2015 IL App (1st) 133926
Ill. App. Ct.2015Background
- Roberta and John Pasquesi divorced in 2010; their marital settlement agreement (MSA) created a $90,000 Section 503(g) trust (Roberta named trustee) to cover child support ($2,000/mo imputed from $60,000 net) and 50% of child-related expenses for a 24‑month period ending 1/31/12, with review for replenishment thereafter.
- John funded the trust late (completed March 2011). Roberta drew child support and reimbursements from the trust through its term.
- After the 24 months, Roberta petitioned to replenish the trust and to set current child support; John petitioned to set child support and disputed many child-related expense charges.
- Trial over several days produced evidence of John’s finances: large IRA withdrawals, intermittent commissions, periods of business losses, and employment beginning August 13, 2012 with $96,000 gross annual salary.
- The trial court: (1) ordered replenishment of the 503(g) trust ($12,000 due 12/31/13 and 12/31/14, with future reduced amounts); (2) set current child support at 28% of net income (dropping later to 20% when one child emancipates); (3) awarded Roberta all dependency exemptions per the MSA; (4) found John in contempt and ordered him to pay retroactive child support ($5,421 + interest) and $12,464 in past‑due child‑related expenses.
Issues
| Issue | Roberta's Argument | John's Argument | Held |
|---|---|---|---|
| Whether court properly ordered replenishment of the Section 503(g) trust | Trust replenishment warranted because John willfully refused to pay nonmedical child‑related expenses; MSA names Roberta trustee | Roberta is an interested party (trustee) so replenishment with her as trustee improper; insufficient evidence justified replenishment | Affirmed: court did not abuse discretion; parties agreed to Roberta as trustee in MSA and nonpayment of nonmedical expenses supported replenishment |
| Whether retroactive child support (Feb 1, 2012–Aug 13, 2012) should be calculated at 32% of imputed $60,000 | Maintain status quo per MSA (imputed income) because no real change in circumstances | John had no income during that period and relied on IRA withdrawals and business losses | Affirmed: court reasonably imputed $60,000 and applied guideline percentage (32%) for that period |
| Allocation of dependency tax exemptions | MSA permitted Roberta to claim all future exemptions; she is primary custodian and bears more support burden | John could benefit now that he is employed and argues court abused discretion | Affirmed: awarding exemptions to Roberta consistent with MSA and not an abuse of discretion |
| Whether court erred in awarding $12,464 past‑due child‑related expenses | Roberta provided calculation; parties were ordered to submit contested calculations | John says he did not stipulate and trial court erred in treating his silence as assent; record incomplete | Affirmed: on the record (including parties’ joint spreadsheet and trial testimony) court permissibly concluded John owed $12,464; appellant bears burden of incomplete record |
Key Cases Cited
- In re Marriage of Bates, 141 Ill. App. 3d 566 (discussion of abuse of discretion standard for trusts under 503(g))
- In re Marriage of Vucic, 216 Ill. App. 3d 692 (interested party generally inappropriate as trustee; court must consider circumstances)
- In re Marriage of Hubbs, 363 Ill. App. 3d 696 (courts may look to past earnings to determine appropriate income)
- In re Marriage of Gosney, 394 Ill. App. 3d 1073 (courts may impute income based on earning potential)
- In re Marriage of Breitenfeldt, 362 Ill. App. 3d 668 (trial court’s child support findings reviewed for abuse of discretion)
- In re Marriage of Sanfratello, 393 Ill. App. 3d 641 (definition of abuse of discretion in family law contexts)
- In re Marriage of DiFatta, 306 Ill. App. 3d 656 (dependency exemption awarded to parent contributing majority of child’s support)
- Stockton v. Oldenburg, 305 Ill. App. 3d 897 (custodial parent’s contributions include nonmonetary support; paying statutory support alone doesn’t guarantee exemption)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (appellant’s burden; incomplete record presumption in favor of trial court)