In re Marriage of Yabush
220 N.E.3d 21
Ill. App. Ct.2021Background
- Parties divorced by agreed judgment in 2011; child support set at $2,226/month (28% of petitioner’s net base pay) plus 28% of any bonuses/commissions, and annual income documentation required.
- Petitioner (Yabush) was a salesperson at time of judgment; income reported about $138,000 in 2011 but historically fluctuated. Respondent (Melinda) earned about $85,000 in 2011.
- Petitioner formed his own marketing company in late 2017; his income rose to about $513,000 in 2017 and roughly $2.2 million in 2018.
- Petitioner petitioned in 2018 to decrease his child support obligation, arguing the large income increase (and change in employment) was a substantial change in circumstances and that continued application of 28% would produce an unjust windfall to respondent.
- Trial court denied modification, finding the dissolution judgment’s language (28% of bonuses/commissions) showed the parties contemplated fluctuating performance pay and therefore petitioner’s income increase was not a substantial change in circumstances; appellant appealed and the appellate court reversed and remanded.
Issues
| Issue | Yabush (Plaintiff/Appellant) | Melinda (Defendant/Appellee) | Held |
|---|---|---|---|
| Whether petitioner’s jump to ~$2.2M constitutes a "substantial change in circumstances" supporting modification of child support | The 16x income increase and change to new business/compensation is a substantial change warranting reconsideration of support | The settlement’s 28% provision for bonuses/commissions shows the parties anticipated performance-based income fluctuations, so the increase was contemplated and not a substantial change | Reversed: appellate court held the scale and source of the increase (formation of petitioner’s own company and seven-figure income) was not shown to have been contemplated by the agreement and could be a substantial change |
| Whether the marital settlement’s "bonus/commission" clause precludes finding a substantial change | Clause covers performance-based pay but does not say it covers any and all additional income or new forms of compensation; thus it does not foreclose modification | Clause should be read as a true-up that contemplates additional income, so no modification is needed | Held for appellant: clause only expressly covered bonuses/commissions, not a wholesale change in employment or seven-figure earnings from a new company — the court erred in finding the parties contemplated this magnitude/type of increase |
| Whether the appeal was properly before the appellate court given post-judgment proceedings | Yabush argued appeal became effective when remaining matters were resolved and proper notices were filed | Melinda argued earlier filings were premature because other matters remained pending (no Rule 304(a) finding) | Appellate court found jurisdiction: post-entry of a December 4, 2020 agreed custody order all matters were resolved and the appeal complied with Rules 301/303; appellate review proceeds |
Key Cases Cited
- In re Marriage of Singleteary, 293 Ill. App. 3d 25 (1997) (increase in obligor’s income may constitute a substantial change)
- In re Marriage of Barnard, 283 Ill. App. 3d 366 (1996) (two-step process for modifying a support order: threshold factual finding of change, then recalculation)
- In re Marriage of Armstrong, 346 Ill. App. 3d 818 (2004) (manifest-weight standard applies to factual determination that a substantial change occurred)
- Blum v. Koster, 235 Ill. 2d 21 (2009) (interpretation of settlement agreements reviewed de novo)
- In re Parentage of J.W., 2013 IL 114817 (2013) (definition of manifest weight of the evidence)
- In re Marriage of Bates, 212 Ill. 2d 489 (2004) (deference to reasonable inferences supporting trial court when evidence permits multiple inferences)
- In re Marriage of Gutman, 232 Ill. 2d 145 (2009) (finality and appealability principles when multiple claims remain)
- Koon v. United States, 518 U.S. 81 (1996) (abuse of discretion standard where trial court commits legal error)