In re Marriage of Garrett

Case Date: 02/03/2003
Court: 5th District Appellate
Docket No: 5-01-0728 Rel

               NOTICE
Decision filed 02/03/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0728

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re MARRIAGE OF
HARRY TIMOTHY GARRETT,

          Petitioner-Appellant,

and

ELIZABETH ANN GARRETT,

          Respondent-Appellee.

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Appeal from the
Circuit Court of
Lawrence County.


No. 93-D-10

Honorable
Robert M. Hopkins,
Judge, presiding.

 

JUSTICE CHAPMAN delivered the opinion of the court:

A former wife petitioned for increased child support. The circuit court of LawrenceCounty, Judge Robert M. Hopkins, increased the former husband's child support payment tothe statutory guidelines' minimum of $824 per week. The former husband appeals, claimingthat (1) the award is substantially greater than the reasonable needs of one child and (2) thecourt improperly employed income averaging for the purpose of establishing child support. We affirm.

I. BACKGROUND

Dr. Harry and Elizabeth Garrett's marriage was dissolved in July 1993. At the timeof their divorce, the Garretts had two children-a daughter, Allison, who was 1, and a son,Jeffrey, who was 11. Prior to the dissolution, the trial court had made a finding on a petitionfor interim relief that Harry's 1992 net income for purposes of child support was $175,000and that his net income would be somewhat reduced for 1993. Subsequently, the trial courtapproved a marital settlement agreement setting child support at $700 per week for the twochildren.

In 1999, Elizabeth Garrett filed a petition for modification, seeking increased childsupport based on the increased needs of the children and on Harry's increased income. Harry,a self-employed physician, provided sketchy financial information at the trial. However, thecourt found that his net income for child support purposes was $240,034 in 1998, $237,897in 1999, and $164,836 in 2000. The court further found that there had been a trend towardgrowth in his gross income between 1992 and 1999 and that the reduction in his grossincome from 1999 to 2000 was atypical and unexplained by Harry's testimony. The courtaveraged Harry's net income for the previous three years, arriving at a figure of $214,255. The court found that there had been a substantial change in circumstances-both an increasein the needs of the children and an increase in Harry's income-warranting a modification inchild support. The court then established his child support obligation for daughter Allisonat the 20% statutory guidelines' minimum of $824 per week and ordered payment untilAllison reached age 18. The court's order had awarded 25% for both children until June of2000, terminating upon Jeffrey's graduation from high school. Jeffrey, although still livingwith his mother, had become emancipated by the time of the trial and was attending a nearbycommunity college. Following the dissolution, Elizabeth had returned to college andobtained a teaching degree. At the time of the trial she had secured her first teaching job andwas earning a net income of $19,200 per year.

Harry appeals the decision of the trial court, arguing that the court abused itsdiscretion by (1) setting child support at a level substantially greater than the reasonableneeds of the child and (2) averaging his income for the previous three years to establish hisobligation. We affirm the trial court's decision.

II. ANALYSIS

A. Child Support

Motions to modify child support must be decided on the facts and circumstances ofeach case; therefore, the standard of review is whether the trial court abused its discretion. See In re Marriage of Singleteary, 293 Ill. App. 3d 25, 35-36, 687 N.E.2d 1080, 1087 (1997). "An abuse of discretion occurs only where no reasonable person could agree with theposition taken by [the] trial court." In re Marriage of Ackerley, 333 Ill. App. 3d 382, 395,775 N.E.2d 1045, 1057 (2002).

Harry contends that the trial court should have deviated downward from the statutoryguidelines (see 750 ILCS 5/505(a)(1) (West 2000)) because 20% of his net income providesa child support level substantially greater than the reasonable needs of the child. Werecognize that there is one Illinois Supreme Court case, In re Marriage of Bussey, 108 Ill. 2d286, 483 N.E.2d 1229 (1985), where the court affirmed a trial court's decision to establisha child support obligation below the statutory guidelines' minimum. Our research, however,has not revealed any Illinois Supreme Court case that has reversed a trial court's decisionestablishing child support at the statutory guidelines' minimum.

Section 510(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act)provides that a substantial change in circumstances will justify a modification of childsupport. 750 ILCS 5/510(a)(1) (West 2000). The burden of showing that a substantialchange in circumstances has occurred is on the moving party. See In re Marriage of Bean,181 Ill. App. 3d 671, 673, 537 N.E.2d 342, 344 (1989). A court may increase the amount ofchild support solely on the basis of a parent's increased ability to pay. See In re Marriageof Bean, 181 Ill. App. 3d at 674, 537 N.E.2d at 344-45. Additionally, it can be presumed thatthe cost of raising a child increases as the child grows older. See In re Marriage of Riegel,242 Ill. App. 3d 496, 499, 611 N.E.2d 21, 23 (1993).

Section 505(a)(1) of the Act sets forth guidelines for determining the percentageamount of child support. 750 ILCS 5/505(a)(1) (West 2000). Section 505(a)(2) thenprovides:

"(2) The above guidelines shall be applied in each case unless the court makesa finding that application of the guidelines would be inappropriate, after consideringthe best interests of the child in light of evidence including but not limited to one ormore of the following relevant factors:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriagenot been dissolved;

(d) the physical and emotional condition of the child, and hiseducational needs; and

(e) the financial resources and needs of the non[]custodial parent.

If the court deviates from the guidelines, the court's finding shall state theamount of support that would have been required under the guidelines, ifdeterminable. The court shall include the reason or reasons for the variance from theguidelines." 750 ILCS 5/505(a)(2) (West 2000).

The same guidelines and factors apply when the court considers an increase in child support. See In re Marriage of Bussey, 108 Ill. 2d at 296, 483 N.E.2d at 1233.

The question of whether to deviate downward from the statutory guidelines whendealing with above-average incomes presents a dilemma. The consideration of all therelevant factors "in the best interest of the child" can often end in the simple query of "howmuch is too much?" The jurist must keep in mind that what is considered reasonable bysome families' standards may be considered extravagant by other families' standards. Forexample, most families would find a European vacation unthinkable, but for the privilegedfew it might be an annual event. Fortunately, the statute itself, by requiring express reasonsfor a downward deviation, affords safeguards against jurists imposing their personal beliefsof what is reasonable. See 750 ILCS 5/505(a)(2) (West 2000). Further, case law hasimposed a presumption that the guidelines apply absent compelling reasons, which places theburden on the party urging the deviation. "[A] determination of child support under the Actbegins with the presumption that the guidelines will be applied. Compelling reasons mustexist in order to overcome that presumption and permit the court to deviate from theguidelines." In re Marriage of Stanley, 279 Ill. App. 3d 1083, 1085, 666 N.E.2d 340, 341(1996); see also In re Marriage of Ackerley, 333 Ill. App. 3d at 396, 775 N.E.2d at 1057; Inre Marriage of Rogliano, 198 Ill. App. 3d 404, 411, 555 N.E.2d 1114, 1118 (1990).

Harry complains that the child support is a windfall to Elizabeth and that in its awardthe trial court should have considered the personal finances of Elizabeth. According toHarry, Elizabeth has elected to live so frugally that only a portion of the child support isactually spent. Harry believes that Elizabeth has effectively circumvented the intent of thechild support order and basically converted these funds intended for the children into spousalmaintenance. There is no evidence, however, in the record to support the proposition thatElizabeth has in any way misappropriated child support money for her own use. The courtwill not engage in gross speculation in that regard. The fact that Elizabeth has placed moneyin savings to provide for future uncertainties is commendable. Responsible adults do notspend every penny available to them. This court does not want to instruct that unless acustodial parent spends the allotted child support money within the month it is received, thecourt will deem the excess unnecessary.

Harry relies entirely on the decisions of In re Marriage of Singleteary and In reMarriage of Bush, 191 Ill. App. 3d 249, 547 N.E.2d 590 (1989), in support of his argumentthat the court should have deviated downward from the statutory guidelines. He points outthat the court in each case emphasized that a child support award is not intended as a windfallto the custodial parent. See In re Marriage of Singleteary, 293 Ill. App. 3d at 36, 687 N.E.2dat 1088; In re Marriage of Bush, 191 Ill. App. 3d at 261, 547 N.E.2d at 597. In each case,however, the facts involved a situation where both parents' individual incomes were morethan sufficient to meet the child's needs and allow him the lifestyle he would have enjoyedif the parties had not divorced. The courts' holdings were clearly limited to suchcircumstances. The In re Marriage of Bush court stated, "We now hold that where theindividual incomes of both parents are more than sufficient to provide the reasonable needsof the parties' children, taking into account the life-style the children would have absent thedissolution, the court is justified in setting a figure below the guideline amount." (Emphasisadded.) In re Marriage of Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596; see also In reMarriage of Singleteary, 293 Ill. App. 3d at 36, 687 N.E.2d at 1088. Such is not the casehere. Elizabeth's net annual income of $19,200 is nominal compared to Harry's averaged netincome of $214,255 and clearly could not be considered sufficient to provide the reasonableneeds of Allison, taking into account her lifestyle before her parents' dissolution.

While we recognize that the support of a child is the joint obligation of the parents,it is clear that when one parent earns a disproportionately greater income than the other, thatparent should bear a larger share of the support. See In re Marriage of Singleteary, 293 Ill.App. 3d at 38, 687 N.E.2d at 1089. Elizabeth's affidavit of monthly living expenses for herhousehold totaled $3,422. The child support established by the trial court totals $3,507.66per month. We are aware that the amount paid in child support currently exceeds themonthly expenses for the entire household, but a child's entitlement to a level of support isnot limited to his or her "shown needs." Harry's argument that Allison is only entitled to her"shown needs" has been rejected by the Illinois Supreme Court in In re Marriage of Bussey,for the reason that it, in effect, ignores the consideration of the standard of living that thechild would have enjoyed if the marriage had not been dissolved. In re Marriage of Bussey,108 Ill. 2d at 297, 483 N.E.2d at 1234; see In re Marriage of Ackerley, 333 Ill. App. 3d at396, 775 N.E.2d at 1057. In In re Marriage of Ackerley, the trial court awarded $3,000 permonth for one child. Even though the award was below the statutory minimum, the obligorhusband appealed, claiming that it was greater than the needs of the child. In affirming, theappellate court pointed out that needs are just one of the factors to consider. The court wenton to state: "[I]t is inferrable that, if the marriage had not dissolved, petitioner's son wouldhave been enjoying a higher standard of living. Had he been enjoying the same standard ofliving while residing with petitioner, it is apparent that the family's monthly expenses wouldhave been higher." In re Marriage of Ackerley, 333 Ill. App. 3d at 395-96, 775 N.E.2d at1057. The expenses of the family are explicitly tied to the current level of child support. Elizabeth claims that if she had greater funds to expend, then her expenses would be greater. Harry points out that Allison wants for nothing, and he notes that he takes her on familyvacations, citing a recent trip to Jamaica. His point, however, illustrates the kind of lifestylethat families in his income bracket frequently enjoy. Elizabeth, too, should be able to takeAllison to Jamaica; however, her limited resources do not allow such a lifestyle. In In reMarriage of Rogliano, this court stated, "[W]here a noncustodial parent has the ability to paysupport in excess of the stated needs of the child, a court may order child support in excessof the needs to enable the child to enjoy the standard of living he would have had if themarriage had not been dissolved." In re Marriage of Rogliano, 198 Ill. App. 3d at 412, 555N.E.2d at 1119.

It is also clear from the record that Harry's financial resources of more than $170,000after paying Allison's support are ample to meet his needs.

We conclude, as did the trial court, that Elizabeth established a substantial change incircumstances, entitling her to a modification in child support. We also conclude that Harryhas not met his burden of justifying a downward deviation from the statutory supportguidelines. See Department of Public Aid ex rel. Nale v. Nale, 294 Ill. App. 3d 747, 752, 690N.E.2d 1052, 1056 (1998). Accordingly, we hold that the court did not abuse its discretionin applying the statutory guidelines.

B. Income Averaging

Harry's second argument is that the trial court abused its discretion by averaging hisincome for the previous three years in order to establish the amount of child support owed. Although he recognizes that in some instances an income-averaging approach is necessary,Harry does not believe that it was appropriate under these circumstances. Instead, hebelieves that the trial court should have used only the 2000 projected net income figure of$164,836 in applying the statutory guideline. This calculation would have resulted in a childsupport obligation of $622 per week, and this figure would have been acceptable to Harry.

A trial court's finding of net income is within the discretion of the trial court and willnot be disturbed absent an abuse of that discretion. See In re Marriage of Freesen, 275 Ill.App. 3d 97, 103, 655 N.E.2d 1144, 1148 (1995). In situations where income fluctuates fromyear to year, income averaging is an approved method to apply in determining current netincome for the purpose of establishing child support. See In re Marriage of Freesen, 275 Ill.App. 3d at 103, 655 N.E.2d at 1148. Income averaging may be applied in any case whereit is appropriate, and there does not need to be wild fluctuation before averaging may beapplied. See In re Marriage of Freesen, 275 Ill. App. 3d at 103, 655 N.E.2d at 1148. We agree with the trial court's decision to average the net income of the previous threeyears because the annual income amounts varied significantly from year to year. Specifically, the court found Harry's 1998 net income to be $240,034, his 1999 net incometo be $237,897, and his 2000 net income to be $164,836. Further, considering the fact thatthe court found the reduction in Harry's gross income from 1999 to 2000 (the time this actionwas pending) atypical and unexplained by Harry's testimony, the court would have beenjustified in excluding the 1999 to 2000 income altogether and substituting 1997's income of$197,497, thereby resulting in an even higher averaged income.

Accordingly, we find that the trial court did not abuse its discretion in using incomeaveraging under these circumstances.

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court modifying thesupport order to $824 per week.

Affirmed.

MAAG and KUEHN, JJ., concur.