In re Marriage of Ash , 2021 IL App (1st) 200901 ( 2021 )

2021 IL App (1st) 200901FIRST DISTRICT
SIXTH DIVISION
December 17, 2021
No. 1-20-0901
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
ALLISON L. ASH, f/k/a Allison L. Matschke, ) Cook County.
)
Petitioner-Appellee, )
) No. 2013 D 005975
and )
)
MASON H.C. MATSCHKE, ) Honorable
) Regina Scannicchio,
Respondent-Appellant. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Mikva and Oden Johnson concurred with the judgment and opinion.
OPINION
¶1 Respondent, Mason H.C. Matschke, appeals the trial court’s order modifying his
maintenance and support payments. On appeal, Mason contends the court erred in (1) failing to
include loans from petitioner Allison L. Ash’s parents as her income in calculating child support
and maintenance payments; (2) failing to reducing Mason’s share of the children’s medical,
extracurricular, and educational expenses; and (3) ordering an amount of child support that
deviated upward from the statutory guidelines. For the following reasons, we affirm.
¶2 I. JURISDICTION
¶3 On July 27, 2020, the trial court denied Mason’s motion to reconsider, finding no just
reason for delaying enforcement or appeal. He filed his notice of appeal on August 24, 2020.
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Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar.
8, 2016), which allows for appeals although other matters remain pending.
¶4 II. BACKGROUND
¶5 The parties were married on September 23, 1995, and they subsequently had four children:
James born in 1997, Benjamin born in 1999, William born in 2002, and Ian born in 2005. In July
2013, Allison filed a petition for dissolution of marriage. A judgment for dissolution was entered
by the trial court on October 16, 2017.
¶6 At the time of judgment, Mason was employed by Raymond James & Associates
(Raymond James), and Allison was a homemaker. The court averaged Mason’s income from 2013
to 2016 in determining that his gross income was $262,867.50. After subtracting allowable
deductions, Mason’s average net annual income was $186,635.92. As three of the children were
minors, the court set Mason’s child support obligation at $2488.48, to be paid every two weeks.
Mason also would pay 70% of the children’s uncovered medical, dental and therapeutic costs;
100% of their extracurricular expenses; and 70% of their educational expenses.
¶7 James, at 19 years old, had achieved de facto emancipation. Allison maintained, however,
that he was disabled due to alcoholism and attention deficit hyperactivity disorder. The trial court
found there was no evidence that either condition limited James’s major life activities, and it
declined to adjudge him disabled under section 513.5 of the Illinois Marriage and Dissolution of
Marriage Act (Marriage Act) (750 ILCS 5/513.5 (West 2020)). Although James did not qualify for
support from either party, the parties could voluntarily provide support if they chose to do so.
¶8 The trial court also found that Allison was a maintenance candidate. Following the
statutory guidelines, Allison was entitled to a support payment of $3285.83 every two weeks. Since
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the parties were married 21 years, the payments would be permanent or for a period equal to the
duration of the marriage. However, since Allison’s parents funded an irrevocable trust in her name,
the trial court deviated downward from the statutory guidelines and ordered support payments of
$3000 every two weeks for 10 years.
¶9 The court further found that
“ALLISON’s parents loaned her a total of $36,509.39 for expenses relating to the 5400
Franklin property. This Court also finds that the Ashes made payments in the amount of
$206,912.46 on behalf of the parties’ minor children. Therefore it was the parties’
obligation to meet these expenses. The Court also finds that said loans were adequately
substantiated by evidence such as copies of cashed checks and promissory notes. This
Court finds that a total of $243,421.85 ($206,912.46 + 36,509.39) should be repaid to
JOANNE and DAVID ASH. Said repayment shall come from the escrowed proceeds from
the sale of 5400 Franklin. The balance of the escrowed proceeds, if any, shall be equally
distributed between the parties.”
¶ 10 On May 1, 2018, Mason filed a petition to modify his child support and maintenance
obligations. The petition alleged that since the dissolution judgment “there has been a substantial
and material change in circumstances relative to Mason’s income.” In the judgment, the trial court
found Mason’s average annual net income through March 2016 to be $186,635.92. Mason alleged
that, at the end of 2016, his gross earnings were $155,411.47, his gross earnings at the end of 2017
were $166,401.19, and his gross earnings for the first four months of 2018 totaled $47,971.78.
Furthermore, one of the parties’ minor children, Benjamin, had reached the age of emancipation.
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Mason requested a modification of his support and maintenance payments and of his share of the
children’s medical, extracurricular and educational expenses.
¶ 11 At the hearing on the petition, Mason testified that in 2018 his gross wages were $146,575
and he received approximately $5100 from the Chafee Family Trust. He testified that there have
been changes since his latest financial affidavit. His gross income decreased from $12,122 monthly
to $11,121, and his rent doubled to $1280 per month because he no longer lived with his girlfriend.
Also, his monthly dental costs increased from $135 to $400 due to root canals and 10 broken teeth.
¶ 12 Mason testified that he is on a payment plan of $600 per month regarding his debt to the
Internal Revenue Service (IRS). He currently has a 401(k) loan of $27,000, and his Visa bill
exceeds $5000. In 2017, he paid Allison 50% of his net monthly income, but in 2018, maintenance
and child support were garnished from his monthly pay. He testified that out of 13 pay periods in
2018, he received no income on 7 occasions. To pay his bills, Mason borrowed $20,000 from his
individual retirement account.
¶ 13 On cross-examination, Mason stated that he now works in the Waukesha, Wisconsin, office
of Raymond James on a 100% commission basis. He received $575,000 from his employer in the
form of a paid loan, which he reported as income of approximately $80,000 per year for eight
years. Raymond James paid him a bonus to cover taxes on the reported income. He did not give
Allison any of his 2017 tax refund because it “went directly to the IRS.” Mason anticipated that
his 2018 tax refund would also go to the IRS. In 2017, Mason contributed $9865.77 to his 401(k).
According to his December 31, 2018, pay stub, Mason contributed $4248.44 to his 401(k) that
year and $6300 to another retirement account. He admitted that his gross income in 2017 and 2018
was more than his income in 2016.
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¶ 14 The Raymond James bonus agreement of March 9, 2011, and the agreement dated January
2, 2009, were paid off in 2016. Mason denied that he has more available income as a result because
he has “no control” over his income, which depends on his clients working with him and making
monthly transactions. On redirect examination, Mason explained that his Raymond James bonus
of approximately $80,000 to $100,000 per year for eight years “went to pay taxes.” He stated that
the amount was included in his gross income even though he never received the money.
¶ 15 Allison testified as an adverse witness. She stated that she has a bachelor’s degree in
sociology and was previously employed with Prudential Securities as an administrative assistant.
She left her position to care for her children. She testified that she would seek employment in the
future when her children are “in a better place.” She has a 13-year-old and a 16-year-old at home,
her 19-year-old is still at home, and her 21-year-old lives in California. Her 19-year-old, who is
now emancipated, works part-time and attends school part-time.
¶ 16 Allison stated that her monthly expenses are $10,636.66. She uses the money she receives
from Mason, and money she borrows from her parents, to pay her expenses. When she does not
have money for her monthly rent of $2500, she borrows money from her parents. Allison signs
notes “from time to time” for the money she has borrowed, but she has yet to pay back any monies.
She “absolutely” plans on paying her parents after she gets a job and receives more money from
Mason.
¶ 17 Allison meets with her parents on a monthly basis to “give them the bills that are owed—
or due to my credit card.” They write a check, and Allison signs an IOU that they have kept for
the past five years. Her loans are detailed in a notebook/log. Allison uses a Nordstrom Visa card
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to pay her bills, and her parents never refuse to make the payments on the card. In 2017, her parents
purchased cars for her and Ben as gifts.
¶ 18 Allison’s financial affidavit showed loans from her parents amounting to approximately
$700,000 and an additional loan for attorney fees of approximately $800,000. The affidavit showed
that Allison was making monthly payments of $7656.65 on the Visa account. The affidavit also
indicated that, currently, Allison is making no payments on the loans from her parents.
¶ 19 The trial court determined that Mason proved a substantial change in circumstances where
one of the children has turned 18 years old and his income has decreased since the dissolution
judgment. The court also found that the decrease in Mason’s income was not the result of bad faith
or for the purpose of avoiding his obligations. After considering the factors listed in section
510(a-5) and 504(a) of the Marriage Act, the court found that although Mason’s income has
decreased, the other factors were the same as at the time of judgment. Therefore, Allison remained
a candidate for maintenance.
¶ 20 In calculating Mason’s income, the court looked at the money he received from the Chafee
Trust and his gross income from Raymond James. The court determined Mason’s average income
from 2016 to 2018 to be $167,472.26. Thirty percent of that amount was $50,241.83, and
maintenance to Allison would therefore be modified to $1932.38 every two weeks.
¶ 21 Regarding support for the children, Mason had asked the court to impute income to Allison
based on the payments her parents made for her. Citing In re Marriage of Tegeler, 365 Ill. App.
3d 448 (2006), the trial court found that generally loan proceeds are not included as income when
determining child support payments. However, if there is no expectation of repayment, the loan
could be considered income.
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¶ 22 The court determined
“there is evidence to suggest that the payments made by ALLISON’s parents are loans.
The monthly payments made to the Visa account are less than the total amount of support
this Court order[ed] MASON to pay pursuant to the judgment. Because MASON has not
paid the full amount, ALLISON gets assistance from her parents. ALLISON listed the total
amount owed to her parents for family expenses, which includes payments made to this
Visa account. Similarly, ALLISON submitted the log [she] and her parents use to keep
track of the payments made, including the monthly payment on the Visa account. Based on
ALLISON’s testimony, ALLISON and her [parents] keep track of every payment they have
made for ALLISON, they sign notes for these payments, and they expect ALLISON to pay
the loans back. Based on this evidence, ALLISON and her parents intend for ALLISON to
repay them for these payments. Therefore, these payments are loans and should not be
imputed in ALLISON’s income.”
¶ 23 The trial court calculated Mason’s average net income per month to be $6836. Allison’s
gross monthly income was $4186.82 from her maintenance, and her net monthly income was
$3314. Based on the statutory guidelines, Mason’s monthly child support obligation would be
$1346.18. The court, however, believed this result was unjust.
¶ 24 The court noted that section 505(3.4) of the Marriage Act allowed for deviations from the
statutory calculations under certain circumstances. It found that one of the children has special
medical, physical, or developmental needs and, as a result, Allison is unable to work full-time. The
court also found that “a strict application of the guidelines would not be in the best interest of
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either child, given their needs as evidenced by Allison’s expenses.” Therefore, the court applied
an upward deviation and determined Mason’s monthly child support obligation to be $3048.
¶ 25 The trial court then addressed Mason’s request to modify his share of extracurricular,
medical, and educational expenses. It found that, although one child is now emancipated and
Mason’s income has decreased, those factors are not relevant in determining his obligation for
these expenses. Furthermore, the needs of the children remain the same as at the time of the
dissolution judgment. As such, Mason did not satisfy his burden to show a substantial change in
circumstances as required to modify his obligations.
¶ 26 The trial court therefore granted Mason’s motion to modify his maintenance and support
payments but denied his request to modify his payments for his children’s extracurricular, medical,
and educational expenses.
¶ 27 Mason filed a motion to reconsider, arguing that the trial court misstated Mason’s gross
income. Mason also alleged that the court erred in making an upward deviation in child support
based on an unnamed child having special needs when no evidence was presented regarding the
special needs of the two minor children. Mason further contended that the loans from Allison’s
parents were actually gifts and that she received $24,244.60 per month from them. Her parents
also paid for her home and the costs associated with the home.
¶ 28 Allison responded that Mason’s motion merely restated his arguments and thus did not
meet the standard for filing a motion to reconsider. Also, the court did not misstate Mason’s
income, and the upward deviation in child support was properly based on evidence in the record.
She noted that the record contains orders appointing therapists for the children at the request of the
guardian ad litem (GAL). She denied that the money from her parents was a gift because the
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amounts were documented and signed for contemporaneously with the lending of funds.
Furthermore, Mason owes Allison $63,041.69 in outstanding child support and maintenance
payments and approximately $10,000 in child-related expenses, for the period of October 16, 2017,
to May 16, 2018. Allison contended that, if Mason timely paid the amounts ordered by the court
for maintenance, child support, and expenses, she would not have to borrow money from her
parents.
¶ 29 In denying Mason’s motion to reconsider, the trial court found that the Matschke case had
been before the court for a long time and the court was very familiar with the family. During the
proceedings, significant issues had been raised regarding the parties’ children. As a result, the court
appointed a GAL for each of the children, and at the GAL’s request, a therapist was appointed for
them.
¶ 30 Mason filed this appeal.
¶ 31 III. ANALYSIS
¶ 32 As an initial matter, Allison argues that Mason’s brief does not conform to Illinois Supreme
Court Rule 341(h) (eff. Oct. 1, 2020) because he failed to provide a statement on whether an issue
is raised on the pleadings. She also points to his failure to cite the record as support for some of
his claims and his mischaracterizations of the evidence. As a result, she contends his brief should
be stricken and the appeal dismissed. The supreme court rules are not merely advisory suggestions;
rather, they must be followed. In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57.
Consequently, where an appellant’s brief contains Rule 341 violations that impede our review of
the case at hand, we may strike that brief and dismiss the appeal. Kic v. Bianucci, 2011 IL App
(1st) 100622, ¶ 23. We are mindful that “[t]he striking of an appellate brief, in whole or in part, is
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a harsh sanction and is appropriate only when the alleged violations of procedural rules interfere
with or preclude review.” (Internal quotation marks omitted.) In re Detention of Powell, 217 Ill.
2d 123, 132 (2005). Even if Mason’s brief does not fully comply with the rules, the violations do
not affect our ability to address the issues in this appeal. We therefore choose to reach the merits.
North Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶ 14. However,
we will disregard any inappropriate or unsupported statements or arguments.
¶ 33 On appeal, Mason does not challenge the trial court’s decision to modify his maintenance
and support obligations. Rather, he contends that the trial court erred when it refused to include
the sums Allison received from her parents as income for child support and maintenance purposes.
The trial court found that Allison received a loan from her parents, and under the Marriage Act, a
loan generally is not “income” for support purposes. Whether loans are considered income under
the Marriage Act is a question of law subject to de novo review. In re Marriage of Rogers, 213 Ill.
2d 129, 135-36 (2004).
¶ 34 In a dissolution proceeding, the trial court may order either or both parents to pay child
support. 750 ILCS 5/505(a) (West 2018). To determine the amount of support, the court must
calculate “each parent’s monthly net income.” Id. § 505(a)(1.5)(A). The statute defines net income
as “gross income” minus enumerated standardized tax amounts and adjustments pursuant to
subparagraph (F). Id. § 505(a)(3)(B). Gross income, in turn, is defined as “the total of all income
from all sources,” excluding certain benefits not relevant here. See id. § 505(a)(3)(A). This is also
the definition of “gross income” for determining maintenance under section 504(b-3) of the
Marriage Act. See id. § 504(b-3). Therefore, in calculating child support and maintenance the trial
court must first ascertain “the total income from all sources” the parent received. (Internal
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quotation marks omitted.) Rogers, 213 Ill. 2d at 136.
¶ 35 The Marriage Act does not define “income,” so in Rogers the supreme court gave the term
its plain and ordinary meaning. Id. The word suggests “ ‘something that comes in as an increment
or addition,’ ” “ ‘a gain or recurrent benefit that is usu[ally] measured in money,’ ” or “ ‘the value
of goods and services received by an individual in a given period of time.’ ” Id. at 136-37 (quoting
Webster’s Third New International Dictionary 1143 (1986)). The court recognized that the phrase
“total of all income from all sources” was expansive and included “a variety of payments” that
would not qualify as taxable income under the Internal Revenue Code. (Internal quotation marks
omitted.) Id. In Rogers, the monetary gifts given to the father “represented a valuable benefit ***
that enhanced his wealth and facilitated his ability to support” his child. Id. at 137. Accordingly,
the supreme court affirmed the trial court’s decision to include the annual gifts as income. See id.¶ 36 The court also considered annual “loans” given to the father by his parents. It found,
however, that “the sums at issue here are loans in name only.” Id. at 140. The father never had to
repay these “loans” and by his own testimony, he stated that the money represented a steady source
of dependable income. Id. The supreme court concluded that these sums were “no less ‘income’
than the gifts [his parents] gave him or the salary he received from his teaching job.” Id. Since the
money was a loan “in name only,” the supreme court had “no occasion *** to address whether and
under what circumstances loan proceeds are properly regarded as an element of income for child
support purposes.” Id. at 140.
¶ 37 In Tegeler, the Second District did consider whether loans should be considered income
under the Marriage Act. The respondent was a farmer whose sole source of income came from
farming. Tegeler, 365 Ill. App. 3d at 451. To run his farm, he received annual loans from the bank
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through a line of credit: in 2002, his line of credit was $460,000; in 2003 it was $650,000; and in
2004, it was $660,000. Id. at 457. The petitioner argued that this line of credit is a source of income
for child support purposes under the Marriage Act. The court found that “in general, loans should
not be considered income” because “they usually do not directly increase an individual’s wealth.”
(Emphasis in original.) Id. at 458. There was no evidence that respondent used the proceeds for
anything other than farming expenses. Id. As such, the court did not consider the loans as income
for child support purposes. Id. at 457. The court acknowledged, however, that there may be
situations where a loan should be considered income under section 505. Id. at 459. 1
¶ 38 In In re Marriage of Baumgartner, 384 Ill. App. 3d 39 (2008), the court considered whether
a residential mortgage loan made by a bona fide lender was income under the Marriage Act.
Finding no case law involving mortgages, the parties looked at how courts in other jurisdictions
perceived student loans. The court noted that the cases relied on statutory definitions of income
particular to each state or to federal law, so their usefulness was limited. Id. at 51. However, it
found that “a determining factor in many of the above cases is whether repayment of the money
received was required. Where repayment was required, the loan was not considered income.” Id.
at 52. The court held that the residential mortgage loan at issue was not income under section 505.
Like Tegeler, the court emphasized it “[did] not hold that loan proceeds may never constitute
income.” Id.
¶ 39 In 2016, the legislature extensively amended section 505’s support and income guidelines,
1
The court also recognized that the appellate court in Rogers held that loan proceeds should be
considered income under section 505 but disagreed with it. Tegeler, 365 Ill. App. 3d at 457. We note that
the appellate court in Rogers relied on language in a prior version of the statute that no longer exists in the
current version. As such, we need not consider the appellate decision persuasive authority here.
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which now provide, in part, a specific list of “benefits” excluded from gross income and a
definition of “business income” for purposes of calculating child support. See Pub. Act 99-764,
§ 5 (eff. July 1, 2017) (amending 750 ILCS 5/505). Although the amendments came after Rogers,
Tegeler, and Baumgartner, the current statute does not mention loans or whether loans in general
should be excluded from income. We know, however, that the Marriage Act’s definition of gross
income as “the total of all income from all sources” is expansive. See Rogers, 213 Ill. 2d at 136-
37. Since we must construe provisions of the Marriage Act liberally so as to promote its underlying
purposes (see 750 ILCS 5/102 (West 2018)) and the statute omits loans from its exceptions to
“gross income,” we believe the legislature intended courts to consider loans as potential income
towards the support of a child. See Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-
52 (1997) (explaining the rule of statutory construction that “omissions should be understood as
exclusions”).
¶ 40 While there may be good reasons to exclude certain loans from the gross income
calculation, the amended section 505(a) provides the trial court with the means to make that
determination on a case-by-case basis. Subsection (3.4) states that “[t]he court may deviate from
the child support guidelines if the application would be inequitable, unjust, or inappropriate,”
provided the court makes written findings specifying the reasons for the deviation. 750 ILCS
5/505(a)(3.4) (West 2018). The reasons may include:
“(A) extraordinary medical expenditures necessary to preserve the life or health of
a party or a child of either or both of the parties;
(B) additional expenses incurred for a child subject to the child support order who
has special medical, physical, or developmental needs; and
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(C) any other factor the court determines should be applied upon a finding that the
application of the child support guidelines would be inappropriate, after considering the
best interest of the child.” Id.By adding subsection (3.4), the legislature understood that an appropriate support award
necessarily depends on the facts of each case. Subsection (3.4) gives the trial court authority to
deviate from the guidelines in order to tailor support to the case at hand. The broad language in
subsection (3.4)(C) in particular reflects an intent to give the trial court, the body most familiar
with the parties and their needs, flexibility in determining support based on the facts of the case.
¶ 41 In sum, the trial court should consider loans as potential income for purposes of calculating
child support. Whether the loan in question is included as income depends on the facts of the case.
If the trial court determines that the loan is not income for support purposes, it must make written
findings setting forth its reasoning. See id. This interpretation also aligns with Tegeler and
Baumgartner, which acknowledged that whether loans are income under section 505(a) is an
inquiry specific to each case.
¶ 42 While Tegeler and Baumgartner involved loans from institutions, here the loans consist of
money from Allison’s parents. Mason argues that the Marriage Act presumes property transfers
from parent to child are gifts, not loans, and that this presumption may be overcome only by clear
and convincing evidence. See In re Marriage of Wanstreet, 364 Ill. App. 3d 729, 735 (2006); In re
Marriage of Hagshenas, 234 Ill. App. 3d 178, 186 (1992). We acknowledge the presumption, but
that does not mean Tegeler and Baumgartner have no relevance here. The reasoning in those cases
is helpful in ascertaining whether the loans at issue should be included as income under the
Marriage Act. Specifically, important factors to this determination are (1) whether the money
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directly increases the recipient’s wealth (Tegeler, 365 Ill. App. 3d at 458) and (2) whether
repayment of the loan is required (Baumgartner, 384 Ill. App. 3d at 52).
¶ 43 For example, in In re Marriage of Anderson, 405 Ill. App. 3d 1129, 1137 (2010), the court
concluded that substantial annual “loans” received by the father from his parents, without
expectation of repayment, should have been included as income. The court cited Rogers’s
definition of income in finding that the money was “a continuing source of income” and provided
“a valuable benefit” that facilitated the father’s ability to support his children. Id. Similarly, the
court in Vance v. Joyner, 2019 IL App (4th) 190136, ¶ 64, determined that the funds the mother
received from her parents, with no intention that she repay the money, were “loans in name only”
and qualified as income for child support purposes.
¶ 44 Unlike the parties in Rogers, Anderson, and Vance, Allison testified that she is expected to
repay the money her parents gave her. The trial court determined that Allison keeps track of the
total amount owed to her parents for family expenses and that they expect her to pay them back.
Mason, however, points out that Allison has yet to make a payment on the substantial loans from
her parents. He argues that her testimony regarding her intent to repay the loans cannot be believed.
¶ 45 Allison testified that she would “absolutely” repay her parents when she starts working.
She intends to look for a job once her children are “in a better place.” The record indicates that the
divorce has impacted the children and they are seeing therapists. The trial court stated it was
familiar with the parties and found Allison to be a credible witness. It clearly believed that Allison
was required to pay back the sums her parents loaned her and that she planned to do so. Evidence
in the record also supports the trial court’s determination. Allison submitted the log/notebook she
uses to keep track of her debt, including the monthly payment on the Visa account. She testified
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that she signed notes regarding the money owed to her parents. We are mindful that the trial court
observed the conduct and demeanor of witnesses during the proceedings. Therefore, it was in a
superior position to assess Allison’s credibility, and we afford its judgment great deference. In re
Marriage of Bates, 212 Ill. 2d 489, 516 (2004). A reviewing court must not substitute its judgment
for that of the trial court regarding witness credibility, the weight assigned to the evidence, or the
inferences to be drawn. In re A.W., 231 Ill. 2d 92, 102 (2008).
¶ 46 Furthermore, contrary to the case in Rogers, Anderson, and Vance, the loans here did not
provide Allison with a steady source of additional money that enhanced her wealth. The trial court
determined that Allison used the money from her parents to pay for expenses that would have been
covered by Mason’s support and maintenance payments. The court found that the monthly
payment of $7656.65 made to Allison’s Visa account, which she used to pay expenses, was less
than the amount Mason had to pay pursuant to the dissolution judgment which, before
modification, was a total of $11,892 per month. At the time of the hearing, Mason owed $63,041.69
in outstanding child support and maintenance payments and approximately $10,000 in child-
related expenses, for the period of October 16, 2017, to May 16, 2018. Other arrearages have yet
to be determined. Allison testified that she would not have borrowed from her parents if Mason
had kept current with his payments. Mason acknowledges that he owes Allison money, and there
is no evidence that she used the loans for anything other than expenses that would have been
primarily covered by payments under the dissolution judgment.
¶ 47 Although Mason argues that Allison borrowed substantially more than he was obligated to
pay, he bases his arguments on dollar amounts with scant citation of the record. As the party
disputing the trial court’s support award, Mason bears the burden of showing the court’s abuse of
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discretion. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005). Accordingly, we find the trial
court did not err in concluding that Allison received loans from her parents or in determining that
such loans are not income under section 504 or 505 of the Marriage Act. See In re Estate of Lukas,
155 Ill. App. 3d 512, 521-22 (1987) (finding the clear and convincing standard satisfied where the
trial court assessed the credibility of witnesses with competing testimonies and there was evidence
in the record to support its determination).
¶ 48 Mason next contends that the trial court erred in failing to modify his obligations toward
the children’s medical, extracurricular, and educational expenses. He argues that he has
demonstrated a substantial change in circumstances and “should no longer be paying the lion’s
share of these expenses.” Our standard of review on this issue is abuse of discretion. In re Marriage
of Logston, 103 Ill. 2d 266, 287 (1984).
¶ 49 Mason argues that an economic disparity exists regarding the payment of these expenses
because his gross income is now $13,956.03 per month, from which he must pay $4186 as
maintenance to Allison and $3048 as child support. He contends that leaves him with a cash flow
of approximately $6722 per month compared with the $7234 per month Allison receives from him
as maintenance and support. He argues that paying between 70 to 100% of the expenses is now
disproportionate to the parties’ cash flow and his obligation should be modified.
¶ 50 Mason cites no legal authority for his argument that the trial court must consider “cash
flow” when determining a parent’s obligation to contribute to the children’s medical,
extracurricular, and educational expenses, in violation of Illinois Supreme Court Rule 341(h)(7)
(eff. Oct. 1, 2020) (“[a]rgument *** shall contain the contentions of the appellant and the reasons
therefor, with citation of the authorities and the pages of the record relied on”). Arguments that
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fail to comply with Rule 341(h)(7) do not merit consideration on appeal. In re Marriage of Hendry,
409 Ill. App. 3d 1012, 1019 (2011).
¶ 51 Nonetheless, Allison’s monthly income has also decreased because the trial court granted
Mason’s petition to modify his maintenance and support payments. The court found that, despite
the parties’ decline in monthly income, the children’s need and expenses remained the same.
Therefore, the trial court did not modify Mason’s requirement to pay 70% of the uncovered
medical expenses, 70% of the children’s educational expenses, and 100% of their extracurricular
expenses. An abuse of discretion occurs when no reasonable person would agree with the trial
court’s determination. Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005). We find no abuse of
discretion here.
¶ 52 Mason’s final contention is that the trial court erred in making an upward deviation when
it calculated his monthly child support payment. Based on the statutory guidelines, Mason’s
monthly child support obligation would be $1346.18. The court, however, believed this result was
unjust. It found that one of the children has special needs and, as a result, Allison is unable to work
full-time. The court determined that “a strict application of the guidelines would not be in the best
interest of either child, given their needs as evidenced by Allison’s expenses.” Therefore, the court
calculated Mason’s child support obligation as $3048 per month.
¶ 53 The trial court has discretion to determine net income under the Marriage Act, and a
reviewing court will not overturn that determination absent an abuse of discretion. In re Marriage
of Juiris, 2018 IL App (1st) 170545, ¶¶ 18-19. The trial court’s discretion includes its ability to
“deviate from the child support guidelines if the application would be inequitable, unjust, or
inappropriate.” 750 ILCS 5/505(a)(3.4) (West 2018). However, if the trial court deviates from the
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statutory guidelines, it must provide “written findings *** specifying the reasons for the deviation
and the presumed amount ***without a deviation.” Id.¶ 54 Mason argues that there was no finding that any of the children have special needs.
However, section 505(a)(3.4) states only that the court must specify the reason for the deviation,
and the reason may include “additional expenses incurred for a child *** who has special medical,
physical, or developmental needs.” Id. § 505(a)(3.4)(B). In its written order, the trial court applied
an upward deviation because one of the sons has special needs and Allison stays home “to ensure
that her son’s needs are met.” The order did not name the child or specify the need, but nothing in
the language of section 505(a)(3.4) suggests that the court’s reasoning must provide such detail.
See also Melamed v. Melamed, 2016 IL App (1st) 141453, ¶ 33. We find the trial court’s deviation
from the statutory guidelines complied with section 505(a)(3.4).
¶ 55 The case Mason cites as support, In re Marriage of Jelinek, 244 Ill. App. 3d 496 (1993),
does not compel a different result. In that case, the trial court stated that it deviated from the
statutory guidelines based on the parties’ ability to meet the needs of the children. Id. at 508. The
appellate court found, however, that “little evidence was adduced as to the needs of the children.”
Id. at 509. The only expenditures in the record pertaining to the children were expenses for
maintaining the mother’s homes in Evanston and Colorado. Id. Such expenditures, however, are
generally excluded from child support calculations because they tend to result in an “ ‘exaggerated
figure of support.’ ” Id. (quoting In re Marriage of Stockton 169 Ill. App. 3d 318, 327 (1988)).
Based on the “the lack of evidence presented at trial as to the issue of child support,” the appellate
court reversed and remanded for recalculation of the child support award. Id.¶ 56 Here, the trial court was familiar with the family and the children’s expenses, having
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presided over the proceedings from the beginning. The court deviated from the guidelines because
one of the children has special needs and Allison must stay home to tend to those needs. The record
contains evidence that the GAL requested therapists for each of the children and that they currently
attend regular therapy sessions. The court indicated it had evidence before it regarding expenses
associated with those needs. Unlike Jelinek, there was evidence in this case pertaining to expenses
incurred for special needs. We find that the trial court did not abuse its discretion in ordering
Mason to pay child support in the amount of $3048 per month.
¶ 57 IV. CONCLUSION
¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 59 Affirmed.
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No. 1-20-0901
Cite as: In re Marriage of Ash, 2021 IL App (1st) 200901Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2013-D-
005975; the Hon. Regina Scannicchio, Judge, presiding.
Attorneys Annette M. Fernholz, of Law Offices of Annette M. Fernholz,
for P.C., of Chicago, for appellant.
Appellant:
Attorneys Aldo E. Botti and Jean Lasics-Wessels, of Botti Law Firm, P.C.,
for of Oak Brook, for appellee.
Appellee:
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