Find Legal Information

27 June 2000

PRESIDING JUSTICE COOK delivered the opinion of thecourt:

Plaintiff Tamra S. Slagel had three children by hermarriage. On the death of her husband, Slagel received lifeinsurance proceeds in the amount of $215,341.76, which sheinvested.

Sometime later, Slagel began a relationship withdefendant, Dale Wessels. As a result of that relationship, twochildren were born. This litigation began in 1995, when Slagelfiled a petition to determine the existence of a father-childrelationship between Wessels and the two children. Custody ofthe two children was originally awarded to Slagel, and Wesselswas ordered to pay child support.

On July 30, 1997, the parties entered into an equal-time joint-custody agreement, which provided that the childrenwould reside with Wessels for a portion of each week and thenwith Slagel for the remainder of the week. Under the agreement,beginning January 1, 1999, the children were to reside withWessels for six months, and then with Slagel for the next sixmonths. Under the agreement, Wessels was required to pay 25% ofhis net income as child support while the children were withSlagel, and Slagel was required to pay 25% of her net incomewhile the children were with Wessels. "To accomplish that, theparties shall calculate the net difference on a calendar yearbasis, and the parent having the greater child support obligationshall pay to the other the net difference, on a bi[]weeklybasis."

In an order entered November 3, 1999, the trial courtdetermined that Wessels had biweekly net take-home pay of$1,312.50 ($34,125 annually), and his biweekly child support atthe 25% level would be $328 ($8,528 annually). Slagel received asocial security payment of $536 per month ($6,432 annually) andhad annual income of approximately $4,000. She also receivedincome on the $215,341.76 of investments, estimated to be about$12,920.51 annually. Although Slagel "reports all of the incomefrom the investments on her income tax return, and theinvestments are titled in [Slagel's] name alone," the trial courtconcluded that Slagel was receiving only one-fourth of theinvestment income under section 505(a)(3) of the IllinoisMarriage and Dissolution of Marriage Act (Dissolution Act), whichdefines net income as "the total of all income from all sources,minus" certain specified deductions. 750 ILCS 5/505(a)(3) (West1998).

The trial court based this conclusion on Slagel'stestimony, which it summarized as follows:

"that she views the investments as being one-

fourth hers and that with respect to the other

three-fourths, [Slagel] testified that it was

her intention to hold same for the children's

education. [Slagel] testified that she used

the income from the investment to make the

house payment and to pay real estate taxes,

and that on one occasion she used principal

to purchase a vehicle, [Slagel] testifying that

all of said expenditures she viewed as bene-

fitting both her and the children."

The trial court concluded that Slagel's annual net income,consisting of the social security income, the $4,000 in earnings,and one-fourth of the income from investments, was $13,622; 25%of that amount was $3,405; and the annual difference in supportto be paid by Wessels to Slagel was $5,113. Wessels wasaccordingly ordered to pay child support of $196 biweekly for theentire year.

Wessels appeals, arguing that the trial court abusedits discretion in not taking into consideration Slagel's incomefrom all sources in setting child support. The standard ofreview for a current child support award is whether the award isan abuse of discretion or the factual predicate for the decisionis against the manifest weight of the evidence. In re Parentageof Janssen, 292 Ill. App. 3d 219, 223, 685 N.E.2d 16, 19 (1997). The trial court has wide discretion in awarding child support andits decision will not be reversed by a court of review absent anabuse of discretion. In re Marriage of Potts, 297 Ill. App. 3d110, 114, 696 N.E.2d 1263, 1266 (1998).

Section 505 of the Dissolution Act (750 ILCS 5/505(West 1998)) addresses issues of child support. A parent owing aduty of support is required to "pay an amount reasonable andnecessary" for the support of that parent's children. 750 ILCS5/505(a) (West 1998) (West 1998). Section 505 establishesguidelines for the minimum amount of support to be paid. Thesetting of child support is, however, a judicial function. Thecourt may deviate from the guidelines, but if it does so it mustmake a finding "that application of the guidelines would beinappropriate" after considering relevant factors, includingthose listed in section 505. 750 ILCS 5/505(a)(2) (West 1998). A court that deviates from the guidelines must state reasons forthe variance and must state the amount that would have beenrequired under the guidelines.

The section 505 guidelines are expressed as apercentage of the supporting party's net income. "Net income" isdefined as "the total of all income from all sources," minuslisted deductions for income taxes, social security (FICA)payments, mandatory retirement contributions, union dues, healthinsurance premiums, and certain reasonable and necessary expensesfor the production of income. 750 ILCS 5/505(a)(3) (West 1998). The section seems designed to answer the questions that arisewith a parent-employee who receives a paycheck. There is also alisted deduction for "[p]rior obligations of support ormaintenance actually paid pursuant to a court order." 750 ILCS5/505(a)(3)(g) (West 1998).

The guidelines are a useful method of insuring thatchild support is set in an amount that is reasonable andnecessary. Section 505, however, does not provide comprehensiverules for every conceivable situation. It is recognized thatthere are times when it will be improper for the trial court toapply the guidelines. For example, in "split custody" cases,where each parent is the custodian of at least one of theparties' children, section 505's guidelines are not necessarilyapplicable. In re Marriage of Demattia, 302 Ill. App. 3d 390,393, 706 N.E.2d 67, 69 (1999). If a man has three children bythree different marriages, does he pay child support at the rateof 60% (3 x 20%) or at the rate of 32%? 750 ILCS 5/505(a)(1)(West 1998). The guidelines do not provide an answer. Theguideline amounts also have some inadequacies where thenoncustodian is a high-income earner or a low-income earner. Inre Marriage of Kern, 245 Ill. App. 3d 575, 579, 615 N.E.2d 402,405 (1993).

Even the determination of "net income" is not always astraightforward, mechanical process. Cf. In re Marriage ofBoland, 308 Ill. App. 3d 1063, 1067, 721 N.E.2d 815, 818 (1999). While tax law principles may be useful in determining what netincome is available for child support, they are not controlling. Ivanyi v. Granoff, 171 Ill. App. 3d 411, 421-22, 526 N.E.2d 189,197 (1988) (refusing to consider items that defendant wasrequired to report on his tax return but did not in factreceive). Section 505 specifically recognizes that specialcircumstances may make it difficult to determine net income: "Ifthe net income cannot be determined because of default or anyother reason, the court shall order support in an amountconsidered reasonable in the particular case." 750 ILCS5/505(a)(5) (West 1998).

The circumstances of the present case present anothersituation, similar to the "split custody" situation mentionedabove, where the guidelines should not be mechanically applied. Slagel has three children by a prior marriage that ended with thedeath of her husband, and the needs of those three children mustbe met from the husband's life insurance (and the social securitybenefits received on account of his death). Wessels' argumentthat interest earned on the life insurance payments must beincluded in Slagel's net income in its entirety would ignore theneeds of the three children of the prior marriage.

One could argue that the legislature dealt with thissituation when it provided a deduction from "net income" for"[p]rior obligations of support or maintenance actually paidpursuant to a court order." 750 ILCS 5/505(a)(3)(g) (West 1998). We disagree. Wessels argues that there is no court order here. The "court order" requirement was designed to avoid the situationwhere the individual owing a duty of child support sought toavoid that obligation by asserting the payment of large amountsto a prior family that may not in fact have been made or that mayhave been made in excess of the needs of the prior family. Thereis no doubt that Slagel is the sole support for her threechildren, and she should be given some consideration for thepayments that she is required to make on that account.

Even ignoring the "court order" requirement, section505(a)(3)(g) provides little assistance in resolving this case. The trial court properly recognized that the income from theinvestments was not entirely Slagel's, even though she paid taxon it. The three Slagel children had at least an informalinterest in the investment income. The trial court acted withinits discretion in allocating the investment income three-fourthsto the Slagel children, and one-fourth to Slagel. The trialcourt was not required, in this situation, to include all theinvestment income in Slagel's net income, with a deduction for"[p]rior obligations of support or maintenance actually paid,"whether or not pursuant to a court order. 750 ILCS5/505(a)(3)(g) (West 1998). (It does appear that the trialcourt's method for computing Slagel's child support approximatesthat result.)

For the foregoing reasons, we affirm the judgment ofthe trial court.

Affirmed.

McCULLOUGH and GARMAN, JJ., concur.