In re Marriage of Bradley ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Bradley, 2011 IL App (4th) 110392
Appellate Court In re: the Marriage of VICKI BRADLEY, Petitioner-Appellee, v.
Caption BOBBY RAY BRADLEY, Respondent-Appellant.
District & No. Fourth District
Docket No. 4-11-0392
Argued November 17, 2011
Filed December 6, 2011
Held In marriage dissolution proceedings, the trial court did not err in barring
(Note: This syllabus respondent from claiming that a Missouri farm respondent obtained from
constitutes no part of his mother was his nonmarital property, the trial court did not err as to the
the opinion of the court amount of attorney fees awarded to petitioner, the maintenance awarded
but has been prepared to petitioner was not an abuse of discretion, there was no error in
by the Reporter of determining respondent’s net income and setting his child support
Decisions for the obligation, and a payable on death account was properly classified as
convenience of the marital property.
reader.)
Decision Under Appeal from the Circuit Court of Adams County, No. 09-D-102; the Hon.
Review Mark A. Drummond, Judge, presiding.
Judgment Affirmed.
Counsel on Gerald L. Timmerwilke (argued), of Blickhan Timmerwilke, Woodworth
Appeal & Larson, of Quincy, for appellant.
Andrew C. Schnack III (argued), of Schnack Law Offices, of Quincy, for
appellee.
Panel JUSTICE McCULLOUGH delivered the judgment of the court, with
opinion.
Justices Steigmann and Pope concurred in the judgment and opinion.
OPINION
¶1 On April 3, 2009, petitioner, Vicki Bradley, petitioned for dissolution of her marriage to
respondent, Bobby Ray Bradley. On April 12, 2011, the trial court entered a judgment
dissolving the marriage, addressing issues of property distribution and maintenance.
¶2 Bobby appeals, arguing (1) the trial court erred by barring his claim that a farm was
nonmarital property, (2) the trial court erred in the amount it awarded Vicki for her attorney
fees, (3) the trial court’s maintenance award of $250 per week was an abuse of discretion,
(4) the trial court erred in determining Bobby’s net income and setting his child support
obligation, and (5) the trial court erred in finding a payable on death account was marital
property. We affirm.
¶3 Bobby and Vicki were married on November 28, 1992. Two children were born during
the marriage, Denver (September 17, 1993) and Sierra (November 15, 1995). On April 3,
2009, Vicki filed a petition for dissolution of marriage.
¶4 On July 30, 2009, the trial court ordered pretrial affidavits to be filed on or before
November 12, 2009, and set a trial date of November 20, 2009. The affidavits were to
identify all contested issues and address marital and nonmarital property and its value.
¶5 On August 5, 2009, Vicki filed a motion to compel, stating Bobby “failed to respond to
the Interrogatories with regard to real estate” and seeking attorney fees and costs against
Bobby. On August 13, 2009, the trial court ordered discovery to be completed within seven
days, and also on August 13, 2009, Bobby filed a certificate stating he forwarded to Vicki’s
counsel the answer to interrogatories and compliance with request for production on that
same day.
¶6 On August 20, 2009, the trial court entered an order stating “[n]either party shall sell,
convey, dispose of, hide, mortgage, give away, hide, transfer or allow assets to be transferred
to any third party pending this proceeding.” (Emphasis in original.)
¶7 Vicki filed her pretrial memorandum on November 17, 2009. She had recently secured
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part-time employment earning minimum wage. Bobby worked as a lineman with gross
earnings of $55,995.91, as of July 4, 2009. According to Vicki, the parties owned a home in
Quincy, Illinois, and a farm in Missouri. Bobby also filed a pretrial affidavit on November
17, 2009. He worked as a lineman. “He also rents farmland and farms on a part time basis.”
Bobby identified the home in Quincy, Illinois, as marital property but did not reference a
farm in Missouri.
¶8 At the hearing on November 20, 2009, Vicki advised the trial court that Bobby failed to
identify in his answer to interrogatories and pretrial affidavit substantial acreage he owned
in Missouri. Vicki was told by another individual, approximately two weeks earlier, that
Bobby owned the Missouri farm. Bobby advised the court that the property belonged to his
mother and he did not know the property had been deeded to him. Bobby stated he did not
pay his mother for the property. The court continued the matter for additional discovery,
stating:
“I’ll reserve the issue of sanctions and fees. I’ll reserve the issue of false pleadings on the
pretrial affidavit. Mr. Timmerwilke says he had no idea concerning this, and I have to,
at this point, take him at his word, but the bottom line is his client signed this attesting
to the facts, and he will have to show that he had absolutely no idea that his mother, back
in 2005, had deeded a farm to him.”
¶9 On January 20, 2010, Bobby filed a supplement to his pretrial affidavit stating he claimed
the 118-acre farm as his nonmarital property, “being a gift from his mother.” Further, Bobby
stated the property had been appraised at $133,600.
¶ 10 On April 30, 2010, Bobby filed an amended supplement to his pretrial affidavit claiming
a “final structured settlement payment of $90,000 as non-marital from an accident which he
had in 1983 which was settled in 1985.” Bobby stated that a portion of the settlement
proceeds was given to his mother “as partial consideration for the farm.” According to
Bobby, “[t]he farm was provided at a great discount.”
¶ 11 On May 10, 2010, Bobby filed a second amended supplement to his pretrial affidavit
attaching “the settlement annuity from his 1983 accident as his claimed non-marital
property.” On May 21, 2010, Bobby filed his third amended supplement to his pretrial
affidavit attaching a warranty deed and photographs of a property he alleged Vicki gave a
family member in 2003, for “no consideration.”
¶ 12 The trial court heard evidence on May 5, 2010, May 24, 2010, and June 14, 2010. Bobby,
age 51 at the time of the May 2010 hearings, worked as a lineman. An April 30, 2010, pay
stub showed Bobby earned approximately $29,427, through April 24, 2010. “He also rents
farmland and farms on a part time basis.” Vicki, age 46, completed two years of college
approximately 20 years ago, and presently works as a receptionist with gross earnings of
approximately $320 per week.
¶ 13 On November 18, 2010, the trial court entered an order stating, in part:
“The bottom line is that the Respondent lied in this case and lied more than once. Boiled
down to its simplicity, the Respondent’s argument to this court is, ‘O.K., she caught me,
make me pay some of her fees.’ If courts adopt this rather simplistic approach to lying,
then lying to gain an advantage just becomes an economic equation. If the stakes far
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exceed the potential fees, then telling the truth simply becomes a cost/benefit analysis.”
¶ 14 Based upon the “facts and the applicable law,” the trial court adopted Vicki’s “written
proposal for distribution” finding her requests “fair and equitable” and “not overreaching.”
The court ordered Bobby to pay $6,023 of Vicki’s attorney fees, biweekly child support in
the amount of $750, and maintenance in the amount of $250 per week.
¶ 15 On January 6, 2011, Bobby filed a motion for clarification of the trial court’s order
entered on November 18, 2010. On March 25, 2011, the trial court entered an order awarding
Bobby “the 118 acres in Missouri and, as a sanction under Supreme Court Rule 219(c), bars
his claim that this land is non-marital and values that land at $227,000.” The court set forth
the following in support of the sanction:
“It is more accurate to state that the court, pursuant to Supreme Court Rule 219(c)(iii),
is barring the Father [(Bobby)] from maintaining his claim that it is non-marital. It
appears to this court that the $36,000 paid for the farmland was from a non-marital
source, being a personal injury claim which accrued before the marriage, that the Father
segregated the funds, that no marital funds were commingled in the Father’s separate
account and that the total price was paid from these funds. The Father finds himself in
this position due to the following chronology:
May 13, 2005 Property purchased by check signed by Father in
the amount of $36,000.00 payable to his mother
and memo on check reads ‘120 AC. Homeplace’
2005 forward Real estate taxes on 118 acres paid by Father
2006 forward Expenses on 118 acres appear on Father’s joint
tax returns with Mother
April 3, 2009 Petition for dissolution of marriage filed.
August 10, 2009 Father answers Interrogatories, under oath, and
does not reveal the 118 acres in response to
Interrogatory #9 requesting a listing of all real
estate in which he has an interest nor Interrogatory
#8 where he is asked to list all property, real or
personal, that he claims as non-marital.
November 17, 2009 Files Pretrial Affidavit, under oath, and does not
list the 118 acres under either marital or non-
marital property.
November 20, 2009 Sat next to attorney in court while attorney made
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the following statements to the court:
‘... he did not see the deed from his mother.’
‘He did not–he did not see the deed.’
‘So, he had not had knowledge that this property had been
deeded.’
‘He did not know about it through the lawyers.’
‘And, judge, for the record, I want to state, he has not paid
any consideration for that. He has not given her any money,
whatsoever, for that property, so it is going to be non-marital.’
January 20, 2010 Files, under oath, Supplement to Pretrial
Affidavits stating:
‘Respondent hereby claims the real estate as shown on
Exhibit A, as his non-marital property being a gift from his
mother as Exhibit A-1.’
March 9, 2010 Sends compliance with Second Supplemental
Request for Production which states, ‘All
information concerning these properties has been
disclosed in the Initial Discovery, Pre-Trial
Affidavit and Supplement to Pre-Trial Affidavit.’
April 5, 2010 Court enters order requiring any Amendments to
Pretrial Affidavits to be filed by May 1, 2010.
April 30, 2010 Father files Amended Supplement to Pretrial
Affidavit claiming he paid partial consideration
for the 118 acres but that the payment was from
non-marital funds.”
The court found Bobby’s conduct willful and the sanction “sufficient,” stating “[t]he present
case involves both problems of omission and commission and over an extended period of
time.”
¶ 16 On April 12, 2011, the trial court entered a judgment dissolving the marriage, addressing
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issues of property distribution and maintenance.
¶ 17 This appeal followed.
¶ 18 Bobby first argues that the trial court’s barring of his claim that the Missouri farm was
nonmarital property was too harsh a sanction. Bobby admits he lied but contends he “never
refused to follow a court order” and “he immediately complied.” Bobby suggests “[t]he only
relevant consideration is a potential sanction of reasonable attorney fees for the additional
time expended by Vicki’s attorney.”
¶ 19 Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) authorizes a trial court to impose
a sanction on a party who unreasonably fails to comply with the court’s discovery rules or
orders. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 120, 692 N.E.2d 286, 289
(1998). An offending party may be debarred from maintaining any particular claim,
counterclaim, third-party complaint, or defense relating to that issue. Ill. S. Ct. R. 219(c)(iii)
(eff. July 1, 2002). “In lieu of or in addition to the foregoing, the court, upon motion or upon
its own initiative, may impose upon the offending party or his or her attorney, or both, an
appropriate sanction, which may include an order to pay to the other party or parties the
amount of reasonable expenses incurred as a result of the misconduct, including a reasonable
attorney fee, and when the misconduct is wilful, a monetary penalty.” Ill. S. Ct. R. 219(c)
(eff. July 1, 2002).
¶ 20 The trial court has discretion to impose a particular sanction and its decision will not be
reversed absent a clear abuse of discretion. Shimanovsky, 181 Ill. 2d at 120, 692 N.E.2d at
289. The sanction imposed by the trial court should ensure discovery and a trial on the
merits. The purpose of the sanction is to coerce compliance with discovery orders, not to
punish the remiss party. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291. Dismissal or
entry of a default judgment is a severe sanction and should be invoked only in cases where
the party’s actions exhibit a deliberate, contumacious, or unwarranted disregard of the court’s
authority and after all the other court’s enforcement powers have failed to advance the
litigation. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291.
¶ 21 The factors used to determine if a trial court abused its discretion in determining the
appropriate sanction include the following: (1) the surprise to the adverse party, (2) the
prejudicial effect of the proffered evidence or testimony, (3) the nature of the evidence or
testimony, (4) the diligence of the adverse party in seeking discovery, (5) the timeliness of
the adverse party’s objection to the evidence or testimony, and (6) the good faith of the party
offering the evidence or testimony. No single factor is determinative. Shimanovsky, 181 Ill.
2d at 124, 692 N.E.2d at 291.
¶ 22 Applying these factors to the present case, the trial court acted within its discretion by
barring Bobby’s claim that the Missouri farm was nonmarital property. Vicki had no idea that
Bobby was deeded the Missouri farm until approximately two weeks before trial. The fact
that she was told Bobby owned the Missouri farm approximately two weeks before trial does
not obliterate the surprise factor. Vicki did not have an adequate opportunity to investigate
the circumstances by which the property was deeded to Bobby and to secure an appraisal. An
enormous potential for prejudice lies if financial information is missing due to a party’s
failure to comply with discovery. See In re Marriage of Barnett, 344 Ill. App. 3d 1150, 1153,
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802 N.E.2d 279, 281 (2003). The Missouri farm was the most significant asset before the
court, valued at $227,000. Bobby initially refused to identify in his answer to interrogatories
and pretrial affidavit the substantial acreage he owned in Missouri and then repeatedly lied
to the court concerning his acquisition of the property.
¶ 23 Vicki filed and sent interrogatories and a request for production on approximately May
1, 2009, and filed a motion to compel answers to the interrogatories on August 5, 2009. She
secured a court order demanding compliance with her discovery, but at the hearing on
November 20, 2009, Vicki advised the trial court that Bobby failed to identify in his answer
to interrogatories and pretrial affidavit the substantial acreage he owned in Missouri. A
review of the record reveals Vicki timely objected to Bobby’s failure to comply with
discovery rules and court orders.
¶ 24 Bobby presented no evidence he made a good-faith effort to provide information
concerning the substantial acreage he owned in Missouri. Bobby failed to comply with
discovery requests and when confronted, repeatedly lied to the court concerning his
acquisition of the property.
¶ 25 The trial court sanctioned a flagrant violation of the court’s discovery rules and orders.
Vicki faced the potential of being blindsided by undisclosed evidence. The less drastic
alternative sanction suggested by Bobby, awarding Vicki reasonable attorney fees, does not
cure the problems of an unbalanced consideration of the issues and an unfair exercise in
brinkmanship. It is reasonable to characterize this as “a deliberate and contumacious
disregard for the court’s authority.” Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68, 651
N.E.2d 1071, 1081 (1995). The court acted within its discretion in barring Bobby’s claim that
the Missouri farm was nonmarital property.
¶ 26 Bobby next argues that the trial court erred in the amount it awarded Vicki 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). A trial court abuses its discretion when it acts arbitrarily,
without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds
of reason and ignores recognized principles of law, resulting in substantial injustice. In re
Marriage of Marsh, 343 Ill. App. 3d 1235, 1240, 799 N.E.2d 1037, 1041 (2003). The trial
court did not abuse its discretion in the amount of attorney fees it awarded.
¶ 27 In her petition for dissolution of marriage filed on April 3, 2009, Vicki sought an order
that Bobby “pay the cost of Petitioner’s attorney’s fees and court costs incurred by her as a
result of the foregoing cause of action.” In her motion to compel filed on August 5, 2009,
Vicki sought an award of attorney fees pursuant to Rule 219(c). In her pretrial memorandum
filed on November 17, 2009, Vicki sought an order that Bobby pay her attorney fees in the
amount of $5,292. The trial court heard evidence through June 14, 2010. In the trial court’s
order filed on November 18, 2010, the court adopted Vicki’s “written proposal for
distribution.” Vicki identified attorney fees in the amount of $5,292 as of November 9, 2009,
and $11,315.80 as of June 10, 2010, and noted an increase in attorney fees between
November 2009 and June 2010 of $6,023.80. The trial court awarded Vicki $6,023 in
attorney fees, the fees that had accrued between November 2009 and June 2010.
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¶ 28 A trial court may award attorney fees as sanctions when a party’s misconduct has caused
another party to incur fees. Smith v. Gleash, 325 Ill. App. 3d 79, 85, 757 N.E.2d 101, 105
(2001). The only restriction imposed by Rule 219(c) is that the award of attorney fees must
be related to and be the result of the specific misconduct. Smith, 325 Ill. App. 3d at 85, 757
N.E.2d at 105-06.
¶ 29 Bobby’s misconduct in this case involved “both problems of omission and commission
and over an extended period of time.” At the hearing on November 20, 2009, Vicki advised
the trial court that Bobby failed to identify in his answer to interrogatories and pretrial
affidavit substantial acreage he owned in Missouri. The trial court heard evidence through
June 14, 2010. On November 18, 2010, the trial court entered an order finding Bobby “lied
in this case and lied more than once.” The court barred Bobby from maintaining his claim
that the Missouri farm was nonmarital property and awarded Vicki $6,023 in attorney fees,
the fees that had accrued between November 2009 and June 2010. Considering Bobby’s
disregard for the trial court’s authority, the trial court’s award of attorney fees was not
improper. See Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614
N.E.2d 1194, 1198-99 (1993) (decision to impose a particular sanction under Rule 219(c) is
within the discretion of the trial court and, thus, only a clear abuse of discretion justifies
reversal).
¶ 30 Alternatively, the record in this case more clearly reflects that the trial court awarded
attorney fees pursuant to the Illinois Marriage and Dissolution of Marriage Act (Dissolution
Act), and not Rule 219(c). Section 508(a) of the Dissolution Act provides:
“The court from time to time, after due notice and hearing, and after considering the
financial resources of the parties, may order any party to pay a reasonable amount for his
own or the other party’s costs and attorney’s fees. *** At the conclusion of the case,
contribution to attorney’s fees and costs may be awarded from the opposing party in
accordance with subsection (j) of [s]ection 503.” 750 ILCS 5/508(a) (West 2008).
Section 503(j) states, in pertinent part, as follows:
“After proofs have closed in the final hearing on all other issues between the parties ***,
a party’s petition for contribution to fees and costs incurred in the proceeding shall be
heard and decided, in accordance with the following provisions:
***
(2) Any award of contribution to one party from the other party shall be based on
the criteria for division of marital property under this [s]ection 503 and, if
maintenance has been awarded, on the criteria for an award of maintenance under
[s]ection 504.” 750 ILCS 5/503(j) (West 2008).
¶ 31 Maintenance was awarded in this case. Thus, the trial court was directed by section
503(j)(2) to consider the criteria for an award of maintenance under section 504. In making
its award, the court considered the relevant factors itemized in section 504(a). The court also
considered the unnecessary increase in the cost of litigation by Bobby in making its award
to Vicki. The language in section 504 allows a court to consider “any other factor that the
court expressly finds to be just and equitable” when determining a fee award under section
508(a). 750 ILCS 5/504(a)(12) (West 2008). Unnecessarily increasing the cost of litigation
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is a factor the court may consider in allocating attorney fees. See In re Marriage of Haken,
394 Ill. App. 3d 155, 161, 914 N.E.2d 739, 744 (2009).
¶ 32 The relative financial circumstances of the parties merited a contribution toward Vicki’s
fees under section 508(a). Additionally, Bobby unnecessarily increased the costs of the
litigation. This was a relevant factor the trial court could consider in making an award since
it may consider “any other factor that the court expressly finds to be just and equitable” when
making an award of attorney fees. 750 ILCS 5/504(a)(12) (West 2008); Haken, 394 Ill. App.
3d at 162, 914 N.E.2d at 744. The trial court did not abuse its discretion in the amount of
attorney fees it awarded.
¶ 33 Bobby next argues the trial court’s maintenance award of $250 per week was an abuse
of discretion. We disagree.
¶ 34 A trial court’s determination as to the awarding of maintenance is presumed to be correct.
In re Marriage of Donovan, 361 Ill. App. 3d 1059, 1063, 838 N.E.2d 310, 314 (2005). The
amount of a maintenance award lies within the sound discretion of the trial court, and this
court must not reverse that decision unless it was an abuse of discretion. In re Marriage of
Nord, 402 Ill. App. 3d 288, 292, 932 N.E.2d 543, 548 (2010). An abuse of discretion occurs
where no reasonable person would take the view adopted by the trial court. Nord, 402 Ill.
App. 3d at 292, 932 N.E.2d at 548. The party seeking reversal of a maintenance award bears
the burden of showing the trial court abused its discretion. Nord, 402 Ill. App. 3d at 292, 932
N.E.2d at 548.
¶ 35 Section 504(a) of the Dissolution Act sets forth the following 12 factors for a trial court
to consider in deciding whether to grant a maintenance award:
“(1) the income and property of each party, including marital property apportioned
and non[ ]marital property assigned to the party seeking maintenance;
(2) the needs of each party;
(3) the present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking
maintenance due to that party devoting time to domestic duties or having forgone or
delayed education, training, employment, or career opportunities due to the marriage;
(5) the time necessary to enable the party seeking maintenance to acquire appropriate
education, training, and employment, and whether that party is able to support himself
or herself through appropriate employment or is the custodian of a child making it
appropriate that the custodian not seek employment;
(6) the standard of living established during the marriage;
(7) the duration of the marriage;
(8) the age and the physical and emotional condition of both parties;
(9) the tax consequences of the property division upon the respective economic
circumstances of the parties;
(10) contributions and services by the party seeking maintenance to the education,
training, career or career potential, or license of the other spouse;
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(11) any valid agreement of the parties; and
(12) any other factor that the court expressly finds to be just and equitable.” 750 ILCS
5/504(a) (West 2008).
¶ 36 In considering these factors, the trial court is not required to give them equal weight “so
long as the balance struck by the court is reasonable under the circumstances.” In re
Marriage of Miller, 231 Ill. App. 3d 480, 485, 595 N.E.2d 1349, 1353 (1992). “Although the
trial court must consider all the relevant statutory factors, it need not make specific findings
as to the reasons for its decisions.” In re Marriage of Reynard, 378 Ill. App. 3d 997, 1004,
883 N.E.2d 535, 541 (2008). “The benchmark for determining the amount of maintenance
is the recipient’s reasonable needs in light of the standard of living established during the
marriage.” In re Marriage of Culp, 341 Ill. App. 3d 390, 398, 792 N.E.2d 452, 459 (2003).
¶ 37 Bobby argues Vicki was not entitled to an award of maintenance in light of the amount
of property awarded to her. The trial court entered a judgment of dissolution of marriage,
awarding each party his or her personal property and dividing equally the remaining marital
property, with each receiving $159,451. The trial court awarded Vicki the marital residence
($64,413), the 2001 Suburban ($9,500), a retirement account ($1,306), a 401(k) account
($16,923), a Prudential Life account ($261), and a tax refund ($6,811) and ordered she pay
credit card debt in the amount of $6,225.
¶ 38 The trial court awarded Bobby the Missouri farm ($227,000), two vehicles ($3,800), a
Hartford Life account ($1,591), a boat ($500), and a payable on death (POD) account
($7,119) and ordered he pay credit card debt in the amount of $14,097. The trial court also
ordered Bobby to make an equalizing payment to Vicki of $66,462.
¶ 39 Additionally, the trial court ordered Bobby to pay maintenance of $250 per week, stating:
“With child support, the Mother will receive $19,500 per year, which is non-taxable.
Her taxable income is $16,640 from her employment. The court finds that she is in
need of maintenance in the sum of $250.00 per week which totals $13,000 per year.
This results in gross income to her household in the amount of $49,140 for the
support of herself and the two children. Maintenance is to be reviewed when the
youngest child graduates from high school.”
¶ 40 The parties were married for approximately 17 years before the initiation of these
proceedings. The trial court awarded each party his or her personal property and divided
equally the remaining marital property. Bobby has the greater present and future potential to
earn income and acquire assets. Vicki, who was 46 years old at the time of the hearing,
completed two years of college approximately 20 years ago, has little job experience, and
presently works as a receptionist with gross earnings of approximately $320 per week. The
trial court based its maintenance award on Bobby’s income of approximately $29,427,
through April 24, 2010. The court awarded Vicki $250 per week, or $13,000 per year in
maintenance. Thus, Vicki’s maintenance presently represents approximately 14% of Bobby’s
income and will be reviewed when Sierra (born November 15, 1995) graduates from high
school. The court’s order reflects its careful consideration of each applicable factor to be
considered under sections 504(a)(1) through (a)(12) (750 ILCS 5/504(a) (West 2008)). The
court did not abuse its discretion in awarding Vicki $250 per week in maintenance.
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¶ 41 Bobby next contends the trial court erred in determining his net income and setting his
child support obligation. We disagree.
¶ 42 Section 505 of the Dissolution Act requires the court to set the minimum amount of child
support for two children at 28% of the noncustodial parent’s net income, unless the court
finds reason to deviate from this figure. 750 ILCS 5/505(a)(1), (a)(2) (West 2008). Section
505(a)(3) defines “net income” as the total of all income from all sources minus the
following deductions: (1) federal income tax, (2) state income tax, (3) social security
withholdings, (4) mandatory retirement contributions, (5) union dues, (6) dependent and
individual health insurance premiums, (7) prior obligations of support or maintenance, and
(8) expenditures for repayment of debts that represent reasonable and necessary expenses for
the production of income. 750 ILCS 5/505(a)(3) (West 2008). “Findings of a trial court as
to net income and the awarding of child support are within the discretion of the trial court
and will not be disturbed on review absent an abuse of that discretion.” In re Marriage of
Freesen, 275 Ill. App. 3d 97, 103, 655 N.E.2d 1144, 1148 (1995).
¶ 43 The trial court calculated a biweekly child support figure of $697.36, based solely on
Bobby’s earnings as a lineman. The court made clear the figure of $697.36 did not include
farm income and ordered Bobby to pay $750 biweekly, an additional $52.64 biweekly, “due
to the farm income.” The court stated the following:
“With regard to his farm income the Father, for the year 2008, listed farm income in the
amount of $21,648 and expenses of $13,774 on Pet. Ex. #8. However, on his 2008 tax
return he lists a loss on line 18 of $9,523. Again, his figures simply do not add up.”
Bobby does not suggest a basis for the discrepancy in the numbers referenced by the trial
court.
¶ 44 The Dissolution Act requires the trial court to consider “all income from all sources” in
the computation of child support. 750 ILCS 5/505(a)(3) (West 2008). Bobby argues his tax
returns show only losses from his farm work, and no income. “Income” for tax purposes is
not synonymous with “income” for determining child support. See In re Marriage of
McGowan, 265 Ill. App. 3d 976, 979, 638 N.E.2d 695, 697-698 (1994). The purpose of the
two calculations are different. While the Internal Revenue Code is concerned with reaching
an amount of taxable income, the support provisions in the Dissolution Act are concerned
with reaching the amount of parental income in order to determine the sum each parent can
pay for the support of their child. McGowan, 265 Ill. App. 3d at 979, 638 N.E.2d at 698. A
trial court has broad discretion to determine whether a parent’s claimed business losses are
reasonable for purposes of calculating child support.
¶ 45 Bobby also argues his overtime “greatly inflates [his] income and should not have been
used” in the computation of child support. While it may be true, as Bobby contends, that such
income is uncertain to continue, the fact of its existence in the past is something which the
trial court properly took into consideration. See In re Marriage of Reyna, 78 Ill. App. 3d
1010, 1014, 398 N.E.2d 641, 645 (1979). If those sources of income do not continue to be
available in the future, then Bobby may seek a modification of his support obligation. The
evidence supported the trial court’s determination of Bobby’s net income and its calculation
of his child support obligation.
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¶ 46 Bobby next argues that the trial court erred in finding the POD account was marital
property. Contrary to his argument that he “only incurred losses from his farm,” and no
income for purposes of calculating child support, Bobby now argues “the source of the cash
in the P.O.D. account was undisputed; it came from farm income.”
¶ 47 “With regard to the classification of property as marital or nonmarital, the decision of the
trial court will not be disturbed on review unless it is contrary to the manifest weight of the
evidence.” In re Marriage of Dunlap, 294 Ill. App. 3d 768, 777, 690 N.E.2d 1023, 1029
(1998). Section 503(a)(8) of the Dissolution Act provides that income from the nonmarital
property of one spouse is marital income if the income is attributable to the personal effort
of a spouse. 750 ILCS 5/503(a)(8) (West 2008).
¶ 48 Bobby argues that because the Missouri farm “was both a gift to Bobby and was paid for
by Bobby through non-marital property *** the funds in Bobby’s P.O.D. are non-marital.”
We disagree. Because Bobby’s personal efforts produced the farm income, and “the source
of the cash in the P.O.D. account was undisputed; it came from farm income,” the POD
account was marital property. Even if the income from Bobby’s nonmarital property was not
marital income, his contribution of those funds to the household is presumed, absent rebuttal
by clear and convincing evidence, to be a gift to the marital estate. See Dunlap, 294 Ill. App.
3d at 779, 690 N.E.2d at 1030. The trial court did not err in finding the POD account was
marital property.
¶ 49 In closing, this court commends the trial court’s thoughtful analysis and careful
explanation of its findings, which we found most helpful.
¶ 50 For the reasons stated, we affirm the trial court’s judgment.
¶ 51 Affirmed.
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