In re Izzo

2019 IL App (2d) 180623

144 N.E.3d 132

437 Ill.Dec. 332

IN RE MARRIAGE OF Kris M. IZZO, Petitioner-Appellee, and Robert J. Izzo, Respondent-Appellant.

Nos. 2-18-0623 & 2-18-0769 cons.

Appellate Court of Illinois, Second District.

Opinion filed October 15, 2019

Margaret Keane and Dina Warner, of Berger Schatz, LLP, of Chicago, for appellant.

Justin M. Smit, of The Stogsdill Law Firm, P.C., of Wheaton, for appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 In August 2017, respondent, Robert J. Izzo, petitioned to reduce his $6500 monthly child-support obligation to petitioner, Kris M. Izzo. He argued that a substantial change in circumstances had occurred since the entry of the most recent support judgment, which was the original judgment dissolving the parties' marriage nine years prior. Robert set forth the following bases for a substantial change: (1) he had increased his share of overnight custody from 15% to 45%; (2) Kris had experienced an increase in wealth and income; and (3) he was forced to retire and is no longer earning income from employment. The court rejected each of these bases, explaining that (1) Robert's increased share of custody was too remote, having occurred five years after the original judgment but four years before the petition to modify; (2) Kris's increase in wealth was anticipated at the time of the original judgment; and (3) Robert's retirement was entirely voluntary. Robert appeals.

¶ 2 We hold that the trial court made an error of law when it found the change in custody to be too remote to constitute a substantial change in circumstances. The circumstances at the time of a petition to modify must be measured against the circumstances at the time of the most recent support judgment, not against the circumstances at some time between the two events. The change in custody alone is enough to establish a substantial change in circumstances justifying a reduction in the child-support amount. Therefore, we need not consider the additive effects, if any, of the other changes Robert alleged to establish a substantial change. We reverse the trial court's judgment and remand for a determination of the proper child-support amount in light of the change in custody. On remand, in setting the new support amount, the trial court can consider Kris's, as well as Robert's, wealth and Robert's retirement.

¶ 3 I. BACKGROUND

¶ 4 Robert and Kris married in 1988. They had three sons: R.I. (born in 1990), E.I. (born in 1994), and B.I. (born in 2004). Kris petitioned for divorce in 2007, and the trial court entered a judgment of dissolution in August 2008, which incorporated the parties' marital settlement agreement and joint parenting agreement. At the time of the divorce, Robert worked for Chase Bank and earned $1.6 million annually from employment. In some, but not all, of the years immediately preceding the divorce, his income from all sources exceeded $2 million annually. Kris did not work outside the home, although she had previously worked as an accountant.

¶ 5 The marital estate contained approximately $10 million in assets. The dissolution judgment ordered a 60/40 split in Kris's favor of $7.5 million in nonretirement assets and a 50/50 split of $2.5 million in retirement assets. Thus, Kris's property award was approximately $5.75 million and Robert's was approximately $4.25 million.

¶ 6 In addition, Robert paid Kris an $850,000 lump sum in lieu of maintenance. The judgment noted that the lump sum would further enable Kris to support herself. It also instructed that each party was to inform the other of his or her place of employment.

¶ 7 The judgment set forth the following custody arrangement. R.I., who was 17 and nearly emancipated, lived primarily with Robert. E.I., who was 14, split his time equally with both parents, both of whom lived in Naperville. B.I., who was 4, spent 12 of 14 nights with Kris and the other 2 with Robert. B.I. also spent Wednesday evenings (with no overnights) and alternating Saturday afternoons with Robert.

¶ 8 The judgment ordered Robert to pay Kris $6500 monthly in child support, for B.I. only. The judgment reserved the question of support as to R.I. and E.I. Robert was solely responsible for providing all of the children with health insurance and paying for extraordinary medical expenses. The parties were to equally split costs associated with ordinary medical expenses, education, extracurricular activities, and child care. Each party would be responsible for day-to-day costs, such as food, clothing, and shelter, when a child was in his or her home.

¶ 9 In September 2008, Robert moved to reconsider the judgment. He alleged that, after the judgment was entered, his supervisor at Chase informed him that he would not be retained in his present position. Either he would lose his job entirely or he would be placed in a new position with a substantial reduction in income. The trial court denied the motion. Robert appealed. See In re Marriage of Izzo , No. 2-08-0934, 369 Ill.Dec. 97, 985 N.E.2d 1083 (2009) (unpublished order under Illinois Supreme Court Rule 23 ). This court affirmed, holding that the information concerning Robert's potential change in employment was not evidence but was in the nature of an opinion. Id. at 4. Thus, the original judgment remained in effect.

¶ 10 In 2010, Robert "was separated from" his employment with Chase. A former coworker at Chase was then running a risk group at Freddie Mac, and she helped him obtain employment there. Robert's annual income from employment at Freddie Mac was approximately $1 million. Robert did not seek a reduction in child support due to a reduction in income.

¶ 11 Robert's office at Freddie Mac was located in Virginia. He arranged a commuter schedule that allowed him to continue living in Naperville, so that he could continue to be heavily involved in his children's lives. One week, he worked from home in Naperville and the next week, he worked three to four days in Virginia The schedule caused no disruption to his custody arrangement. After working for Freddie Mac for two years, Robert was granted even more flexibility. He worked in Virginia just two days every other week.

¶ 12 In 2012, Robert petitioned to modify custody as to B.I., then age 8. Because Robert sought to be the primary custodian, he also sought to cancel his child-support obligation. However, in 2013, Robert withdrew his petition, as well as his request concerning support, and the parties entered into a settlement agreement concerning custody. Pursuant to the agreement, B.I. spent 6 of every 14 nights with Robert, amounting to a 43/57 custodial split. Accounting for certain holidays and vacations, the split was closer to 45/55. The new custody order expressly stated that all other provisions of the original judgment remained in full force and effect. The original judgment remained the most recent support order.

¶ 13 In the meantime, both older boys had attained majority. Robert paid the entirety of the costs associated with their undergraduate college educations. R.I. attended Lewis University and then returned home to reside with Robert, through the date of the instant proceedings. E.I. was completing his degree at the University of Illinois. Costs to date for E.I. alone were approximately $135,000. Robert did not ask Kris to contribute.

¶ 14 In 2015, Robert experienced health problems. He had quadruple bypass surgery. Following the surgery, he suffered from shingles. These events caused him to miss four months of work, through the fall of 2015. When he returned to work, the atmosphere was different. The person who had hired him was gone. The supervisor who took her place wanted Robert to spend significantly more time in Virginia, four to five days per week. In the spring of 2016, Robert was verbally told by two supervisors that he would be required to work in Virginia. Robert considered this to be an effective order to relocate to Virginia. Robert told his supervisors that the new arrangement was a "non-starter," because he did not want to lose parenting time with B.I., then age 11.

¶ 15 Robert would not continue to work for Freddie Mac long term. Under a verbal agreement, Robert would continue to work through September 2016. Then, in October 2016, Robert entered into a written severance agreement with Freddie Mac. Under that agreement, Robert would help Freddie Mac find his replacement. Robert would receive $500,000 as reduced compensation through September 2017. He did not work during the period of reduced compensation.

¶ 16 On August 20, 2017, Robert, then age 59, petitioned to modify child support. In his amended petition, Robert set forth three bases for the modification: (1) he had increased his share of overnight custody from 15% to 45% since the original judgment, (2) Kris had experienced an increase in wealth and income, and (3) he was forced to retire and is no longer earning income from employment.

¶ 17 At the hearing, Robert testified as set forth above. Kris was the only other witness to testify. As to the issue of respective wealth, each party submitted a 2017 financial affidavit. The affidavits and testimony showed that each party had a net worth of approximately $8 million. Each party lived primarily on passive income, with Kris receiving approximately $15,000 monthly and Robert receiving approximately $8000. In addition, Kris earned $30,000 annually through her part-time employment as an office worker at a private grammar school. (She performed accounting work, but she no longer held a CPA license.) Kris owned two homes, a single-family home in Naperville and a condominium in Chicago. Their total value was approximately $1 million, and neither property carried a mortgage. Kris owned two cars, a 2008 Lexus (with a $4000 market value) and a 2015 Tesla. She purchased the 2015 Tesla with $90,000 cash. She had no car payments. Robert owned one home, valued at $600,000, with $285,000 remaining on the mortgage. Robert...