Ruvola v. Ruvola

2017 IL App (2d) 160737

83 N.E.3d 19

IN RE MARRIAGE OF Leonard A. RUVOLA, Petitioner-Appellant, and Michelle Ruvola, Respondent-Appellee.

No. 2-16-0737.

Appellate Court of Illinois, Second District.

Opinion filed June 27, 2017

Rehearing denied August 9, 2017

Richard D. Felice, of Law Offices of Richard D. Felice P.C., of Wheaton, for appellant.

Michelle E. Dahlquist, of Nigohosian & Dahlquist, P.C., of Wheaton, for appellee.

OPINION

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

¶ 1 Petitioner, Leonard A. Ruvola, raises various challenges to the trial court's judgment dissolving his marriage to respondent, Michelle Ruvola. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 We begin with a brief overview of the proceedings below. We provide additional background as we discuss each issue on appeal.

¶ 4 The parties were married in 1989. Their two children were adults when petitioner filed for divorce in March 2014. Having had sporadic employment since 1998, petitioner requested permanent maintenance from respondent. As was brought out at trial, petitioner attempted suicide in 2009 and later underwent psychiatric treatment. In July 2015, the parties stipulated, for purposes of trial, that petitioner "is not disabled" and "is not unemployable but is capable of employment." On September 22, 2015, the trial court entered an order stating:

"[Petitioner] shall seek full time employment. He shall apply for 7 jobs per week.* Petitioner shall tender copies of his applications, any responses, and a copy of the job search diary on a weekly basis, commencing on October 9, 2015 and continuing on a weekly basis. *At least 2 applications shall be in person."

¶ 5 In October 2015, respondent filed a petition for a rule to show cause and for an adjudication of indirect civil contempt. Respondent alleged that petitioner violated the September 2015 job-search order by failing to submit documents related to his job search. Respondent also alleged that petitioner was still unemployed. The trial court continued the contempt petition until the trial on the dissolution petition.

¶ 6 The trial court held a trial in December 2015. In its March 2016 judgment of dissolution, the court awarded petitioner permanent maintenance. The court found that respondent's yearly income was $125,000. Applying the statutory formula to respondent's income (see 750 ILCS 5/504(b-1) (West 2014)), the court reached a provisional maintenance amount of $3,125 per month. The court then deviated downward from this figure on three bases. First, the court imputed income to petitioner in the amount of $25,000 per year, because of his "lack of effort * * * in obtaining employment and his voluntary underemployment." Second, the court cited petitioner's "ability to meet his own expenses since [the parties'] separation." Third, the court "consider[ed] the property to be awarded to the Petitioner." These adjustments reduced the maintenance award to $2,400 per month.

¶ 7 Addressing respondent's contempt petition, the trial court both issued a rule to show cause and adjudicated petitioner in indirect civil contempt of court for his "failure to comply with the [September 2015] job search order." The court set purge conditions and awarded respondent $2,000 in attorney fees connected with her contempt petition.

¶ 8 Petitioner filed a motion to reconsider, which the trial court denied. He then filed this timely appeal.

¶ 9 II. ANALYSIS

¶ 10 A. Maintenance

¶ 11 1. Respondent's Income

¶ 12 Petitioner contends that the trial court failed to consider all sources of respondent's income in calculating maintenance. We agree.

¶ 13 We note first that the trial court was correct to apply the amendments to the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/101 et seq. (West 2016)) that became effective on January 1, 2016. See Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS 5/101 et seq. ). The amendments became effective after the closing of proofs in this case but before the judgment was rendered. See 750 ILCS 5/801(b) (West 2016) ("This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered.").

¶ 14 At trial, respondent testified that she has been employed with The Standard Companies (Standard) since 1984. She is "unofficially" vice-president of the company. The company is owned by her mother, and her father is chief executive officer and chairman. Respondent testified that her current salary at Standard is $121,200 per year, which is paid to her in two checks per month of $5,050 each. Respondent also receives a weekly check from Standard for $255. These disbursements are reflected in internal documentation from Standard that was introduced into evidence. According to respondent, the $255 weekly checks, which amount to $13,260 per year, are not salary but are "gifts" from her father. Respondent testified that her father gave her regular monetary gifts prior to her employment with Standard and that her siblings also currently receive regular monetary gifts from him. Respondent testified that her yearly base income, combining both the salary and the gift checks, is $134,460. Respondent noted that Standard also pays her discretionary bonuses. In 2014, she received a $2,000 bonus.

¶ 15 The record contains the parties' filed tax returns for 2010 through 2013 and their unfiled tax return for 2014. Also in the record are respondent's W-2 forms from Standard for 2012 through 2014. These W-2 forms show "Medicare wages" to respondent of $128,254.74 in 2014, $128,203.64 in 2013, and $127,640.43 in 2012. The record contains no W-2 forms for 2010 and 2011, but the tax returns for those years report "wages, salaries, tips etc." of $119,424 in 2010 and $123,260 in 2011. Asked about the discrepancy between the $134,460 that she receives yearly from Standard and the amounts shown on her W-2 forms and tax returns, respondent acknowledged that her $255 gift checks are "maybe" not reported as income.

¶ 16 Respondent testified that Standard provides her with various fringe benefits, such as a car, a cell phone, a home fax line, and home Internet service.

¶ 17 The trial court, addressing petitioner's maintenance request, recalled respondent as testifying that her "income is $121,000.00 per year gross which includes an additional 'stipend' of $255.00 per week." The court observed that the tax documents at trial showed that respondent "has been paid a base salary of $125,000.00 per year for tax years 2010, 2011, and 2012" and that her income for 2014 was $128,000. The court noted that it was considering the various fringe benefits respondent received from Standard as "direct or indirect income" in computing her yearly gross income for maintenance purposes. The court ultimately found that respondent's gross income per year is $125,000. Using the guidelines provided in section 504(b-1)(1) of the Act ( 750 ILCS 5/504(b-1)(1) (West 2016)), the trial court computed a provisional amount of maintenance, from which it then deviated downward.

¶ 18 We agree with petitioner that the trial court erred by failing to include, in its determination of respondent's yearly gross income, the weekly gift checks that she receives from her father. "Gross income" for purposes of a guideline award of maintenance "means all income from all sources, within the scope of that phrase in Section 505 of [the] Act [ ( 750 ILCS 5/505 (West 2016) ) ]." 750 ILCS 5/504(b-3) (West 2016). Section 505 of the Act ( 750 ILCS 5/505 (West 2016) ) governs awards of child support. Section 505(a)(3) of the Act ( 750 ILCS 5/505(a)(3) (West 2016)) defines " '[n]et income' * * * as the total of all income from all sources, minus [specified] deductions[.]" Whether an item constitutes income for purposes of child support is a question of law, which we review de novo. In re Marriage of Shores, 2014 IL App (2d) 130151, ¶ 24, 381 Ill.Dec. 672, 11 N.E.3d 35. By extension, the de novostandard also applies to whether an item constitutes income for purposes of maintenance.

¶ 19 Fortunately, there is clear authority on whether gifts received by the payor spouse constitute income for purposes of child support. In In re Marriage of Rogers, 213 Ill. 2d 129, 137, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004), the supreme court held that the annual gifts that the payor spouse received from his father constituted "income" under section 505(a)(3). In compliance with the legislature's directive in section 504(b-3), we hold that gifts received by the payor spouse also constitute income for purposes of maintenance.

¶ 20 In this case, the trial court appeared to believe that the yearly base amount that respondent claimed to receive from Standard is only $121,000 and that this amount includes the weekly gift checks. In fact, respondent testified that she receives the gift checks in addition toher base salary of $121,200 per year. The figure that the trial court found, $125,000, was perhaps a compromise between the yearly base amount as the trial court (mis)understood it and the income shown on the tax documents, which ranged to as high as $128,000 for 2014. However, by any estimate of respondent's salary from Standard, the $125,000 figure was too low as a total of respondent's income, given her testimony that she receives $13,260 in gifts each year from her father. Accordingly, we conclude that the trial court failed to include these gifts in its determination of respondent's income.

¶ 21 We note that petitioner assigns further error to the trial court with respect to a fringe benefit that respondent regularly receives from Standard. Petitioner asserts that respondent "paid herself $300 a month out of her joint checking account which was the amount of phone [and] Internet bill which is already covered by [Standard]." Petitioner asks that we therefore attribute $300 of additional monthly income to r...