In re the Marriage of O'Daniel ( 2008 )

Filed 6/2/08 NO. 4-07-0250
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
JEROME B. O'DANIEL, JR., ) Circuit Court of
Petitioner-Appellee, ) Sangamon County
and ) No. 94D397
SUSAN B. O'DANIEL, )
Respondent-Appellant. ) Honorable
) Steven H. Nardulli,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In September 2006, the trial court issued a
postjudgment order modifying terms of the April 1995 judgment
dissolving the marriage of Jerome and Susan O'Daniel. In Febru-
ary 2007, after both Jerome and Susan filed motions to reconsider
the court's September 2006 order, the court filed another
postjudgment order. Susan appeals both the September 2006 and
February 2007 postjudgment orders, arguing the court erred (1) in
calculating the child support due from Jerome, (2) in failing to
hold Jerome in contempt for failing to maintain health insurance
for their children, and (3) in not ordering Jerome to pay enough
of Susan's attorney fees. We affirm.
As the parties are aware of the facts in this case, we
only briefly discuss those facts relevant to the issues Susan
raises. On June 1, 2005, Jerome filed a petition to modify
judgment, alleging (1) the custodial circumstances of his and
Susan's four children had changed and that (2) he had been laid
off from his employment with Levi, Ray & Shoup. Over the next
month and a half, Susan filed two petitions for rule to show
cause, alleging Jerome had failed (1) to provide income-tax
information as required by the judgment, (2) to pay 75% of the
children's medical and dental expenses not covered by insurance,
and (3) to provide medical insurance as required by the judgment.
On October 7, 2005, Susan filed a petition to modify the judg-
ment, seeking (1) modification of (a) child support and (b) the
allocation of dependency exemptions and (2) proof of life insur-
ance.
On July 6, 2005, Jerome obtained employment with CDS
Office Technologies (CDS), where he earned a monthly salary of
$4,166.66 plus commissions. He lost that job on November 8,
2005. He again received unemployment. In April 2006, Jerome
began working for Professional Liability Management.
In his September 2006 written trial brief, Jerome
argued the trial court should take into account his periods of
unemployment when setting child support and submitted child
support be set in the amount of (1) $600 per month for the
periods from June 15, 2005, through December 31, 2005, (2) $400
per month for the period from January 1, 2006, through June 30,
2006, and (3) $600 per month thereafter. He argued the money he
withdrew from his individual retirement account (IRA) in 2005 and
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2006 should not count as income for purposes of determining the
amount of child support he owed because he used that money "to
meet his mortgage and other expenses, to pay the [COBRA (Consoli-
dated Omnibus Budget Reconciliation Act)] cost of insurance, and
[to] make some child[-]support payments during time he was on
unemployment." According to Jerome's argument, "The funds that
[he] had in his IRA were, just like any savings or bank account,
already accumulated funds." He also argued any money he earned
from a rental property he owned with Bob Shaver went to Shaver
because Shaver advanced Jerome's share of the purchase price of
the property. According to Jerome's trial brief, "For support
purposes the rental property is a wash, where the income received
is used to pay the debt created to secure the income."
In her September 2006 written argument to the trial
court, Susan argued the money Jerome withdrew from his IRA
($43,000) and half of the rental income earned from the rental
property ($739) in 2005 should count as income for determining
child support. According to Susan's argument, Jerome's child
support for 2005 should have been set at $2,067.40 per month for
the period between June 1 and December 31. As for 2006, Susan
argued the court should include the following in Jerome's pro-
jected gross income: (1) rental income of $8,340 (2) $57,666.10
in withdrawals from his IRA (Jerome had withdrawn $28,864.72 and
anticipated withdrawing the rest), (3) $7,600 in unemployment
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income, and (4)$33,332 in projected income for the period May
through December 2006 from his employment with Professional
Liability Management.
Susan stated the trial court should deduct estimated
health-insurance premiums of $8,064 ($672 per month) in determin-
ing child support. Susan noted her and Jerome's second oldest
child attained her majority on June 3, 2006, when she graduated
from high school. As a result, Susan argued the court should
find Jerome owed child support of $1,964 per month for the first
five months of 2006 and $1,718 per month thereafter.
In its September 2006 order, the trial court declined
Susan's request to include the IRA withdrawals Jerome made while
he was unemployed for purposes of determining child support. The
court also declined to include any income from the rental prop-
erty in which Jerome had a partial ownership interest. The court
set child support at $973 per month for the couple's three
children who had not reached majority for the period between June
1 and October 31, 2005. The court based this figure on the fact
Jerome's net income before paying child support was $3,039 per
month while he was working at CDS. However, Jerome was not
working for CDS during the month of June 2005, as he was unem-
ployed. For the period between November 1, 2005, and May 31,
2006, the court set child support at $791 per month for three
children based on Jerome's net income of $2,472.42 per month at
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Professional Liability Management after deducting $720 per month
for the cost of medical insurance for the children through COBRA
obtained from CDS. The court did this even though Jerome did not
begin working at Professional Liability Management until April
2006 and was unemployed during a significant portion of this
period of time. Effective June 1, 2006, the court lowered the
child support to $692 per month because only two of the children
had not reached the age of majority.
The trial court also ordered Jerome to continue to
provide the children with medical insurance as long as it was
available to him. When it was no longer available, Jerome and
Susan were to split the cost of medical insurance for the chil-
dren. The court also ruled that the parties were to split
equally the out-of-pocket medical expenses for the children.
The trial court further found Jerome's failure to
provide medical insurance for the children during certain periods
of his unemployment was not willful given Jerome's financial
condition at the time. The court did find Jerome in willful
contempt for failing to pay his share of medical expenses as
ordered by the court. The court also ordered Jerome to pay $900
of Susan's attorney fees that it found were "reasonably incurred
by Susan relative to her enforcement of the orders with regard to
production of income[-]tax information, life[-]insurance informa-
tion, and the payment of medical expenses not otherwise covered
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by medical insurance."
In October 2006, Susan filed a motion to reconsider the
trial court's postjudgment order, in which she argued the points
she raises on appeal.
In February 2007, the trial court filed another
postjudgment order. In that order, the court found once again
that the withdrawals Jerome made from his IRA should not be
included in his gross income when calculating child support. The
court continued to deny Susan's efforts to have Jerome held in
contempt for failing to maintain medical insurance while he was
unemployed. The court also denied Susan's request for additional
attorney's fees.
Jerome has not filed an appellee's brief. We
nevertheless still choose to review this case on its merits. Our
supreme court has stated:
"[T]he judgment of a trial court should not
be reversed pro forma for the appellee's
failure to file its brief as required by
rule. A considered judgment of the trial
court should not be set aside without some
consideration of the merits of the appeal.
* * *
We do not feel that a court of review
should be compelled to serve as an advocate
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for the appellee or that it should be re-
quired to search the record for the purpose
of sustaining the judgment of the trial
court. It may, however, if justice requires,
do so. Also, it seems that if the record is
simple and the claimed errors are such that
the court can easily decide them without the
aid of an appellee's brief, the court of
review should decide the merits of the ap-
peal. In other cases if the appellant's
brief demonstrates prima facie reversible
error and the contentions of the brief find
support in the record the judgment of the
trial court may be reversed." First Capitol
Mortgage Corp. v. Talandis Construction
Corp., 63 Ill. 2d 128, 131-33, 345 N.E.2d
493, 494-95 (1976).
Susan first argues the trial court erred in failing to
properly calculate the child support due from Jerome. We do not
disturb a trial court's decision to modify child support unless
we find the court abused its discretion. Posey v. Tate, 275 Ill.
App. 3d 822, 825, 656 N.E.2d 222, 224 (1995). An abuse of
discretion occurs only where no reasonable person would take the
view adopted by the court. Posey, 275 Ill. App. 3d at 825, 656
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N.E.2d at 224. Susan argues the court abused its discretion
because it ignored substantial sums of income earned by Jerome in
2005 and 2006, resulting in a support award less than required by
law.
According to Susan, the trial court should have in-
cluded the withdrawals Jerome made from his IRA in determining
his income. Susan relies on the Second District's decision in In
re Marriage of Lindman, 356 Ill. App. 3d 462, 824 N.E.2d 1219
(2005), for this proposition. In Lindman, the Second District
held that "IRA disbursements are 'income' for purposes of calcu-
lating 'net income' under section 505 of the [Illinois Marriage
and Dissolution of Marriage Act (Act)] (750 ILCS 5/505 (West
2002))." Lindman, 356 Ill. App. 3d at 466-67, 824 N.E.2d at
1223.
The Second District reached this result by relying on
the supreme court's decision in In re Marriage of Rogers, 213
Ill. 2d 129, 820 N.E.2d 386 (2004). The Lindman court stated:
"The supreme court has counseled that, con-
sistent with its ordinary meaning, 'income'
is '"something that comes in as an increment
or addition ***: a gain *** that is usu[ally]
measured in money.'" Rogers, 213 Ill. 2d at
136,[ 820 N.E.2d at 390,] quoting Webster's
Third New International Dictionary 1143
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(1986). Additionally, 'income' may be
defined as the money or payment received from
a variety of sources, including investments.
Rogers, 213 Ill. 2d at 137[, 820 N.E.2d at
390], quoting Black's Law Dictionary 778 (8th
ed. 2004).
***
*** Like all of these items, IRA
disbursements are a gain that may be measured
in monetary form. Rogers, 213 Ill. 2d at
136[-37, 820 N.E.2d at 390]. Moreover, IRA
disbursements are monies received from an
investment, that is, an investment in an IRA.
*** Thus, given its plain and ordinary
meaning, 'income' includes IRA
disbursements." Lindman, 356 Ill. App. 3d at
466, 824 N.E.2d at 1223.
It would appear from the above quote that the Second
District would find that any IRA disbursement would constitute
income. We disagree and do not find Rogers supports this
proposition. The Second District's decision does not adequately
take into account that IRAs are ordinarily self-funded by the
individual possessing the retirement account. Except for the tax
benefits a person gets from an IRA and the penalties he or she
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will incur if he or she withdraws the money early, an IRA
basically is no different than a savings account, although the
risks may differ. The money the individual places in an IRA
already belongs to that individual. When an individual withdraws
money he placed into an IRA, he does not gain anything as the
money was already his. Therefore, it is not a gain and not
income. The only portion of the IRA that would constitute a gain
for the individual would be the interest and/or appreciation
earnings from the IRA.
Susan does not state in her brief what portion of
Jerome's IRA was made up of his contributions. As a result, we
cannot say what portion of Jerome's withdrawals might have
constituted income for child-support purposes.
Susan also argues the trial court erred in failing to
include income from Jerome's rental property. The court did not
specify in its postjudgment order why it was not including the
rental income. However, in the trial court, Jerome argued the
money he earned from the rental property went to the other
individual, Bob Shaver, who owned the property with him because
Shaver advanced Jerome's share of the purchase price of the
property. Jerome argued this income would fall under section
505(3)(h) of the Act (750 ILCS 5/505(3)(h) (West 2006)) because
the income received was used to pay the debt created to secure
the income. The trial court evidently agreed. Susan does not
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give us any indication in her brief why the trial court would
have erred in doing so.
Susan also argues the trial court erred in not
considering Jerome's unemployment compensation. While it is true
that at least one court has considered unemployment checks income
(see In re Marriage of Olsen, 229 Ill. App. 3d 107, 117, 593
N.E.2d 859, 867 (1992)), the trial court in this case did not
abuse its discretion in favor of Jerome in not considering those
payments because it ordered him to pay child support during his
periods of unemployment based on his net income while he was
employed. The court set Jerome's child support at $973 per month
for the period between June 1 and October 31, 2005, based on his
net income per month at CDS, even though he was unemployed
between June 1 and his start date at CDS, which was July 6, 2005.
Further, the court ordered Jerome to pay $791 per month, based on
his net monthly income at Professional Liability Management, for
the period between November 1, 2005, and May 31, 2006, even
though he did not begin working at Professional Liability
Management until April 2006 and was unemployed during a large
part of the period between November 1, 2005, and April 1, 2006.
Susan also argues the trial court erred in assuming
Jerome would be paying $720 per month for medical insurance
through COBRA for the 18-month period after November 1, 2005. We
disagree. Based on a check Jerome wrote for $2,688 for four
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months of premiums, Susan argues he is only paying $672 per month
for health-insurance premiums. However, Susan does not point
this court to anything more definitive than this check and asks
this court to speculate that he was paying the same premium for
all four months. From respondent's exhibit No. 35 contained in
the record, which was the information CDS sent to Jerome about
continuing his medical coverage after he lost his employment, it
is quite clear Jerome's monthly premium was scheduled to be $720.
From that exhibit, it appears his premium for November 2005 was
probably prorated because he was not terminated from CDS until
November 8. According to the exhibit:
"As explained in the first few pages of this
communication, your first premium payment
must cover the period beginning on the date
immediately following the date of your
qualifying event. Please complete sign and
date the Election/Enrollment Form and return
it to this office. We will then notify you
of the amount of your initial premium
payment."
Based on the arguments made by Susan, we do not believe
the trial court abused its discretion in the way it set Jerome's
child-support obligations.
Susan next argues the trial court erred in failing to
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hold Jerome in contempt of court for his failure to maintain
health insurance for the children. In its September 2006
postjudgment order, the trial court found Jerome's "failure to
provide medical insurance for any period of time was not willful
given Jerome's financial circumstances at the time." The court
did find Jerome in willful contempt for failing to pay his share
of the children's medical expenses as ordered by the court.
Susan cites no case law in support of her argument. She does
concede this was a discretion call for the court. We do not find
the trial court abused its discretion.
Susan next argues the trial court erred in the amount
it awarded her for her attorney fees. An appellate court reviews
the amount a trial court awards in attorney fees under an abuse-
of-discretion standard. In re Marriage of Powers, 252 Ill. App.
3d 506, 508-09, 624 N.E.2d 390, 392-93 (1993). We do not find
the trial court abused its discretion in the amount of attorney
fees it awarded.
Affirmed.
KNECHT and COOK, JJ., concur.
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