In re Marriage of Fisher

2018 IL App (2d) 170384

138 N.E.3d 103

434 Ill.Dec. 944

IN RE MARRIAGE OF Bobbi Barboza FISHER, Petitioner-Appellant, and Bryce A. Fisher, Respondent-Appellee.

No. 2-17-0384

Appellate Court of Illinois, Second District.

Opinion filed December 13, 2018

Rehearing denied January 15, 2019

Marvin A. Mendez and David J. Zwaska, of Dussias Wittenberg Koenigsberger LLP, of Chicago, for appellant.

Cecilia Hynes Griffin, Samantha Bell Sugarman, and Molly R. Schiller, of Griffin McCarthy & Rice LLP, of Chicago, for appellee.

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

¶ 1 Petitioner Bobbi Fisher appeals from the trial court's order granting respondent Bryce Fisher's motion to dismiss Bobbi's petition to modify child support. For the following reasons, we vacate the trial court's order and we remand this cause for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The record reflects that the parties were married on October 30, 2004. On April 16, 2015, a judgment of dissolution of marriage was entered, which incorporated a "Marriage Settlement Agreement" (MSA) between the parties. Two daughters were born during the marriage, M.F. and L.F., who were ages 10 and 8, respectively, when the judgment of dissolution of marriage was entered. In the MSA, the parties set forth Bryce's child support obligation as follows:

"4.01. Child Support. Bryce currently earns a base salary of $250,000 from his employment at Bank of America (‘B of A’), is eligible for an annual discretionary cash bonus from B of A, and receives disability income from the National Football League (‘NFL’) in the amount of $50,760. Bryce shall pay guideline child support to Bobbi in the amount of 28% of his net income up to $300,000 of Gross Annual Income. Bryce shall not be required to pay additional support on any income he receives in excess of $300,000 Gross Annual Income per year.

* * *

Bryce shall pay child support to Bobbi in the amount of Four Thousand Four Hundred Twelve Dollars ($4,412) per month. Said amount represents twenty-eight percent of the net (as defined by 750 ILCS 5/505 ) of $300,000 of Gross Annual Income. The parties acknowledge and agree that the cap on child support set forth in this Paragraph is appropriate given Bryce's income level, the allocation of the children's expenses as set forth in this Agreement, the parties' current standard of living, and all other factors to be considered by the court in establishing a cap and deviating from the guideline support."

¶ 4 Regarding the modifiability of child support, the MSA provides, in pertinent part:

"4.04. Modifiability. The parties acknowledge that child support shall be modifiable and may be modified upon proper notice and petition by either party. Any modification shall be made by a court of competent jurisdiction taking into account all applicable statutory provisions."

¶ 5 The trial court did not use the words "child support" anywhere in the judgment of dissolution. Instead, the judgment provided, in pertinent part:

"6. That the parties have entered into a Marital Settlement Agreement dated April 16, 2015 and a Custody Judgment Agreement dated December 19, 2014 concerning questions of maintenance, attorney fees, the respective rights of each party in and to the property, income or estate which either of them now owns or may thereafter acquire, including a division of all marital and non-marital property, and other matters, which Agreement has been presented to this Court for its consideration, and it is incorporated into this Judgment for Dissolution of Marriage by reference pursuant to 750 ILCS 5/502(d).

7. The Court has considered the economic circumstances of the parties and other relevant evidence and finds that the Agreement is fair and equitable, was freely and voluntarily entered into by the parties, is not unconscionable and is approved by this court."

¶ 6 In referring to the MSA later in the judgment, the trial court found the following:

"The Agreement herein contained is approved, confirmed, ratified and incorporated into this Judgment of Dissolution of Marriage by reference pursuant to 750 ILCS 5/502(d) to the same extent and with the same force and effect as though the provisions contained in the Agreement were set forth in this paragraph of this Judgment; and each and every provision of the Agreement is binding upon each of the parties, and each of the parties shall do and perform all the acts undertaken and carry out all the provisions contained in the Agreement which is made a part of this Judgment. Notwithstanding the adoption of the Agreement by the Court, the Agreement shall continue to have independent legal significance outside the ambit of this Judgment and shall be subject to enforcement by either party as in the case of any other contract or agreement[.]"

¶ 7 In April 2016, Bobbi filed a petition to modify child support. In her petition, Bobbi sought an increase in both child support and Bryce's contribution to their children's direct expenses. Bobbi alleged four bases for an increase in child support and contribution: (1) the children were older, (2) the children's expenses had increased, (3) Bobbi's financial resources had decreased because she was involved in an automobile accident, and (4) upon information and belief, Bryce's income had increased. In May 2016, Bryce filed a motion to dismiss Bobbi's petition. In June 2016, an agreed order was entered whereby the parties agreed (1) to increase Bryce's contribution to the children's direct expenses from 50% to 60%, (2) to terminate Bryce's maintenance obligation to Bobbi effective December 31, 2016, and (3) to prohibit both parties from filing any pleadings through December 31, 2016. Bryce's child support obligation remained unmodified.

¶ 8 In January 2017, Bobbi filed another petition to modify child support. In her petition, Bobbi alleged the same four bases for an increase in child support that she alleged in her earlier petition. Bobbi also argued that setting a cap on child support was against public policy in Illinois. In February 2017, Bryce filed a motion to dismiss Bobbi's second petition. In his motion, Bryce argued that Bobbi failed to allege a substantial change in circumstances that, if proven, would justify an increase in child support. He also argued that Bobbi pleaded conclusions of law and not facts. In Bobbi's response, she argued that, since the entry of the judgment of dissolution and the MSA, Bryce's self-reported income went from:

"$300,000 = $250,000 (base) + $50,000 disability payment from the NFL to earnings in 2016 of at least: $488,000 = $418,000 from his employer at B of A + $20,000 IRA withdrawal + $50,000 disability payment from the NFL + potential income from Ceannete Corp. Investments + potential income from AGM Portfolio II, LLC, Investment + Income from his NFL Player Annuity + etc."

¶ 9 Bobbi again argued that the cap on child support in the parties' MSA was contrary to public policy, particularly when section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provided clear instructions on the guideline-deviation process. 750 ILCS 5/505(a) (West 2014). Bryce filed a reply to Bobbi's response and argued that only new evidence arising since the last petition to modify child support could be presented to the court and that, since Bobbi failed to allege a new substantial change in circumstances, her pleading was deficient.

¶ 10 In March 2017, the trial court held a hearing on Bryce's motion to dismiss. At the hearing, Bryce's counsel argued that Bobbi acknowledged that her latest petition was identical to her previous one, and that if her efforts were not quashed right now, Bobbi would continue to come into court every six months in an attempt to receive more support. Counsel said that Bobbi had requested an increase in child support only because her maintenance was ending and that she was using this petition as a guise for seeking more maintenance. Counsel also stated that the allegations in Bobbi's petition did not constitute a substantial change in circumstances.

¶ 11 With regard to the MSA's cap on child support, Bryce's counsel claimed that (1) the parties agreed to the cap, (2) the reasons for the deviation were set forth in the MSA, and (3) Bobbi had not cited a case that said that a cap on child support was against public policy.

¶ 12 The trial court and Bobbi's counsel then engaged in the following colloquy:

"THE COURT: Okay.

So now I got your response in which you say, well, the kids are older, six months older than the last time I looked at this, and expenses have increased, six months have gone by.

My question to you and what this really boils down to is the court—and if you answered this, maybe I can come up—but where I'm really having an issue is when I read the Marital Settlement Agreement, what you presented to me is Bryce—the Marital Settlement Agreement set child support at $300,000. It defined if Bryce got $250,000 from his employer plus additional funds and then $50,000 from the NFL, correct?

MR. MENDEZ [ (BOBBI'S ATTORNEY) ]: Correct.

THE COURT: Okay.

So at the time that Mrs. Fisher entered into that agreement, she was aware that Mr. Fisher was going to get additional funds over and above the 3—the $250,000 that he was getting from the bank at the time. And those were—we all know what that is. That's discretionary bonuses, commissions, whatever.

MR. MENDEZ: Correct.

THE COURT: How is it now that she's surprised that he's making $488,000, take $50,000 off that, so roughly 430?

She knew he was going to get bonuses. She agreed that's okay. I know you're going to get bonuses. I know you're going to get additional income. I'm willing to set the child support at this amount. I agree to it. I entered into a—I'm using my air quotes here, saying that for the record—but into a contract in the form of a Marital Settlement Agreement, which is binding upon everybody.

There's the question that you got to answer for me." (Emphasis added.)

¶ 13 Bobbi's attorney replied...