2013 IL App (2d) 130423
Ill. App. Ct.2014Background
- Petitioner Susanne Marsh and respondent Thomas Marsh dissolved after 24 years; three children, one minor; MSA provided for respondent to retain shares in Wisted’s Supermarket and included child support terms with an offset and 20% of additional income every three months.
- Petitioner filed a rule-to-show-cause petition (Feb. 7, 2013) alleging respondent failed to pay 20% of income from the December 28, 2012 sale of stock.
- Respondent claimed the stock was sold at a loss, producing no income subject to the child-support provisions; he attached the stock sale agreement and CPA affidavit with the basis and loss calculations.
- Trial court denied the petition, holding no increase in wealth and thus no income under the act; petitioner appealed.
- The issue on appeal is whether post-dissolution proceeds from the sale of stock owned prior to dissolution constitute income under 505(a)(3) of the Act; the court reviews this de novo as a matter of law.
- The court held the stock sale proceeds did not constitute income because there was no gain or profit; the proceeds replaced the stock and did not reflect a new increment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stock sale proceeds are income for child support under 505(a)(3). | Marsh contends the sale produced new money and a gain subject to 20% of additional income. | Marsh argues no income since the sale yielded a loss and cash merely replaced the stock asset. | No; postdissolution stock sale proceeds with no gain are not income under 505(a)(3). |
Key Cases Cited
- Rogers v. Rogers, 213 Ill.2d 129 (2004) (defines 'income' in plain terms for 505(a)(3))
- In re Marriage of McGrath, 2012 IL 112792 (2012) (expansive approach to net income; withdrawals from savings not income when no new gain)
- In re Marriage of Lindman, 356 Ill. App. 3d 462 (2005) (discusses income as relating to distributions and assets)
- In re Marriage of Worrall, 334 Ill. App. 3d 550 (2002) (defines income as gain or profit increasing wealth)
- In re Marriage of Colangelo, 355 Ill. App. 3d 383 (2005) (stock distributions can be income when fruits of marital property)
- In re Marriage of Anderson, 405 Ill. App. 3d 1129 (2010) (stock sale proceeds replacing stock not income)