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January 28, 1999

No. 4-98-0401

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

In February 1997, petitioner, Darlene K. Demattia, requested the court dissolve her marriage to respondent, James Demattia. In December 1997, the parties entered into a parenting agreement (Agreement) whereby, among other things, they agreed to joint custody of their three children with Darlene as primary physical custodian. On January 2, 1998, the court entered a judgment of dissolution of marriage incorporating the Agreement's terms and awarding Darlene monthly child support of $714 pursuant to section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (see 750 ILCS 5/505(a)(1) (West 1996)). James appeals, arguing the trial court erred when it refused to deviate downward from the statutory guideline. We disagree and affirm.

I. BACKGROUND

The parties were married in June 1985 and had three children during their marriage: Bradley (August 14, 1987), Alex (October 12, 1992), and Eric (September 29, 1994). In February 1997, Darlene filed a petition for dissolution of the marriage. At this time, both parties worked at the Dwight Correctional Center. Darlene worked the first shift from 7 a.m. to 3 p.m., Tuesday through Saturday, while James worked the second shift from 3 p.m. to 11 p.m., Monday through Friday. The parties earned substantially similar incomes.

In June 1997, Darlene petitioned the court for temporary relief, requesting custody of the children and child support. Her petition alleged James moved out and the children lived with her in the marital residence. In July 1997, the court granted Darlene temporary custody and child support, withholding $756 per month from James' paycheck.

At a November 1997 hearing, the parties presented the court with the Agreement. Besides dividing the marital property, the Agreement provided the following: (1) the parties had joint custody of the children; (2) Darlene was the primary physical custodian; (3) each party had equal authority over the children's education, religion, and health; (4) each party had equal access to the children's medical and educational records; and (5) James was required to maintain the children's medical insurance and share all medical expenses equally.

Further, the Agreement provided James with the following visitation rights: (1) Tuesday through Friday from 6 a.m. to 2 p.m., which accommodated Darlene's work schedule; (2) every other weekend from 10 a.m. on Saturday to 7 p.m. on Sunday; and (3) the Saturdays Darlene worked from 6 a.m. to 4 p.m. Holidays and birthdays were divided equally and each party received 30 days of vacation time throughout the year.

After revealing the details of the Agreement to the court, James argued his child support obligation should be less than the statutory guideline based on his role as day-care provider four days per week. The court concluded James' extended visitation time did not require a downward deviation from the statutory guideline. James' monthly gross income was $3,034, with monthly deductions for taxes, social security, insurance, and union dues totaling $802.40. Thus, the court set James' child support at 32% of his net income of $2,231.60, or $714 per month. See 750 ILCS 5/505(a)(1) (West 1996). The court divided tax exemptions for the children equally between the parties.

In December 1997, the parties filed the Agreement with the court. In January 1998, the court entered the judgment of dissolution of marriage, incorporating its rulings with the Agreement. In February 1998, James filed a motion to reconsider, which included updated financial information. In April 1998, the court denied the motion. This appeal followed.

II. ANALYSIS

On appeal, James contends his child support obligation should be reduced below the statutory guideline because he and Darlene both provide the children's primary care. See In re Marriage of Duerr, 250 Ill. App. 3d 232, 238, 621 N.E.2d 120, 125 (1993); In re Marriage of Keown, 225 Ill. App. 3d 808, 813, 587 N.E.2d 644, 647 (1992); In re Marriage of Flemming, 143 Ill. App. 3d 592, 599, 493 N.E.2d 666, 671 (1986). He asserts the court erred as a matter of law by refusing to deviate downward from the 32% statutory guideline (see 750 ILCS 5/505(a)(1) (West 1996)).

Because James initially contends the court erred as a matter of law, we review this contention de novo. See Gay v. Dunlap, 279 Ill. App. 3d 140, 145, 664 N.E.2d 88, 92 (1996). We find the law enunciated in Duerr, Keown, and Flemming inapplicable because those cases involve instances when each party was the primary custodian for at least one of their children. In these "split custody" cases, the Act's statutory guidelines are not necessarily applicable. See Keown, 225 Ill. App. 3d at 813-14, 587 N.E.2d at 647-48. Here, however, the parties agreed to joint custody of the children with Darlene as the primary physical custodian. She is primarily responsible for the children and the guidelines apply.

Section 505 of the Act creates a rebuttable presumption the specified percentage of a noncustodial parent's income represents an appropriate child support award. See In re Marriage of Charles, 284 Ill. App. 3d 339, 346-47, 672 N.E.2d 57, 63 (1996). This presumption cannot be negated unless compelling evidence shows reason for the deviation. See In re Marriage of Stanley, 279 Ill. App. 3d 1083, 1085, 666 N.E.2d 340, 341 (1996). Relevant factors for the court to consider include, but are not limited to, (1) the financial resources of the children; (2) the financial resources and needs of the custodial parent; (3) the children's standard of living during the marriage; (4) the physical and emotional condition of the children and their educational needs; and (5) the financial resources and needs of the noncustodial parent. See 750 ILCS 5/505(a)(2) (West 1996); In re Marriage of Phillips, 244 Ill. App. 3d 577, 594, 615 N.E.2d 1165, 1178 (1993).

Section 505 does not include a provision addressing joint custody cases when the noncustodial parent receives extended visitation rights with the children. Cf. Remson v. Remson, 672 So. 2d 409, 414 (La. App. 1996) (applying La. Rev. Stat. Ann.