In re Marriage of Sanchez ( 2020 )

NOTICE
2020 IL App (5th) 190216-U NOTICE
Decision filed 05/29/20. The This order was filed under
text of this decision may be NO. 5-19-0216 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Peti ion for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
LESTER L. SANCHEZ, ) Madison County.
)
Petitioner-Appellee, )
)
and ) No. 13-D-566
)
ANGELA L. SANCHEZ, ) Honorable
) Maureen D. Schuette,
Respondent-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Overstreet concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in calculating petitioner’s child support
obligation where respondent failed to demonstrate that the shared physical
care adjustment was based solely on petitioner’s entitled parenting time.
¶2 Petitioner, Lester L. Sanchez, and respondent, Angela L. Sanchez, are the parents
of a minor child. The parties were divorced on May 23, 2018. On February 6, 2019, the
circuit court recalculated petitioner’s child support obligation utilizing the shared physical
care adjustment pursuant to section 505(a)(3.8) of Illinois Marriage and Dissolution of
Marriage Act. 750 ILCS 5/505(a)(3.8) (West 2018). Upon recalculation, petitioner’s child
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support obligation was reduced, and the circuit court retroactively applied the reduction to
the date of the parties’ dissolution of marriage. On February 11, 2019, respondent filed a
motion to vacate and set aside the circuit court’s February 6, 2019, order (motion to vacate).
The circuit court denied respondent’s motion to vacate on May 3, 2019. Respondent now
appeals arguing that the circuit court erred in applying the shared physical care adjustment
based upon petitioner’s entitled number of overnight parenting time instead of the actual
number of overnights petitioner exercised. Because respondent fails to demonstrate that
the shared physical care adjustment was based solely on petitioner’s entitled parenting
time, we affirm the judgment of the circuit court.
¶3 I. BACKGROUND
¶4 The facts relevant to this appeal are as follows. The parties were married on May
27, 2000, and one child 1 was born during the marriage. On June 27, 2013, petitioner filed
for dissolution of marriage. The circuit court entered a temporary order on October 8, 2014,
directing petitioner to pay temporary child support in the amount of $790 per month.
Petitioner was also directed to pay two days of the minor child’s day care expense per
week, and to place the minor child on his health insurance plan.
¶5 On January 4, 2016, the circuit court entered a judgment of allocation of parental
responsibilities incorporating a parenting plan. 2 The judgment of allocation of parental
responsibilities provided, in relevant part, that:
1
D.N.S., date of birth February 5, 2006.
2
The record did not contain a “Parenting Plan,” but the judgement of allocation of parental
responsibilities reflected the “Conclusion and Best Interest Recommendation” section of the guardian
ad litem report filed on October 29, 2015.
2
“a. [Petitioner] shall have parenting time every other weekend, beginning
from Friday at 6:00 p.m. until Monday when [petitioner] takes the child to school.
If there is no school on Monday, then [petitioner] shall return the child to
[respondent] by 9:00 a.m. ***
b. The [petitioner] shall have every Tuesday, when he shall retrieve the child
from school, until Wednesday morning, when [petitioner] shall take the child to
school.”
The judgment of allocation of parental responsibilities further apportioned holidays,
birthdays, and the minor child’s educational breaks between the parties, conferring in
excess of 146 3 overnights per year of parenting time to petitioner.
¶6 On May 23, 2018, the circuit court entered a judgment of dissolution of marriage
and property disposition which incorporated the judgment of allocation of parental
responsibilities. The judgment of dissolution of marriage and property disposition also
specified, inter alia, that:
“7. Husband and Wife agree that the issue of the amount of child support
payable herein shall be reassessed and evaluated under current statutory income
sharing guidelines without the necessity of proof of a substantial or material change
in circumstances since the entry of the prior child support order of the Court, which
3
Respondent claims that it is an undisputed fact that the judgment of allocation of parental
responsibilities awarded petitioner 157 overnights per year and petitioner claims that it is an undisputed
fact that petitioner was awarded 168 overnights per year. There is no indication in the record on the number
of overnights that the circuit court determined petitioner was entitled to exercise. Determining the exact
number of overnights is not necessary for our analysis since the parties agree that petitioner was awarded
in excess of 146 overnights per year.
3
prior order was made based upon net income percentage guidelines provided by
prior statute, since repealed.”
¶7 Petitioner filed a motion to enforce judgment on August 13, 2018. Petitioner’s
motion to enforce judgment requested that the circuit court recalculate petitioner’s child
support obligation under current statutory income sharing guidelines as mandated by the
judgment of dissolution of marriage and property disposition. On February 6, 2019, the
circuit court heard petitioner’s motion to enforce judgment, and on the same day, issued
the following written order:
“Cause called on Petitioner’s Motion to Enforce Judgment. Parties appear in
person and/or by counsel. The court being advised of the agreed calculations and
upon hearing arguments of counsel finds as follows:
1. The Petitioner’s child support as calculated by the guidelines is $136.91
per month which includes his contribution to the costs of health insurance.
2. This amount shall be retroactive to the date of entry of the judgment of
dissolution of marriage of May 23, 2018.
3. The retroactive overpayment of $653.09 per month is calculated as a total
of $5224.72 as of January 31, 2019. Judgment is entered thereon in favor of
petitioner against respondent. Execution to ensue.
***
So Ordered.”
No record of proceedings was made of the February 6, 2019, circuit court’s hearing on
petitioner’s motion to enforce judgment.
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¶8 On February 11, 2019, respondent filed a motion to vacate the circuit court’s order
of February 6, 2019. In her motion to vacate, respondent argued that the circuit court erred
in applying the shared physical care adjustment based upon petitioner’s entitled number of
overnight parenting time conferred in the judgment of allocation of parental responsibilities
instead of the actual number of overnights petitioner exercised. Respondent’s motion to
vacate alleged that petitioner only exercised:
“a. 52 Tuesday/Wednesday overnights per year (1 overnight x 52 weeks = 52);
b. 78 weekend overnights per year (3 overnights x 26 weeks = 78);
c. The aggregate number of these annual overnights actually exercised by Petitioner
on alternate weekends and Tuesday/Wednesday therefore has been 130[.]”
Respondent further alleged that petitioner did not exercise any of his allotted parenting
time on holidays or school breaks, except an occasional single overnight at Christmas. On
May 3, 2019, the circuit court conducted an evidentiary hearing on respondent’s motion to
vacate.
¶9 At the evidentiary hearing on respondent’s motion to vacate, respondent testified
that petitioner exercised his parenting time every other weekend and one night per week,
but that petitioner had historically not exercised any of his entitled parenting time for
holidays or school breaks. Respondent testified that, on average, petitioner had the minor
child for overnight parenting time no more than 130 days per year since the January 4,
2016, judgment of allocation of parenting responsibilities was entered.
¶ 10 Respondent admitted that she would not allow petitioner any make-up parenting
time for the periods he missed due to his National Guard obligations “because it’s not in
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the child paperwork to do that.” Respondent stressed, however, that petitioner had never
requested any make-up parenting time because of his National Guard obligations.
¶ 11 Petitioner testified that he had not exercised his parenting time during the minor
child’s school breaks but stated that he had exercised his parenting time on all other
holidays. Petitioner explained that the reason he had failed to exercise his parenting time
over the longer periods was due to living in his mother’s basement. However, petitioner
stated that in November 2018, he was able to purchase a home in which the minor child
now has his own bedroom. Petitioner further testified that he had not requested any make-
up parenting time for his National Guard obligations based on respondent denying such
requests in the past.
¶ 12 At the conclusion of the evidentiary hearing on respondent’s motion to vacate, the
circuit court stated in open court:
“THE COURT: The Court, having heard the evidence and being fully
advised on the premises and having assessed the credibility of the witnesses, finds
and orders that the motion to vacate and set aside an order entered February 6, 2019,
is denied based on the same reasons that the Court denied the motion[4] on February
6, 2019.
The Court has taken into consideration the Court-ordered parenting time that
was awarded to [petitioner], but the Court has heard the testimony of the witnesses
4
On February 6, 2019, the circuit court held a hearing on petitioner’s motion to enforce judgment
and then entered an order reducing petitioner’s child support obligation. As such, it did not deny the motion
to enforce judgment. Since there is no record of proceedings for the February 6, 2019, hearing, there is no
indication whether “denied the motion on February 6, 2019,” refers to the circuit court’s reduction of
petitioner’s child support or whether the circuit court heard, and denied, a similar motion at the hearing.
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regarding what [petitioner] has exercised in terms of his parenting time. And
although a little bit disjointed and not exactly specific, the Court has considered that
factor. The motion to vacate is denied.”
The circuit court issued a written order on the same day denying respondent’s motion to
vacate.
¶ 13 Respondent appeals arguing that the circuit court erred in applying the shared
physical care adjustment based upon petitioner’s entitled number of overnight parenting
time conferred in the judgment of allocation of parental responsibilities instead of the actual
number of overnights petitioner exercised.
¶ 14 II. ANALYSIS
¶ 15 Respondent argues that this is an appeal of statutory interpretation and asks this
court to find that the circuit court failed to follow the elementary rules of statutory
construction when it applied the shared physical care adjustment to petitioner’s child
support obligation. Respondent contends that the circuit court incorrectly based the shared
physical care adjustment on petitioner’s entitled number of overnight parenting time
instead of the actual number of overnight parenting time petitioner exercised. Petitioner,
however, counters that respondent’s appeal is frivolous and unsupported by the record.
¶ 16 Initially, we must determine the appropriate standard of review. Petitioner correctly
notes that respondent’s appellant brief is silent concerning the standard of review in
violation of Illinois Supreme Court Rule 341(h)(3). Ill. S. Ct. R. 341(h)(3) (eff. May 25,
2018). Rule 341(h)(3) requires an appellant to include “a concise statement of the
applicable standard of review for each issue, with citation to authority, either in the
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discussion of the issue in the argument or under a separate heading placed before the
discussion in the argument.” Id. Respondent failed to comply with Rule 341(h)(3) in her
appellant brief but did provide a standard of review discussion in her reply brief. Illinois
Supreme Court Rule 375(a) states that, “[i]f after reasonable notice and an opportunity to
respond, a party or an attorney for a party or parties is determined to have wilfully failed
to comply with the appeal rules, appropriate sanctions may be imposed[.]” Ill. S. Ct. R.
375(a) (eff. Feb. 1, 1994). In her reply brief, respondent corrected the omission of the
applicable standard of review after being placed on notice by petitioner’s appellee brief.
There is no indication that respondent willfully failed to comply with the appeal rules, and
having cured her omission, this court will consider respondent’s standard of review
discussion.
¶ 17 Respondent maintains that this appeal involves an issue of statutory interpretation
and, as such, presents a question of law which would mandate a de novo review. Taylor v.
Pekin Insurance Co., 231 Ill. 2d 390, 395 (2008) (an issue of statutory interpretation is a
question of law reviewed de novo). Petitioner argues that the record in this matter does not
indicate the manner in which the circuit court applied the shared physical care adjustment
to the facts of this case and, as such, the circuit court’s order should be reviewed for an
abuse of discretion. In re Marriage of Tegeler, 365 Ill. App. 3d 448, 453 (2006)
(modification of child support payments will not be disturbed absent an abuse of
discretion). We agree with petitioner and, for the reasons set forth below, have determined
that this appeal does not present an issue of statutory interpretation. Therefore, we will
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proceed with the standard of review applicable to a circuit court’s modification of child
support.
¶ 18 A circuit court's determination in awarding child support is presumed to be correct.
In re Marriage of Lugge, 2020 IL App (5th) 190046, ¶ 15. Modification of child support
must be decided by the circuit court based on the facts and circumstances of each case and
will not be disturbed on appeal absent an abuse of discretion. Id. An abuse of discretion
will only occur where no reasonable person could agree with the position taken by the trial
court. In re Marriage of Garrett, 336 Ill. App. 3d 1018, 1020 (2003).
¶ 19 Section 505(a)(3.8) of Illinois Marriage and Dissolution of Marriage Act (750 ILCS
5/505(a)(3.8) (West 2018)) provides that if each parent exercises 146 or more overnights
per year with a minor child:
“[T]he basic child support obligation is multiplied by 1.5 to calculate the shared care
child support obligation. The court shall determine each parent’s share of the shared
care child support obligation based on the parent’s percentage share of combined
net income. The child support obligation is then computed for each parent by
multiplying that parent’s portion of the shared care support obligation by the
percentage of time the child spends with the other parent. The respective child
support obligations are then offset, with the parent owing more child support paying
the difference between the child support amounts.”
¶ 20 Respondent contends that the circuit court incorrectly applied the shared physical
care adjustment pursuant to section 505(a)(3.8), when petitioner exercised fewer than 146
overnights per year with their minor child. Respondent, however, has not referenced any
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portion of the record that demonstrates that the circuit court determined that petitioner
exercised less than 146 overnights per year or that the circuit court calculated petitioner’s
child support obligation based solely on the number of overnights petitioner was entitled
to exercise. Respondent claims that, at the February 6, 2019, hearing on petitioner’s motion
to enforce judgment:
“The court ruled that since the number of overnights [petitioner] was entitled to
exercise (168) exceeded 146, support should be adjusted as provided in 750 ILCS
5/505(a)(3.8).” (Emphasis in original.)
Respondent, however, fails to provide a citation to the record in support of the above ruling.
This court has done a complete review of the common law record and record of proceeding
in this matter, including the circuit court’s order of February 6, 2019, and cannot locate the
above language. We also cannot locate anything within the record indicating that the circuit
court applied the shared physical care adjustment to petitioner’s child support obligation
based solely on petitioner’s entitled overnight parenting time conferred in the judgment of
allocation of parental responsibilities.
¶ 21 Our review of the record indicates that the circuit court considered the number of
overnights to which petitioner was entitled, but also considered the parties’ testimony
concerning the number of overnights petitioner exercised. At the circuit court’s hearing on
respondent’s motion to vacate, the circuit court specifically stated that, “the Court has heard
the testimony of the witnesses regarding what [petitioner] has exercised in terms of his
parenting time. And although a little bit disjointed and not exactly specific, the Court has
considered that factor.” The circuit court did not state the specific number of overnights it
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had found petitioner had exercised, but it clearly stated that it considered the number of
overnight parenting time that petitioner exercised.
¶ 22 Respondent contends that, “[i]n the case at bar, the facts are undisputed: [Petitioner]
is entitled to more than 146 overnights with [minor child], but he exercises fewer than that
number.” (Emphases in original.) But again, respondent fails to cite to any portion of record
in support of that contention. Our review of the record indicates that the number of
overnights petitioner exercised was a disputed fact. Respondent testified that petitioner
only exercised 130 overnights per year, but petitioner testified that he had exercised his
weekends, one night per week, and all of his allotted holiday parenting time, although he
failed to exercise his parenting time over the minor child’s spring, winter, and summer
breaks. Petitioner did not testify to a specific number of overnights that he had exercised
per year since the January 4, 2016, judgment of allocation of parenting responsibilities was
entered. However, section 505(a)(3.8) does not require the circuit court to determine the
specific number of overnights each parent exercises, only that each parent exercises 146 or
more overnights per year with a minor child. 750 ILCS 5/505(a)(3.8) (West 2018). When
presented with conflicting testimony, the circuit court is in the superior position to evaluate
the credibility of the witnesses. In re Custody of Switalla, 87 Ill. App. 3d 168, 175 (1980).
As such, it was within the circuit court’s discretion to find that petitioner’s failure to
exercise certain portions of his entitled parenting time did not result in the loss of the shared
physical care adjustment provided in section 505(a)(3.8). 750 ILCS 5/505(a)(3.8) (West
2018).
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¶ 23 The circuit court conducted a hearing on the facts and circumstances in this matter
and clearly indicated that it considered the testimony regarding the number of overnights
petitioner exercised. Respondent does not cite, and this court could not locate, any portion
of the record that demonstrates that the circuit court based its calculations solely on the
entitled overnight parenting time conferred to petitioner in the judgment of allocation of
parental responsibilities.
¶ 24 We presume the circuit court’s determination in determining petitioner’s child
support is correct and respondent has not provided any supported argument to rebut that
presumption. In re Marriage of Lugge, 2020 IL App (5th) 190046, ¶ 15. The record before
this court clearly indicates that the circuit court considered the facts and circumstances
related to the number of overnights petitioner was entitled to exercise and the number of
overnights petitioner had actually exercised. Therefore, the circuit court did not abuse its
discretion in determining that petitioner was entitled to the shared physical care adjustment
provided in section 505(a)(3.8), because respondent’s contention that the circuit court
based the shared physical care adjustment solely upon the number of overnights petitioner
was entitled to exercise is unsupported by the record before this court.
¶ 25 Petitioner asserts that respondent’s appeal is frivolous and that sanctions are
warranted under Illinois Supreme Court Rule 375(b). Ill. S. Ct. R. 375(b) (eff. Feb. 1,
1994). Rule 375(b) permits sanctions if an appeal is frivolous, not taken in good faith, or
is taken for an improper purpose. Id. An appeal is frivolous where a reasonable, prudent
attorney acting in good faith would not have brought it. Edwards v. City of Henry, 385 Ill.
12App. 3d 1026, 1039 (2008). While we have found that respondent’s appeal is not supported
by the record, we do not find that the appeal is frivolous or taken for an improper purpose.
¶ 26 Petitioner argues that respondent’s appeal is frivolous because (1) respondent had
an alternative legal remedy 5 available which she could have taken instead raising a
statutory interpretation challenge of section 505(a)(3.8), (2) respondent failed to comply
with appeal rules, and (3) respondent’s appeal was unsupported by the record.
¶ 27 First, simply because respondent had an alternative remedy and elected to appeal
does not render the appeal frivolous. Illinois Supreme Court Rule 303(a)(1) allows for an
appeal of a final judgment and contains no requirement that a party exhaust all available
remedies prior to appealing. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).
¶ 28 Second, with regard to respondent’s failure to follow appeal rules, we have
discussed respondent’s failure to comply with Rule 341(h)(3) above, and determined that
respondent’s omission of the standard of review in her appellate brief was not willful and
was cured in her reply brief. Petitioner also contends that respondent declined to follow the
appeal rules by failing to cite sufficient legal authority in support of her arguments and by
citing a decision filed under Illinois Supreme Court Rule 23. Ill. S. Ct. R. 23(b) (eff. Apr.
1, 2018). Petitioner requests that we find that respondent has waived all arguments within
her appellant brief, because they are not properly supported by citations to relevant
authority as required by Illinois Supreme Court Rule 341(h). Ill. S. Ct. R. 341(h) (eff. May
5
Petitioner argues that respondent could have sought a modification of the judgment of allocation
of parental responsibilities to reduce petitioner’s entitled number of overnight parenting time.
13
25, 2018). Petitioner further requests that this court strike any portion of respondent’s
argument supported by the Rule 23 decision.
¶ 29 This court may, in its discretion, strike a brief, a portion thereof, and/or dismiss an
appeal based on the failure to comply with the applicable rules of appellate procedure. Id.;
Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77. Respondent’s appellant brief did
contain minimum citations to legal authority in support of her statutory interpretation
argument; however, we have addressed respondent’s appeal as unsupported by the record.
As such, we do not find that respondent has waived all arguments within her appellant
brief.
¶ 30 With respect to respondent citing In re Marriage of Capelle, 2018 IL App (5th)
180011-U, we agree with petitioner that an order entered under Supreme Court Rule 23(b)
may not be cited by any party except in support of limited contentions not applicable in
this case. Ill. S. Ct. R. 23(b) (eff. Apr. 1, 2018). In her brief, respondent acknowledged that
no cases were found on the issue raised in this appeal and that she cited an unpublished
decision since it contained a discussion of the issue. Nothing in Rule 23 expressly prohibits
the appellate court from adopting the reasoning of an unpublished order. Byrne v. Hayes
Beer Distributing Co., 2018 IL App (1st) 172612, ¶ 22. In this matter, the unpublished
decision was cited for this court’s consideration of the reasoning contained in the
unpublished order in support of respondent’s statutory interpretation argument. However,
we have found respondent’s statutory interpretation argument inapplicable, and therefore,
the unpublished decision had no bearing on our analysis. We caution respondent on any
14
future reliance on Rule 23 decisions, but we do not elect to strike those portions of
respondent’s brief supported by the Rule 23 decision.
¶ 31 Finally, petitioner argues that respondent’s appeal is frivolous because it is not
supported by the record. The appellant brought this appeal and presented an argument that
she believed was supported by the record. Specifically, as we explained, respondent argued
that the circuit court based its decision on the overnight visits granted to the petitioner in
the judgment of allocation of parental responsibilities, rather than the actual number of
days the petitioner exercised per year. Although we have reviewed the record and have
concluded that the record does not support this assertion, the record is not so clear in its
lack of support that we can say that no reasonable attorney would bring this appeal or that
sanctions are otherwise warranted under Rule 375(b) standards. Accordingly, we reject
petitioner’s request that we award sanctions against respondent for bringing this appeal that
is lacking a record that supports her argument.
¶ 32 Based on the above, respondent’s appeal is unsupported by the record and fails to
demonstrate that the circuit court based its application of section 505(a)(3.8) solely on
petitioner’s entitled parenting time. As such, we find that the circuit court did not abuse its
discretion in calculating petitioner’s child support obligation.
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 35 Affirmed.
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