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August 3, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In September 1995, the trial court entered a judgmentdissolving the marriage between petitioner, Grant A. Baylor, andrespondent, Kim K. Baylor, and incorporating the parties' maritaland joint-parenting agreements. Those agreements provided that(1) the parties would share joint custody of their child, Blake(born November 19, 1993); (2) Blake would live with Grant; (3)Kim would have reasonable visitation; and (4) Kim was financiallyable to pay child support. (The record does not show that thedissolution judgment set a child support amount.)

In November 1999, Grant filed a petition requestingthat the trial court (1) order Kim to pay reasonable childsupport and (2) terminate joint custody. In March 2000, Kimfiled a counterpetition seeking custody of Blake and childsupport. Following a June 2000 hearing, the court (1) deniedGrant's petition to terminate joint custody; (2) denied Kim'spetition to change custody; (3) modified Kim's visitation schedule; and (4) ordered Kim to pay $350 per month in child support. In October 2000, Grant filed a motion to reconsider, which thecourt later denied.

Grant appeals, arguing only that the trial court erred by failing to include Kim's military allowances in calculatingher net income to determine her child support obligation. Wereverse and remand with directions.

The evidence presented at the June 2000 hearing showedthe following. Kim was a noncommissioned officer in the UnitedStates Air Force. In addition to her gross annual base pay,which totaled $21,960, Kim earned approximately $2,678 annuallyfrom nonmilitary part-time work. She also received certainmilitary allowances to supplement her off-base housing and otherliving expenses. Those military allowances, which totaled$9,876.92 annually, were not subject to federal income tax.

Following the hearing, the trial court took the matterunder advisement. In September 2000, the court entered an orderproviding, in pertinent part, as follows:

"Child support should be set at $350 permonth. This amount slightly exceeds theguideline amount [(750 ILCS 5/505(a)(1) (WestSupp. 1999) (effective June 1, 2000))] basedupon Kim Baylor's net income of $20,000 peryear from military pay and outside employment."

In October 2000, Grant filed a motion to reconsider,arguing, inter alia, that (1) in In re Marriage of McGowan, 265Ill. App. 3d 976, 980, 638 N.E.2d 695, 698 (1994), the FirstDistrict Appellate Court held that military allowances should beincluded in calculating a noncustodial parent's net income forchild-support purposes; and (2) the trial court should haveincluded Kim's military allowances in its calculation of her netincome. Following a hearing, the court denied Grant's motion,stating, in pertinent part, as follows:

"With respect to the net income,[Grant's counsel] has raised a very goodpoint. However, I just don't believe it's apoint that requires me to get into the typesof calculations that I think are far beyondmy abilities insofar as making those determinations of net income and things of thatnature."

This appeal followed.

Initially, we address Kim's motion requesting that weaward her reasonable attorney fees incurred for this appeal,which was taken with this case. This court is without jurisdiction to award attorney fees. In re Marriage of Emery, 179 Ill.App. 3d 744, 752, 534 N.E.2d 1014, 1019 (1989); In re Marriage ofStockton, 169 Ill. App. 3d 318, 329, 523 N.E.2d 573, 581 (1988). Kim should have addressed the issue of appellate attorney fees tothe trial court. See In re Marriage of Talty, 166 Ill. 2d 232,240, 652 N.E.2d 330, 334 (1995) (section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS5/508(a)(3) (West 1998)) "expressly authorizes a circuit court tomake a prospective award of attorney fees to a party for thedefense of an appeal").

Grant argues that the trial court erred by failing toinclude Kim's military allowances in calculating her net incometo determine her child support obligation. We agree.

This issue involves the application of law to undisputed facts; therefore, our review is de novo. See Gay v.Dunlap, 279 Ill. App. 3d 140, 145, 664 N.E.2d 88, 92 (1996)(reviewing de novo whether the trial court should have allowedcertain deductions from the noncustodial parent's gross income todetermine his child support obligation).

The starting point for determining a child supportaward is to arrive at the noncustodial parent's net income. 750ILCS 5/505 (West Supp. 1999) (effective June 1, 2000); In reMarriage of Benish, 273 Ill. App. 3d 955, 958, 653 N.E.2d 55, 57(1995). Section 505(a)(3) of the Act defines "net income" as"the total of all income from all sources," minus the followingdeductions: (1) federal income tax; (2) state income tax; (3)social security payments; (4) mandatory retirement contributionsrequired by law or as a condition of employment; (5) union dues;(6) dependent and individual health insurance premiums; (7) priorchild support obligations or maintenance actually paid under acourt order; and (8) "[e]xpenditures for repayment of debts thatrepresent reasonable and necessary expenses for the production ofincome, medical expenditures necessary to preserve life orhealth, reasonable expenditures for the benefit of the child andthe other parent, exclusive of gifts." 750 ILCS 5/505(a)(3)(West Supp. 1999) (effective June 1, 2000).

In McGowan, 265 Ill. App. 3d at 978, 638 N.E.2d at 697,the First District Appellate Court held that the plain, broadlanguage of section 505 of the Act "must be given effect toinclude military allowances in the computation of child support." In so holding, the McGowan court reasoned as follows: (1) theexemption of military allowances from federal income tax was notsufficient to shield the allowances from inclusion in a party'snet income; (2) whether military allowances "can be reached bygarnishment is also not appropriate in considering what isincluded in the child support formula" (see Rose v. Rose, 481U.S. 619, 635, 95 L. Ed. 2d 599, 614, 107 S. Ct. 2029, 2039(1987) ("while it may be true that [veterans' disability benefits] are exempt from garnishment or attachment while in thehands of the [a]dministrator, we are not persuaded that oncethese funds are delivered to the veteran a state court cannotrequire that veteran to use them to satisfy an order of childsupport"); and (3) if the legislature had intended to defineincome for child support purposes in a manner parallel to theincome tax definition, then the language of section 505 of theAct would so indicate. McGowan, 265 Ill. App. 3d at 979, 638N.E.2d at 697-98.

We agree with McGowan and thus conclude that the trialcourt erred by failing to include Kim's military allowances incalculating her net income. Accordingly, we reverse the trialcourt's child support determination and remand for furtherproceedings. On remand, the court should do the following, whichare the steps that the court should have taken when it firstaddressed the issue of child support:

(1) Determine Kim's net income, pursuant to section505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West Supp. 1999)(effective June 1, 2000)), including her military allowances. Although not statutorily required, it would be desirable for thecourt to state how it calculated net income.

(2) Determine the amount of child support that thestatutory guidelines would require Kim to pay. See 750 ILCS5/505(a)(1) (West Supp. 1999) (effective June 1, 2000) (under theAct, a presumption exists that the stated percentage of thenoncustodial parent's income is an appropriate level of support;the guideline amount for one child is 20% of the noncustodialparent's net income).

(3) Indicate either that (a) it is ordering Kim to paychild support based on the statutory guidelines, or (b) afterconsidering relevant factors under section 505(a)(2) of the Act(see 750 ILCS 5/505(a)(2) (West Supp. 1999) (effective June 1,2000)), including Blake's needs and resources, the needs andresources of both parties, and the standard of living Blake wouldhave enjoyed had the marriage not been dissolved, it is deviatingfrom the statutory guidelines. If the court deviates from theguidelines, it must explicitly state the reasons why it haschosen to do so. 750 ILCS 5/505(a)(2) (West Supp. 1999) (effective June 1, 2000); see In re Marriage of Stanley, 279 Ill. App.3d 1083, 1085, 666 N.E.2d 340, 341 (1996).

As a final matter, we note that the trial court erredby failing to follow McGowan. "It is the absolute duty of thecircuit court to follow the decisions of the appellate court." In re A.A., 181 Ill. 2d 32, 36, 690 N.E.2d 980, 982 (1998). Thiswas not a case in which the trial court was faced with conflicting decisions from various appellate districts, and, in theabsence of controlling authority from its home district, was freeto choose between the decisions of other appellate districts. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540,605 N.E.2d 539, 542 (1992). Instead, the only Illinois court torule upon the issue of whether military allowances should beincluded in the calculation of net income for child supportpurposes was the First District Appellate Court in McGowan. Accordingly, the trial court should not have disregarded the lawof the state as set forth in McGowan. See People v. Harris, 123Ill. 2d 113, 128, 526 N.E.2d 335, 340 (1988) ("It is fundamentalin Illinois that the decisions of an appellate court are bindingprecedent on all circuit courts regardless of locale"). If atrial court "entertains genuine doubt about the continued vitality of a reviewing court decision," the proper manner in which toproceed in a complex or protracted case is to rule in accordancewith existing law and enter a Rule 304(a) finding (155 Ill. 2d R.304(a)) or certify the question for interlocutory appeal underRule 308 (155 Ill. 2d R. 308). State Farm, 152 Ill. 2d at 540,605 N.E.2d at 542. "Because of our system of precedent[,] thecircuit court is not, however, free to disregard binding authority." In re R.C., 195 Ill. 2d 291, 298, 745 N.E.2d 1233, 1238(2001).

For the reasons stated, we affirm the trial court'sjudgment in part, reverse in part, and remand with directions.

Affirmed in part and reversed in part; cause remandedwith directions.

McCULLOUGH, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent. I disagree that the trialcourt erred in awarding child support, and I would affirm. Ialso disagree that attorney fees may not be awarded after anappeal is resolved and that by failing to seek prospectiveattorney fees Kim has waived any right to seek attorney fees.

In Talty, the appellee sought prospective attorney feesfrom the appellant. Talty, 166 Ill. 2d at 235, 652 N.E.2d at332. The appellant argued that the correct procedure in awardingappellate fees was for the circuit court to make the award afterthe appeal had been resolved, citing In re Marriage of Divarco,167 Ill. App. 3d 1014, 1022, 522 N.E.2d 619, 624 (1988), rev'd inpart on other grounds, sub nom. Divarco v. Gilleran, 122 Ill. 2d572, 528 N.E.2d 986 (1988). Talty, 166 Ill. 2d at 241-42, 652N.E.2d at 335. The supreme court held that prospective fees werepossible under a recent amendment authorizing the circuit courtto enter an award "for 'the purpose of enabling a party lackingsufficient financial resources to obtain or retain legal representation, expected to be incurred.'" Talty, 166 Ill. 2d at 242,652 N.E.2d at 335, quoting Pub. Act 85-357,