifications of child support orders. Therefore,the trial court was required to determine the minimum amount ofsupport under the guidelines. Plaintiff has one child, so hemust pay 20% of his net income as the minimum amount payable inchild support. 750 ILCS 5/505(a)(1) (West 2000). Section 505does permit a deviation from the guidelines upon a finding thatapplication of the guidelines would be inappropriate (750 ILCS5/505(a)(2) (West 2000)); however, when a deviation is found tobe appropriate, section 505 provides that the court "shall statethe amount of support that would have been required under theguidelines" and "shall include the reason or reasons for thevariance from the guidelines." 750 ILCS 5/505(a)(2) (West 2000). Therefore, the court's refusal to follow the statutory guidelinesor state its reasons for deviating from the guidelines set forthin section 505 was an abuse of discretion.

Moreover, the trial court's refusal to modify childsupport was an abuse of discretion. Section 505(a) of theDissolution Act creates a rebuttable presumption that a specifiedpercentage of a noncustodial parent's income represents anappropriate child support award. Nale, 294 Ill. App. 3d at 751,690 N.E.2d at 1056. This presumption also applies inmodification proceedings. Nale, 294 Ill. App. 3d at 751-52, 690N.E.2d at 1056. Compelling reasons must be presented to overcomethe presumption that the guidelines will be applied. Nale, 294Ill. App. 3d at 752, 690 N.E.2d at 1056. And, according to theDissolution Act, modification is proper upon a showing of asubstantial change in circumstance or upon a showing of aninconsistency of at least 20% between the amount of the existingorder and the amount of support that results from application ofsection 505 guidelines. 750 ILCS 5/510(a)(2)(A) (West 2000).

The Department presented evidence that a substantialchange in circumstances existed because the source of plaintiff'sincome was no longer unemployment benefits. Plaintiff was afull-time employee of the Macon County sheriff's department, withbiweekly income of $590.72. In addition to this "substantialchange of circumstances," there was also a showing of aninconsistency of at least 20%. Under the existing support order,plaintiff pays support in the amount of $25.50 per week. However, applying the statutory guidelines of section 505, 20% ofplaintiff's current income, exclusive of the $1,300 Novemberpayment, is $59.07 or approximately $60 per week. The differencebetween $25.50 and $60 is approximately 235%.

Plaintiff admitted that exhibit No. 1, showing a netbiweekly income of $590.72 was accurate. Plaintiff furtheradmitted that he was to receive a bonus payment equal to 20% ofhis annual income every November 30, in accordance with the termsof the collective bargaining agreement. That bonus payment wasapproximately $1,300 in 2001. Applying the guidelines to thefacts, the Department argued that plaintiff should pay $60 perweek in child support. This was an increase of at least 20% overthe $25.50 per week under the current support order, and,therefore, a modification was appropriate under section510(a)(2)(A) of the Dissolution Act. 750 ILCS 5/510(a)(2)(A)(West 2000).

Upon satisfaction of one of the requirements formodification, the court was required to either follow thestatutory guidelines of section 505 of the Dissolution Act andmodify the support order, or state its reasons for declining tofollow the guideline. The court's refusal to do either in theinstant case was an abuse of discretion. We, therefore, reverseand remand with directions to modify the child support order inaccordance with sections 505 and 510 of the Dissolution Act.

III. CONCLUSION

For the reasons set forth above, we reverse and remandwith directions.

Reversed and remanded with directions.

KNECHT and APPLETON, JJ., concur.