In re Marriage of Salvatore

2019 IL App (2d) 180425

124 N.E.3d 1136

429 Ill.Dec. 626

IN RE MARRIAGE OF Brenda SALVATORE, Petitioner-Appellee, and Daniel Salvatore, Respondent-Appellant.

No. 2-18-0425

Appellate Court of Illinois, Second District.

Opinion filed March 8, 2019

Bryan D. Sullivan, of Mohr Sullivan Kasper, P.C., of Algonquin, for appellant.

Dane J. Loizzo, of Law Office of Loizzo & Loizzo, of Woodstock, for appellee.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion ¶ 1 Respondent, Daniel Salvatore, appeals the denial of his petition to modify his child support obligation. He argues that the McHenry County circuit court's ruling was erroneous because there has been a substantial change in circumstances since the dissolution of his marriage to petitioner, Brenda Salvatore. Namely, Daniel argues that his child support obligation should be decreased based on Brenda's income from her recent employment. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reflects that the parties were married in January 2001. Three children were born to them during their marriage, none of whom have yet reached the age of emancipation. The parties filed cross-petitions for dissolution of marriage in January 2014. On August 26, 2015, the trial court entered a judgment of dissolution that approved and incorporated the parties' joint parenting agreement (JPA) and marital settlement agreement (MSA). Pursuant to the JPA, all three children reside primarily with Brenda. Pursuant to the MSA, both parties waived their rights to maintenance.

¶ 4 Relevant here, by the terms of the MSA, Daniel agreed to pay Brenda child support in the amount of $ 8100 per month. The MSA stated that this amount represented 32% of Daniel's net income of $ 25,312 per month from his dental practice. It noted that this calculation was based solely on Daniel's individual tax returns and was in accordance with the child support guidelines in section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) ( 750 ILCS 5/505 (West 2014) ).

¶ 5 Although the parties contemplated the possibility of Brenda's future employment elsewhere in their agreements, they made no such references in the "Child Support" section of the MSA. A provision labeled "Termination of Child Support" provided that Daniel's obligation with respect to each child would terminate "on the child's eighteenth birthday or upon completion of high school, whichever occurs later, but in no event shall child support extend beyond each child's 19th birthday." However, the "Termination of Child Support" provision also stated that nothing contained therein would be construed to prevent a modification of Daniel's obligation.

¶ 6 On November 1, 2017, Daniel filed a petition to modify child support, arguing that his decreased income constituted a substantial change in circumstances. He further noted that the child support guidelines in section 505 of the Act had recently been changed and that the nonsupporting parent's income is now factored into a determination of the supporting parent's child support obligation. Although Daniel made no argument that Brenda's income constituted a substantial change in circumstances, he nonetheless maintained that it was an appropriate basis for lowering his child support obligation. According to Daniel, Brenda's gross income from her new job was approximately $ 45,000 per year. Daniel argued that, applying the current section 505 guidelines and factoring in Brenda's income, his monthly child support obligation should be reduced from $ 8100 to $ 3244.

¶ 7 On January 15, 2018, Brenda filed a petition for an adjudication of indirect civil contempt, alleging that Daniel had recently violated several terms of the MSA, including failing to satisfy his child support obligation. On January 29, 2018, Daniel filed a petition for a rule to show cause as to why Brenda should not be held in indirect civil contempt, alleging that Brenda had violated the terms of the MSA with respect to medical expenses and homeowner insurance costs.

¶ 8 On April 5, 2018, the parties appeared for a hearing on all outstanding matters, beginning with Daniel's petition to modify his child support obligation. Brenda testified that she was unemployed when the judgment of dissolution was entered on August 26, 2015. However, in the preceding years she had performed office work for two separate dental practices. She earned approximately $ 20 per hour in these jobs, although the precise amount of her gross earnings was unclear from the parties' joint tax returns. Following the judgment of dissolution, Brenda remarried and started working as a triage nurse, earning $ 26 to $ 30 per hour depending on shift differentials. She confirmed her statement in her financial affidavit that her gross monthly income was $ 3451. However, her gross earnings for the 2017 tax year were only around $ 23,500, as she had taken a maternity leave.

¶ 9 Daniel testified that his individual 2017 tax return showed a gross income that was significantly less than his gross incomes from prior years. However, he acknowledged during cross-examination that there were discrepancies between the gross receipts from his business checking account and the amount reflected on his business's tax return. He also acknowledged that he had deposited several large sums into his personal bank account during 2017 that were not reflected in his gross income. According to Daniel, these discrepancies resulted from his payment of business tax liabilities from past years.¹

¶ 10 At the close of Daniel's case-in-chief, Brenda moved for a directed finding. She argued that Daniel's financial affidavits and tax returns were "completely fictitious" and that he was simply attempting to take advantage of the new child support guidelines in section 505 of the Act. In response, Daniel argued that there had been two substantial changes in circumstances: his decreased income and Brenda's increased income. Over Brenda's objection, the trial court allowed Daniel to amend his petition to conform with the proofs and add an allegation that Brenda's increased income constituted a substantial change in circumstances. However, the court also posed the question of whether Brenda's income was an appropriate basis for lowering Daniel's child support obligation given that it was not factored into the original calculation in the MSA. The court directed the parties to provide supplemental briefs addressing the issue before it ruled on Brenda's motion for a directed finding.

¶ 11 The parties returned on May 4, 2018, for oral arguments on their supplemental briefs and a ruling on Brenda's motion for a directed finding. The trial court began by finding that Daniel's tax returns were "not the most accurate tell of his income" and rejected his argument that they constituted a substantial change in circumstances. Turning to the issue of Brenda's income, the court commented that this was the "harder part of the case" given the recent changes to section 505 of the Act. The court first stated that, under the law in effect when the parties entered the MSA, absent something extraordinary like a "windfall of lottery," the nonsupporting parent's income was not a factor in determining the supporting parent's child support obligation. Next, the court observed that Daniel's child support obligation was based solely on his own income, "[s]o essentially when this was set in 2015, [Brenda's] financial situation really had no impact then, nor does it have any impact now, on [Daniel's] ability to pay child support." The court's final observation was that, although Brenda was unemployed at the time of the judgment of dissolution, there was evidence that she had been employed during the marriage. The court stated, however, that "[t]here was no evidence presented that when child support was set it was ever even contemplated that she was going to remain unemployed the entire time she was receiving support." The court agreed with Brenda that, because her income was not factored into Daniel's child support obligation, "the only logical conclusion is that the basis for modification is the new Act itself."

¶ 12 In closing, the court ruled that Brenda's current income could not be a basis to modify Daniel's child support obligation. The court went on to find that, even if Brenda's current income were considered, "she makes such a small amount compared to [Daniel], that even if that's in there, it's not a substantial change in circumstances." Accordingly, the court granted Brenda's motion for a directed finding and denied Daniel's petition to modify his child support obligation. By that same order, the court scheduled a hearing for the parties' contempt petitions.

¶ 13 On May 31, 2018, Daniel filed a motion for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). He argued that, regardless of the outstanding contempt petitions, there was no just reason to delay his appeal from the denial of his petition to modify his child support obligation. The trial court granted the Rule 304(a) finding on June 4, 2018, and Daniel filed a notice of appeal that same day.

¶ 14 II. ANALYSIS

¶ 15 Before addressing the merits of this appeal, we have an independent duty to examine our appellate jurisdiction.

In re Marriage of Knoerr , 377 Ill. App. 3d 1042, 1043, 316 Ill.Dec. 665, 879 N.E.2d 1053 (2007). Daniel incorrectly states in his brief that his notice of appeal on June 4, 2018, was filed within 30 days of the trial court's order on May 4, 2018, and that our jurisdiction therefore lies under Illinois Supreme Court Rule 303(a) (eff. July 1, 2017). In fact, Daniel filed his notice of appeal 31 days after May 4, 2018, but this error is not fatal. Pursuant to Rule 304(a), "[i]n computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required [ Rule 304(a) ] finding shall be treated as the date of the entry of final judgment." Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Therefore, the trial...