In re Marriage of Elliott
2019 IL App (4th) 180628
Ill. App. Ct.2019Background:
- Parties divorced in 2009; one child born 2007. July 2012 order required respondent (Neil) to pay semimonthly: $413.66 child support, $108.33 day care, plus a prior arrearage payment of $82.73.
- Petitioner (Danielle) filed to modify child support (Mar 2014); respondent filed to modify day care obligation (May 2014). Multiple rule-to-show-cause petitions followed alleging large arrearages.
- Certified State Disbursement Unit (SDU) payment history and other financial records were submitted; respondent at times defaulted, then vacated the default and acknowledged an arrearage existed.
- Trial court (Jan 2018) found no substantial change in circumstances to increase base child support, kept child-care contribution effectively at the prior ordered amount but recalculated respondent’s share (70%) retroactive to July 1, 2017, and reserved arrearage/contempt findings pending a certified SDU accounting.
- On reconsideration the court declined to find contempt after reviewing the SDU summary (finding it did not itself establish an arrearage with statutory interest). On appeal the court (majority) reversed as to contempt (remanding for calculation and proceedings) but affirmed denial of child-support increase.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indirect civil contempt for failure to pay court-ordered support/arrearage | Danielle: SDU payment history + calculations show respondent paid less than ordered and thus contempt should be found. | Neil: Disputes the day-care baseline (claims order intended 50% of actual expenses), relies on SDU summary to show payments; no evidence failure was willful. | Court: Danielle made a prima facie showing of noncompliance; burden shifted to Neil who offered no nonwillfulness defense; trial court’s finding of compliance was against manifest weight — reversed and remanded for calculation and further proceedings. |
| Whether child support should be increased (and which statutory guidelines apply) | Danielle: Trial court should have applied the old guideline (20% rule) or otherwise found a substantial change in circumstances supporting an increase. | Neil: New Act/ income-sharing guidelines apply and petitioner failed to show a substantial/material change; income evidence does not warrant modification. | Court: New Act guidelines apply to pending modification issues under §801(b); trial court did not abuse discretion in finding no substantial change and denying increase — affirmed. |
| Whether tax refunds and respondent’s (second) spouse’s income should be treated as respondent’s income | Danielle: Tax refunds and spouse’s income (or imputed income) should be counted to show higher ability to pay. | Neil: Refunds are not recurring income and spouse’s income cannot be imputed without factual basis; divorce of second wife was not a sham. | Court: Trial court properly treated tax refunds as part of net income considerations (not additive recurring income) and did not err in refusing to impute spouse’s income absent specific factual findings — affirmed. |
Key Cases Cited
- In re Marriage of Berto, 344 Ill. App. 3d 705 (2003) (contempt proceedings are a primary method to enforce child-support orders).
- In re Marriage of LaTour, 241 Ill. App. 3d 500 (1993) (evidence of noncompliance with support order is prima facie evidence of contempt; burden shifts to alleged contemnor to show nonwillfulness).
- In re Marriage of Daniels, 115 Ill. App. 3d 173 (1983) (standard: modification requires substantial and material change in circumstances; trial-court discretion reviewed for abuse).
- In re Marriage of Baptist, 232 Ill. App. 3d 906 (1992) (factors trial court should weigh when deciding child-support modifications).
- In re Marriage of Sweet, 104 Ill. App. 3d 738 (1982) (application of new-act provisions to pending petitions where judgment on issue had not been entered).
- In re Custody of Sexton, 84 Ill. 2d 312 (1981) (explaining §801(b) application to pending modification/custody issues where no judgment had been entered before the Act’s effective date).
- Simmons v. Simmons, 77 Ill. App. 3d 740 (1979) (earlier case applying new-act provisions to pending modification petitions).
- Josic v. Josic, 78 Ill. App. 3d 347 (1979) (discussing modifiability of orders under transitional provisions of the Act).