In re Marriage of Fortner
52 N.E.3d 682
Ill. App. Ct.2016Background
- Robbie and Shelley Fortner divorced in 2006; Robbie was ordered to pay child support for their daughter Kylie and both parents shared private school tuition costs.
- In 2014 Robbie, as his father’s sole heir and independent administrator, received $169,725.48 net from a $250,000 wrongful-death settlement; he spent most on funeral bills, vehicles, a house down payment, and home improvements.
- Shelley petitioned to modify child support based solely on the settlement proceeds; the trial court held a hearing in January 2015.
- The trial court found the settlement proceeds were not "income" but did increase Robbie’s financial resources and standard of living, and ordered a one-time lump-sum child-support payment of $15,000.
- Robbie appealed, arguing the court could not base support on the settlement after finding it was not income and that the award exceeded Kylie’s needs; Shelley alternatively argued the settlement should be treated as income.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful-death settlement proceeds constitute "income" for child-support purposes | Shelley: the settlement functions as income (akin to inheritance/gift) and should be included in income for support | Robbie: wrongful-death (and pain-and-suffering) damages are like personal-injury awards that make plaintiff whole and are not income | Court: settlement proceeds qualify as income (or nonrecurring income) under the broad statutory definition; Villanueva is not followed |
| Whether the settlement justified modification of child support | Shelley: settlement increased Robbie's resources and ability to support Kylie; justifies modification | Robbie: no substantial change shown; court found proceeds weren’t income so modification unjustified | Court: even if treated as nonrecurring income, the year-of-receipt guideline calculation created >20% inconsistency, allowing modification without separate substantial-change showing |
| Whether the trial court abused discretion by ordering an amount exceeding the child’s demonstrated needs | Shelley: sought increased support to cover braces, insurance, activities, and general increased costs | Robbie: $15,000 lump sum exceeds Kylie’s demonstrated, specific needs | Court: court may presume child’s needs rise; amount (below 20% guideline) was reasonable given nonrecurring nature and consideration of standard-of-living factor |
| Whether appellee may raise alternative basis on appeal without cross-appeal | Shelley: asks affirmance and advances income characterization as alternative basis | Robbie: argues cross-appeal required | Court: appellee may defend judgment on any record basis; alternative argument considered and adopted |
Key Cases Cited
- Villanueva v. O'Gara, 282 Ill. App. 3d 147 (1996) (Second District held entire personal-injury settlement should not automatically be treated as income; only lost-wage portion may be income)
- In re Marriage of Rogers, 213 Ill. 2d 129 (trial-court-abuse-of-discretion standard for support modification; broad statutory definition of income)
- Department of Public Aid ex rel. Jennings v. White, 286 Ill. App. 3d 213 (definition of income includes various gains; investment and deferred-compensation treated as income)
- In re Marriage of Baumgartner, 384 Ill. App. 3d 39 (non-recurring lump-sum awards treated as income for support purposes)
- In re Marriage of Sharp, 369 Ill. App. 3d 271 (rebuttable presumption that gains are income unless excluded by statute)
- In re Marriage of Singleteary, 293 Ill. App. 3d 25 (child-support analysis must consider standard of living the children would have enjoyed absent dissolution)