In re Marriage of Lesniak ( 2019 )

2019 IL App (2d) 181041-UNo. 2-18-1041
Order filed December 17, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
ERIN M. LESNIAK, ) of McHenry County.
)
Petitioner-Appellee, )
)
v. ) No. 14-DV-72
)
JEFFREY W. LESNIAK, ) Honorable
) Michael E. Coppedge,
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court.
Presiding Justice Birkett and Justice Bridges concurred in the judgment.
ORDER
¶1 Held: The trial court erred by granting mother’s motion for a directed finding where the
father established a substantial change in circumstances because his share of
overnight custody increased from approximately 5% to 43%; trial court’s judgment
vacated, cause remanded.
¶2 Respondent, Jeffrey W. Lesniak, petitioned the trial court to reduce his monthly child
support obligation to petitioner, Erin M. Lesniak. He alleged that a substantial change in
circumstances had occurred since the entry of the most recent support judgment, which was the
original judgment dissolving the parties’ marriage of nearly five years. Jeffrey alleged that a
substantial change in circumstance had occurred because, inter alia, his parenting time with their
2019 IL App (2d) 181041-Uson had greatly increased. The trial court granted Erin’s motion for a directed finding. Jeffrey
appeals. We vacate and remand for further proceedings.
¶3 I. BACKGROUND
¶4 The parties married in June 2009. They had a son, E. L. (born in 2012). In April 2014 the
trial court entered a judgment of dissolution of marriage that incorporated the parties’ marital
settlement agreement and joint parenting agreement. The parties’ shared joint custody, and Jeffrey
had E.L. approximately 17 overnights per year. The court set Jeffrey’s child-support obligation at
$712.15 every two weeks, based on Jeffrey’s net monthly income of $7013. The court stated that
the child-support obligation was “in excess of the statutory minimum.”
¶5 In September 2018 the court entered an allocation judgment modifying parental
responsibilities and parenting time. The judgment provided that Jeffrey had 156 overnights per
year with E.L.
¶6 Subsequently, in September 2018 Jeffrey filed a petition for modification of child support
alleging that, since the entry of the judgment of dissolution, there have been several substantial
changes in circumstances. Jeffrey set forth the following bases for a substantial change: (1) E.L.
has become older, he has enrolled in school full-time, and his expenses have changed significantly;
(2) the living arrangements of Jeffrey and Erin have both changed; (3) Jeffrey has remarried and
has had another child for whom Jeffrey incurs additional expenses, and the parties have moved;
(4) the parties’ incomes have changed; and (5) the allocation of parenting time has been modified.
As a result, Jeffrey has more than 156 overnights each year with E.L. Jeff’s petition was
accompanied by a financial affidavit showing a monthly net income of $7299.
¶7 At the December 6, 2018, hearing, Jeffrey testified that the judgment of dissolution
allocated him 17 overnights a year. His overnights were later increased by agreement from 17 per
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2019 IL App (2d) 181041-Uyear to 52. As the result of the court allocation judgment entered in September 2018, Jeffrey had
160 overnights with the parties’ son. Jeffrey’s substantial increase in parenting time with E.L. had
increased Jeffrey’s expenses, including increases in the cost of “food, clothing, [and] activities.]”
Since the parties’ divorce, Jeffrey has remarried, had a child with his second wife, and has
purchased a home—all events triggering increased expenses. Jeffrey also testified that since the
judgment of dissolution, there had been no modification in his child-support obligation.
¶8 During cross-examination, Jeffrey testified that his gross monthly income of $9,280 was
approximately the same as his income at the time of the parties’ divorce in 2014. The parties
stipulated that Jefferey’s gross income was approximately $300 less at the time of the hearing than
at the time of the entry of the judgment of dissolution, because his taxable wages for 2014 totaled
$102,968 and his taxable wages for 2017 totaled $100,894.
¶9 Erin testified that her gross monthly income was $6700, and she received $1543 in monthly
child support from Jeffrey. Since the entry of the allocation judgment in September 2018, Jeffrey
has exercised his parenting time consistent with the revised schedule. Erin argued, in part, that
more overnights did not “qualify as a substantial change in circumstances” where “[t]he child
support statute clearly states that modification cannot be based on a change in the statute alone.”
Jeffrey argued, in part, that the revision of the statute was not the basis for his substantial change
in circumstances; rather, the increase in overnights was the basis.
¶ 10 On December 6, 2018, the trial court granted Erin’s motion for a directed finding and
denied Jeffrey’s petition for modification of child support. The court determined that Jeffrey failed
to establish any basis for a substantial change in circumstances. Regarding the increase in
parenting time, the trial court determined that “the statute also provides that the adoption of the
statute cannot be used as a basis to modify child support. *** [I]t is this court’s conclusion that
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2019 IL App (2d) 181041-Ustanding alone, more overnight time would affectively [sic] be invoking the new statute as a basis
to modify child support, which the court believes the legislature intended to prohibit. *** [A]n
appellate authority may disagree.”
¶ 11 Jeffrey timely filed a notice of appeal on December 19, 2018.
¶ 12 II. ANALYSIS
¶ 13 Jeffrey argues that the trial court erred by granting Erin’s motion for a directed finding.
In cases tried without a jury, the defendant may move for a directed finding in his or her favor at
the close of the plaintiff's case. 735 ILCS 5/2-1110 (West 2016); Vician v. Vician, 2016 IL App
(2d) 160022, ¶ 35. To present a prima facie case the plaintiff must present some evidence on each
element essential to the cause of action. Vician, 2016 IL App (2d) 160022, ¶ 35. A motion for a
directed finding must be denied if the plaintiff has presented a prima facie case. Gorski v. Board
of Fire & Police Commissioners of the City of Woodstock, 2011 IL App (2d) 100808, ¶ 34. Our
review of such a determination is de novo. North Spaulding Condominium Ass’n v. Cavanaugh,
2017 IL App (1st) 160871, ¶ 20.
¶ 14 If the plaintiff has presented some evidence on every element, then the court must consider
and weigh the totality of the evidence presented, including evidence that is favorable to the
defendant. Vician, 2016 IL App (2d) 160022, ¶ 35. After weighing all the evidence, the court
should apply the standard of proof required for the underlying cause and determine whether
sufficient evidence remains to establish the plaintiff's prima facie case. Id. If such evidence
remains, the court should deny the defendant’s motion and continue with the trial. Id. We review
these determinations under the manifest weight of the evidence standard. See North Spaulding
Condominium Ass’n, 2017 IL App (1st) 160871, ¶ 20. A decision is against the manifest weight
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2019 IL App (2d) 181041-Uof the evidence if the opposite conclusion is clearly apparent. Gorski, 2011 IL App (2d) 100808,
¶ 34.
¶ 15 The decision to modify child support is a two-step process. First, the court must find a
substantial change in circumstances. Second, the court must look to the statutory factors to
determine the new amount. In this case, the court found no substantial change, so it did not reach
the second step.
¶ 16 The Act allows a trial court to modify a child support obligation upon a showing of a
substantial change in circumstances. 750 ILCS 5/510(a)(1) (West 2018); In re Marriage of Izzo,
2019 IL App (2d) 180623, ¶ 25. Typically, a substantial change in circumstances means the child’s
needs, the obligor’s ability to pay, or both have changed since the entry of the most recent support
order. In re Marriage of Verhines & Hickey, 2018 IL App (2d) 171034, ¶ 79. Further, “[a]
significant change in custodial arrangements, by itself, is sufficient to establish a substantial
change that would justify the modification of child support.” Izzo, IL App (2d) 180623, ¶ ¶ 28.
See also In re Marriage of White, 204 Ill. App. 3d 579, 582 (1990) (where custody of child was
transferred from one parent to another, a substantial change had occurred).
¶ 17 To obtain a reduction in his or her child support obligation, the obligor parent must prove
that there has been a substantial change in circumstances since the most recent support order. In
re Marriage of Sorkin, 2017 IL App (2d) 160885, ¶ 28. In this case, the most recent order, the
April 2014 judgment of dissolution, provided that E.L. spend 17 nights a year with Jeffrey. Then,
a September 2018 order provided that E.L. would spend 156 nights a year with Jeffrey. In other
words, Jeffrey’s share of overnight custody increased from approximately 5% to 43%. Erin has
not denied these facts. Thus, Jeffrey established a significant change in custodial arrangements
sufficient to establish a substantial change in circumstances. See Izzo, 2019 IL App. (2d) 180623,
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2019 IL App (2d) 181041-U¶ 27 (this court held that the obligor established a substantial change in circumstances where his
share of overnight custody increased from 15% of the nights to 43%). While a child-support award
may provide for more than the child’s basic need, a child-support award is not meant to be a
windfall to the receiving parent. Izzo, 2019 IL App. (2d) 180623, ¶ 28.
¶ 18 Erin argues that the trial court properly granted her motion for a directed finding because
the section 510(a) of the Act prohibits a finding of a change in circumstances based on a change
in the Act itself. We disagree. Section 510(a) of the Act provides in relevant part:
“The court may grant a petition for modification that seeks to apply the changes
made to subsection (a) of Section 505 by Public Act 99-764 to an order entered before the
effective date of Public Act 99-764 only upon a finding of a substantial change in
circumstances that warrants application of the changes. The enactment of Public Act 99-
764 itself does not constitute a substantial change in circumstances warranting a
modification.” 750 ILCS 5/510(a) (West 2018).
¶ 19 In Izzo, 2019 IL App (2d) 180623, we rejected the argument that Erin advances here. In
this case, Jeffrey, as the father did in Izzo, points to an actual change in circumstances, “his
significant increase in parenting time,” rather than relying on the enactment of Public Act 99-764
itself. Id. ¶ 34.
¶ 20 Erin cites In re Marriage of Salvatore, 2019 IL App (2d) 180425, to support her argument.
In Salvatore, the father filed a petition to modify child support based solely on an increase in the
mother’s income since the original judgment. The father’s child-support obligation was set under
the prior version of section 505 of the Act. Id. ¶ 5. The father argued that the court should consider
that his child-support obligation under the new statutory guidelines would be less than half of his
obligation based on the prior guidelines. This court rejected the father’s argument because the
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2019 IL App (2d) 181041-Ufather relied on the passage of Public Act 99-764 (eff. July 1, 2017) (amending child support
provisions) to establish a substantial change in circumstances. Id. ¶ 33. However, unlike
Salvatore, this case involves a change in parenting time and does not rely on the new guidelines
to establish a substantial change in circumstances. Thus, Salvatore is distinguishable from this
case.
¶ 21 Erin also argues that the parties contemplated that Jeffrey’s overnights could fluctuate or
change in the future. Erin contends that this is reflected in the parties’ marital settlement agreement
as incorporated into the judgment of dissolution wherein Jeffrey is granted the right of first refusal
that allowed him to take E.L. when Erin is working or is otherwise unavailable. Further, according
to Erin, the parties agreed to review child custody on an annual basis. This argument or evidence
was not presented before the trial court because the trial court granted Erin’s motion for a directed
finding. On remand, Erin will have an opportunity to present her case.
¶ 22 In conclusion, Jeffrey presented a prima facie case of a substantial change based on
increased parenting time. Thus, we need not consider Jeffrey’s additional allegations of a
substantial change in circumstances. Further, the trial court’s decision to grant Erin a directed
finding after the close of Jeffrey’s case was against the manifest weight of the evidence.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we vacate the trial court’s judgment and remand for further
proceedings.
¶ 25 Vacated and remanded.
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