In re Marriage of Britton ( 2022 )

Rule 23 order filed 2022 IL App (5th) 210065January 27, 2022.
Motion to publish granted NO. 5-21-0065
February 24, 2022.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
KRISTI BRITTON, ) Williamson County.
)
Petitioner-Appellee, )
)
and ) No. 12-D-183
)
BRENT BRITTON, ) Honorable
) Carey C. Gill,
Respondent-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court, with opinion.
Justices Welch and Moore concurred in the judgment and opinion.
OPINION
¶1 Respondent, Brent Britton, appeals the trial court’s orders that (1) required him to
reimburse petitioner, Kristi Britton, for one-half of the cost of voluntarily-obtained supplemental
insurance; (2) shifted Brent’s obligation to pay the children’s health insurance premiums to Kristi;
(3) ordered Brent to reimburse Kristi for educational expenses incurred prior to the filing of the
modification petition; (4) imputed income to Brent; (5) determined Brent’s gross monthly income
was $14,529; (6) calculated Kristi’s gross income without interest or capital gain stemming from
a stock sale; and (7) calculated child support and awarded arrearage based on the erroneous
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findings for income. For the following reasons, we affirm in part, vacate in part, and remand for
further proceedings.
¶2 I. BACKGROUND
¶3 Kristi and Brent were divorced on April 25, 2012. Two children were born of the marriage,
K.B., born 05/02/2003, and A.B., born 02/09/2005. The parties entered into a marital settlement
agreement (MSA) and a joint parenting agreement (JPA) that were incorporated into the judgment
of dissolution. Pursuant to the JPA, the parties shared joint custody of the children with Kristi as
the residential parent and Brent receiving parenting time. Pursuant to the MSA, Brent would pay
$200 per week in child support and maintain health insurance on the minor children with each
party responsible for “one half of all deductibles and expenses *** not covered by insurance.” The
parties also agreed to split the expenses for the children’s extracurricular activities up to $500 per
year. Based on the dissolution documents, both Brent and Kristi were employed, held equal shares
of Britton Trucking, Inc., Britton’s Wrecker Service, Inc., and Britton Transportation Services,
Inc., and would continue to use their company cars following the divorce. No income was listed
for either party.
¶4 On October 17, 2017, Kristi filed a petition to modify claiming that when the parties
divorced, Brent’s income was approximately $1030 per week. She alleged a substantial change in
circumstances since the dissolution, claiming that Brent’s income had increased substantially, the
needs of the minor children had changed, and the cost of providing for those needs had increased.
On November 22, 2017, Brent admitted his income had increased substantially but denied the
needs of the minor children had changed and the cost of providing for those needs increased.
¶5 On December 12, 2017, Brent filed a counterpetition to modify the JPA stating, inter alia,
that despite the joint custody classification, Kristi involved the children in numerous
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extracurricular activities without Brent’s agreement which limited, hampered, or undermined his
parenting time. Brent also contended that Kristi had enrolled K.B. in a private school in Missouri,
against his wishes, which required him to drive 75-80 minutes each way to pick up and drop off
K.B. at school. Brent also filed a petition for rule to show regarding his allegedly disrupted
parenting time.
¶6 Kristi responded on December 21, 2017, admitting, inter alia, the parties mutually
modified the prior parenting time agreement and that she permitted the children to become
involved in the extracurricular activities. She affirmatively stated that she was “under no obligation
to discuss or obtain the agreement of [Brent]” and claimed that prior to the filing he “never objected
to the children’s extra-curricular activities or the time they occur.”
¶7 Following unsuccessful mediation, Kristi filed her financial affidavit on March 5, 2018.
The affidavit listed her gross income in 2017 as $157,533, which included pension fund money
used to build a house. It further listed her gross income in 2018 (through February 15, 2018) as
$8070.10. Her gross monthly income, before taxes, was $7603.19, which included her employment
($4635.92), child support ($866.67), and payments for her shares of the Britton businesses
($1050.30). The document also revealed that her new husband’s medical insurance policy covered
her and the children.
¶8 On December 27, 2018, Kristi filed a petition to allow attorney fees stating she was without
adequate funds to pay her attorney fees and that Brent earned “significant sums of money” and
was “well able to pay” Kristi’s incurred attorney fees. On the same date, Kristi also filed a petition
for rule to show cause claiming that Brent refused and failed to pay reimbursement related to
medical bills that were not covered by insurance and the children’s extracurricular activities. Brent
responded on January 10, 2019, admitting he was gainfully employed but denied the remainder of
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the allegations. Brent also denied that he refused to pay any medical expenses or his portion of the
children’s extracurricular activities.
¶9 Kristi filed an updated financial affidavit on July 25, 2019, and an amended financial
affidavit on August 7, 2019. The amended financial affidavit listed gross monthly income of
$6190.84. The document claimed that Kristi received $2100.60 from Brent “as part of their
property settlement.” The document again noted that Kristi and the minor children were covered
under her new husband’s health insurance policy.
¶ 10 On July 31, 2019, Brent filed a pretrial memorandum that included a financial affidavit
dated July 30, 2019. The affidavit stated his gross income in 2018 was $55,768 and $21,750 in
2019 (through July 26, 2019). The affidavit listed Brent’s gross monthly income as $4902.42. He
claimed that his total available monthly income was negative $2594.31. Brent’s tax returns were
attached to the pleading.
¶ 11 On August 8, 2019, the parties proceeded to hearing. The trial court noted all pending
pleadings and stated the parties would present the evidence and testimony related to the children
first; thereafter, the court would proceed on the financial issues. Following the hearing, the trial
court ordered joint decision making as to the extracurricular activities, stated that K.B. would
continue to attend private school in Missouri, and amended the parenting time schedule to provide
additional time to Brent so long as the children were taken to all scheduled activities. The order
reserved ruling on holiday parenting time.
¶ 12 Kristi filed a “second corrected child support calculation” on October 30, 2019, based on
the new parenting time allocation. The document listed Brent’s income as $176,569 in 2018,
$216,305 in 2017, and $293,917 in 2016. The income amounts included section 179 (26 U.S.C.
§ 179 (2018)) deductions of $107,700 in 2018, $174,322 in 2017, and $118,133 in 2016 reported
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on Brent’s business taxes. Kristi averaged these amounts, divided the average by 12, and claimed
Brent’s monthly income was $19,077.
¶ 13 On October 31, 2019, the trial court issued its order as to holiday parenting time and reset
the financial hearing for a later date. At the hearing, Kristi tendered 22 exhibits for the financial
hearing with no objection from Brent and Brent submitted an amended financial affidavit. Brent’s
amended financial affidavit listed gross income of $98,070.01 in 2018 and total gross income in
2019 (through October 25, 2019) as $73,495.80. The affidavit listed $6618.33 in monthly gross
income comprised of $3117.50 in regular employment earnings, $135.42 in rental income,
$2613.87 in distribution and draws, and $1618.21 in-kind payment of health insurance from his
business. The affidavit listed Brent’s total available monthly income as negative $3447.63.
¶ 14 On December 26, 2019, Kristi filed an amended petition to modify. The amended petition
requested an increase in child support (as before) and contribution from Brent towards the
children’s educational expenses, including private school tuition, fees, books, lunches, and
extracurricular activities. Brent’s January 13, 2020, response denied that his income increased
significantly but agreed the needs of the minor children changed and increased. Brent admitted the
remaining allegations but denied Kristi was the sole source of funding for private school because
he had been paying child support for the benefit of the children since the judgment of dissolution
was entered and contended both parties should contribute to the support of the children.
¶ 15 On February 13, 2020, the case proceeded to hearing on the remaining financial issues.
Kristi testified that she was 39 years old and was employed by University of Illinois Extension
where she worked as a youth development educator. She stated that her amended financial affidavit
incorporated the raise she received the previous year, and she recently received another raise. Kristi
stated the children attended school at Saxony Lutheran in Jackson, Missouri, and the monthly
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tuition was $1075. The children’s lunches were an additional $140 per month. She stated that she
had always been the only person to pay their tuition and that the children attended private school
since kindergarten. Kristi stated that she sold her ownership of the Britton businesses back to Brent
and those monthly amounts were included in her income on her financial affidavit. On cross-
examination, Kristi confirmed that her future State of Illinois salary was $57,907.25. She also had
additional income in the amount of $2100 per month for the sale of the business stock to Brent.
She admitted the total amount received was $22,897 and listed as a capital gain on her 2018 tax
return.
¶ 16 Brent testified that he was 39 years old and was the owner of Britton Trucking, Inc., Britton
Transportation Services, Inc., and Britton’s Wrecker Service, Inc. Britton Trucking owned the land
and building where it sat and rented it to the wrecker service. Britton Transportation Services, Inc.,
operated as a separate company because the federal motor carrier rules did not allow a broker
license in the same name of the trucking company, so it was for the broker license only. Britton’s
Wrecker Service, Inc., was a towing recovery business with locations in Metropolis, Vienna, and
Mounds, Illinois. Each location had its own heavy duty, light duty, and service trucks. Brent
confirmed the copies of his 2016, 2017, and 2018 tax returns. He also confirmed that his total
household income listed on the tax returns was $87,976 in 2018, $152,530 in 2017, and $128,897
in 2016.
¶ 17 Brent was provided copies of his July 30, 2019, and October 25, 2019, affidavits and was
asked about the discrepancies in the numbers during that three-month period. He confirmed that
he did not make $53,000 in three months. He stated that he was provided the first affidavit 12
hours before it was due, and he prepared the second one after he sat down with his accountant. His
accountant told him he had to include distributions from the company which was classified as
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partnership distribution money. They calculated all those numbers and separated them out to make
the second affidavit more accurate, which also included his health insurance. Brent agreed that
based on his affidavit, he was spending $40,000 more a year than he was making.
¶ 18 Brent agreed that his real estate taxes were higher on the second affidavit because it was
revised to be more accurate. He stated that the mortgage listed on the affidavit was one-half of the
actual amount, the homeowner’s insurance was the full amount, and the electric bill was probably
one-half of the actual amount. The amounts for cable and internet were the full amounts. Groceries
were about $100 each week on average. Brent also stated that the car payment was double what it
showed. Repairs and maintenance along with insurance, license, and stickers were also “probably
double that.” Brent stated that the personal expenses listed on his affidavit were accurate and
included only his medical expenses. Brent confirmed that the household also paid medical
expenses for his wife. He was unsure how much he paid in out-of-pocket expenses for his wife the
year before. He thought they met their deductible, which he believed was $3500 per person.
¶ 19 Brent agreed that he included $300 per month for vacations and stated it was an average of
what he figured for himself. He agreed it would be double if they included his wife and more yet
if they included the children. He testified that he went on one cruise that year and five people went
on the cruise. He stated it was about $789 per person and with taxes it cost about $3600. Counsel
then stated that it would be $600 a month on average if his wife was included. Brent asked, “You
want to include her portion in this too?” Counsel stated, “Well her income is on your tax return,
isn’t it?” Brent confirmed that it was.
¶ 20 Brent was then asked about the $480 per month listed for doctor’s visits for his children
and the claimed medical expense of over $5000 per year. Brent explained that his son had a kidney
problem, and they were going to St. Louis on a regular basis. Brent also confirmed the average
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monthly attorney fee of $1001.20. and the annual attorney fee of $12,000 in 2019. Brent agreed
his prior financial affidavit did not include attorney fees. Brent confirmed he currently had no
attorney fee debt. He agreed that he did not provide the fair market value of his businesses, stating
it would be hard to estimate without appraisals.
¶ 21 Brent confirmed that he ran a deficit of $3447 a month. Kristi’s counsel stated that doubling
the expenses would increase the deficit by over $2500, for a total of $6000 a month, and asked
Brent, “So *** that $72,000.00 a year that you’re spending in excess of your income. Where does
that money come from?” Brent stated it was all solely based on his personal income. Counsel again
asked, “Okay, back to where I was, where does this $72,000.00 come from that you spend in excess
of your income based upon your Financial Affidavit?” Brent stated that his wife worked too and
up until recently she had worked every day. Brent confirmed that his total household income listed
on his 2018 taxes was $87,000. Counsel then asked again, “Where does the extra money come
from that your budget reflects you spend above and beyond your income?” Brent stated, “If you
look in the tax returns on the back side where it shows distributions on those pages, those
distributions are reflections to this. So, those distributions are directly distributed to me. My wife
owns a business as well. Some of them are distributed directly to her.” Brent confirmed that his
monthly business distributions were listed as $2613.87 on his financial affidavit and that the
amount was included in the $6618.33 listed as his total income on the financial affidavit. Counsel
stated that “with the distributions you have shown on this Financial Affidavit, you got the $3447.00
deficit every month.” Brent stated, “I did something wrong. I don’t know. I really can’t answer
that question 100 percent. I don’t know how. I done something wrong.” Counsel then asked,
“Would it be fair to say you don’t know where all distributions come from that you incorporate
into your living expenses?” Brent replied, “No, that would not be. *** [T]he distributions come
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from the corporations. The corporations are itemized in the tax returns of the distributions *** but
I did this on a basis, so I really don’t know the answer to that question. Sorry.” Counsel then stated,
“Let me ask the question another way. Would it be fair to say that you get distributions that go to
your monthly living expenses that don’t show up on your tax return as taxable income?” Brent
stated, “No.” He again confirmed the gross family income on the 2018 tax return as $87,976.
¶ 22 Brent stated that he lived in Tunnel Hill on six acres. He stated that the wrecker service
owned 113 acres that adjoined his property and agreed that he moved dirt on that property to create
a pond. He explained that they were flattening a hill to build a building in the future and stop
erosion on the property. He agreed that he kept horses on the property. He stated that the 113-acre
parcel was the future location for his business because he needed a bigger lot and building where
all the vehicles could be parked. He stated the price was cheaper than buying five acres in town.
All the trucks, including the wrecked semis, could be parked on the future location. He agreed the
company made the monthly payment on the 113 acres. He stated that 23 acres of the property were
fenced and that was where he kept his horses. He agreed that none of the trucks were on the 23
acres, and he currently had no business use on the 23 acres.
¶ 23 On cross-examination, Brent confirmed that, other than the 23 acres, there were no other
monthly expenses that he had or that his wife had that were paid by the business and that anything
that was paid by the business was distributed on the tax returns. He agreed that a few of the
expenses on his affidavit were paid by the business but they reflected the income for that on the
affidavit which included the health insurance payment. Brent had an accountant who prepared both
his personal and the business income taxes. The accountant would come in once a month and work
with the secretary to keep everything current. Brent stated that some of his businesses had very
substantial purchases in the last few years, including wreckers and equipment, which were
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reasonable and necessary expenses associated with the business. He stated there were three
wrecker services with equipment at each location. Brent testified that the section 179 expenses
were necessary for the business and the information was contained in the tax returns. He was
unaware of any IRS or State of Illinois challenge to his tax returns. He further confirmed that no
state or federal agency ever challenged the section 179 expenses set forth on the tax returns.
¶ 24 On redirect, Kristi’s counsel stated that Brent had roughly $72,000 more in expenses than
his tax return reflected in income and again asked Brent where he was getting the money to pay
these expenses each month. Brent stated that counsel’s statement was incorrect. He stated there
were certain expenses, such as the property tax and health insurance, that the company directly
wrote checks for and that showed up on his tax returns, but it was not listed as personal income.
He included his half of that on his affidavit. He stated that some of the distributions went to his
wife and those were not listed on his financial affidavit. He disagreed with counsel’s claim of a
$70,000 error. Brent stated that he went over the numbers in detail with his accountant. He did not
believe that his deficit was greater than was shown on his affidavit.
¶ 25 On recross, Brent disagreed that he had roughly $70,000 in excess every month that was
paid toward his individual bills. On redirect, Kristi’s counsel again asked Brent how the expenses
were being paid if he did not have the extra money or new debt to show they were not being paid.
Brent responded that he did not have those kinds of expenses.
¶ 26 Following a break, Brent’s counsel called Brent back to the stand. Brent confirmed that his
2018 tax return contained income for both him and his wife. He stated his tax returns also contained
the K-1s that showed the amounts of income for distributions from the business. Brent’s financial
affidavit listed an income of $98,070.01. Brent agreed that his tax return reflected a different
amount of income. He agreed that his expenses, that were partially or in-whole paid by the
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company, were accounted for in the distributions shown on his tax returns. This included the
mortgage, real estate taxes, insurance, cell phone, car payments, and gasoline. He confirmed that
his wife had income she received in addition to what was reported on his financial affidavit. He
disagreed that the $70,000 in expenses existed. On cross-examination, Brent confirmed that he
received $55,120 in wages from Britton’s Wrecker Service and his wife was paid $11,414.
¶ 27 The court stated it would allow the parties to submit posthearing briefs on the issue of
Brent’s income and the child support calculation. The court also asked about Kristi’s health
insurance. Kristi’s counsel clarified the issue was whether the secondary insurance, covered at his
client’s cost, should benefit Brent, or only applied toward Kristi’s share of the noncovered
medicals. After discussing the health insurance issue, the court stated:
“All right. I am going to rule on this. I don’t want a brief on the health insurance. What I
am going to rule is for that amount that was paid before, he is going credit—give her $50.00
a month for each of the months that she paid the $100.00. You’re both responsible for
health insurance. *** That’s my ruling. Going forward, I would hope that you can resolve
it. I have ruled on the health insurance.”
¶ 28 The court then moved on to the educational expenses. Brent’s counsel stated that the parties
should share the cost of the tuition with each paying half. The court asked Kristi’s counsel if she
was asking for something different than that, and he said, “No, your Honor.” Thereafter, the court
stated, “All right. And that will go back for the entire time that the child was in school—that the
children were in school; is that correct, Mr. Reed?” Kristi’s counsel stated, “If the court would
consider making it that far retroactive, your Honor.” Brent’s counsel asked that it only go “from
the date of the order forward.”
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¶ 29 Thereafter, the court noted four issues: (1) the party’s net income for child support,
(2) educational expenses and extracurricular expenses, (3) petitioner’s voluntary health insurance,
and (4) attorney fees, and stated:
“All right. As to net income, I will permit the petitioner to file an updated pay stub to
calculate her net income. I am going to impute some income to respondent. I will permit
the parties to brief the amount of imputed income and also arguments as to Section 179
deductions. *** [T]his *** ruling *** is significant because I find the testimony of the
respondent not credible as to his actual income and expenses.
Sir, your testimony, unfortunately, doesn’t give me the ability to figure out what
your income is. Accountants and preparation of tax returns can maybe, let’s say, massage
the numbers to give you better tax advantage or to do things, but you have to know what
you earn, and you have to know what you pay, and you have to be candid with the Court.
*** I find that your Financial Affidavit was not accurate. I think the one thing that I can
say was that likely did not reflect your actual expenses and your actual income. I heard
testimony that there were things listed as your expenses that the company paid. Sounded
like that might have also been included as income that you brought in that you had included
as your income but then you subtracted it out as your expense[,] but it wasn’t your expense.
It likely should have just been included in your income because it was in-kind payment to
you, but you were paying out the expense. It was an in-kind payment to you because they
paid it for you, but it was very difficult to follow, and not answering the questions doesn’t
give me the information that I need *** to determine your net income. So, I am going to
permit counsel to brief those amounts. You will be imputed some income. I do find that
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the one thing I know is that you’re making more income than what your affidavit says. The
question is[,] how much more.
As to educational expenses and extracurricular expenses, I am going to rule that the
education expenses shall be shared 50/50 by the parties retroactive to the start of the school
year for 2019-2020. *** I will allow you to tender that agreement as to what that’s going
to look like. There is going to be a refund from the respondent to the petitioner for what’s
been paid for 2019-2020 school year or whether you are going to alternate payments on
years. I will permit that to be tendered to me by agreement. If you don’t reach an agreement,
I will come up with a way that I will order.
The parenting *** [p]lan remains as previously entered regarding the
extracurricular activities. So, it’s going to stay what it was. Share in it up to that dollar
amount, and I will let counsel look at what that was. But my ruling is that I find no reason
to change that.”
¶ 30 After confirming that Kristi had been paying the voluntary health insurance premiums
since June of 2014, and hearing arguments from counsel, the court continued:
“All right. We’re not going to go back an indefinite amount of time, but we’re going to—
you’re going to pay 50 percent of those voluntary premiums from 2018 to the present from
January 1st, 2018[,] to the present.”
¶ 31 The court also stated:
“All right. Future calculation of the child support shall take into consideration all
payments of health insurance regardless of where they fall. That should be able to be
accomplished under the new format. If it’s not, counsel, you can let me know and we’ll
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figure out what we’re going to do. Perhaps it’s just better to look at what insurance is best
and cheapest and most accommodating.
Fourth, petitioner’s request for contribution to attorney’s fees, um, I am going to
reserve ruling and permit briefs on that issue.”
¶ 32 The trial court ordered Brent to provide the tax, mortgage, and insurance information
related to the 23 acres of the 113 acres owned by his business that was used to house the horses.
The trial court’s February 13, 2020, docket hearing entry confirmed, inter alia, that education
expenses would be shared 50/50 by the parties, “retroactive to the start of the school year or 2019-
2020,” and Brent was required to “pay for 50% of [Kristi’s] voluntary [health insurance] premiums
from 1/1/2018 to present.”
¶ 33 Kristi filed an updated paystub with the court on February 20, 2020, that listed her gross
monthly income as $4825.60. Following submission of the posthearing briefs, which included
Kristi’s claim that Brent’s monthly net income was $15,263 and Brent’s claim that his 2018
monthly gross income was $7636.78, and a hearing on June 16, 2020, at which time the court heard
arguments as to whether petitioner’s income should include money from the sale of the stock to
Brent, the court issued a docket entry ruling that found:
“1. THAT SAID STOCK SHALL NOT BE INCLUDED IN PETITIONER’S NET
INCOME AS IT IS MORE IN THE NATURE OF SHARES OF STOCK CAPABLE OF
BEING SOLD (IN RE MARRIAGE OF MARSH, 2013 ILL. APP. (2D) 130423 (2013)),
RATHER THAN UNVESTED STOCK OPTIONS (IN RE MARRIAGE OF
COLANGELO, 355 ILL. APP. 3D 383 (2005)).
2. HEALTH INSURANCE SHALL BE SHARED 50/50 BY PARTIES. MINOR
CHILDREN SHALL BE COVERED UNDER HEALTH INSURANCE OF
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PETITIONER, SO LONG AS IT IS MORE COST-EFFECTIVE TO HAVE SAID
COVERAGE, OR BY AGREEMENT OF THE PARTIES.
3. INCOME OF RESPONDENT (AS TO ACTUAL AND IMPUTED) IS TAKEN
UNDER ADVISEMENT.
4. PETITIONER’S REQUEST FOR ATTORNEY’S FEES IS DENIED.
COURT RULES THAT RESPONDENT[’S] GROSS INCOME (AS TO ACTUAL
AND IMPUTED) IS SET AT $14,529.00 PER MONTH.”
¶ 34 The child support calculations were submitted on July 15, 2020. On September 29, 2020,
the trial court issued a docket entry order finding that Brent’s child support obligation beginning
in September 2020 would be $1010.66. The court also noted the new issue arose toward arrearages
and set the matter for a hearing which was held on November 24, 2020. Both parties filed their
closing arguments on child support arrearage on December 22, 2020.
¶ 35 On February 5, 2021, the trial court issued a docket entry order that ordered child support
arrearage back to November 1, 2017. Thereafter the court found that Brent’s child support from
(1) November 2017 to July 2019 was $1538.26 per month, (2) August 2019 to August 2020 was
$785.56, and (3) September 2020 going forward was $1010.66 per month. On March 5, 2021,
Brent appealed.
¶ 36 II. ANALYSIS
¶ 37 On appeal, Brent contends that the trial court (1) did not have subject matter jurisdiction to
order him to pay one-half of Kristi’s supplemental health insurance policy or revise the health
insurance obligation; (2) did not have subject matter jurisdiction to award educational expenses
prior to the date Kristi filed her amended petition to modify; (3) erred when imputing income to
Brent; (4) erred when it calculated Brent’s net income from the erroneous gross income; (5) erred
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when it calculated Kristi’s gross income without interest or capital gain; and (6) erred in
calculating the child support and arrearage based on the erroneous incomes.
¶ 38 Health Insurance—Kristi’s Supplemental Policy
¶ 39 Whether a court has subject matter jurisdiction to grant the relief provided is a question of
law that is reviewed de novo. In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004).
Decisions issued without jurisdiction are void. Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994).
As noted by Ligon:
“The court’s authority to exercise its jurisdiction and resolve a justiciable question is
invoked through the filing of a complaint or petition. [Citations.] These pleadings function
to frame the issues for the trial court and to circumscribe the relief the court is empowered
to order; a party cannot be granted relief in the absence of corresponding pleadings.
[Citations.] Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where
no justiciable issue is presented to the court through proper pleadings, the court cannot
adjudicate an issue sua sponte.” Id.¶ 40 The April 25, 2012, MSA stated that Brent “shall maintain health insurance” on the
children and “each party shall be responsible for payment of one-half of all deductibles and
expenses” not covered by insurance. None of the parties’ pleadings requested a contribution from
Brent toward the supplemental insurance. The relevance of Kristi’s health insurance stemmed from
the hearing on Kristi’s petition for rule to show cause at which time it was determined that Kristi
voluntarily obtained supplemental health insurance on the children, via her new husband’s
insurance at a cost of $100 per month, which covered amounts not paid by Brent’s primary health
insurance on the children. The issue was whether Brent could take advantage of the supplemental
policy towards his portion of the amounts remaining due after his insurance was used or if the
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supplemental policy only applied to Kristi’s portion. Following the February 13, 2020, hearing,
the trial court’s docket entry order stated, inter alia, that “Respondent [Brent] shall pay for 50%
of those voluntary premiums from 1/1/2018 to the present.”
¶ 41 “ ‘[A] judgment, order or decree entered by a court which lacks jurisdiction of the parties
or of the subject matter, or which lacks the inherent power to make or enter the particular order
involved, is void and may be attacked at any time or in any court, either directly or collaterally.’ ”
(Emphasis omitted.) R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986)
(quoting Barnard v. Michael, 392 Ill. 130, 135 (1945)). On appeal, Kristi argues that the trial
court’s ruling was proper based on her rule to show cause prayer for relief which requested,
“judgment be entered in favor of petitioner and against the respondent for all sums found due.”
¶ 42 However, the purpose of a rule to show cause petition is to determine if a party has
complied with a prior court order, allows the allegedly noncompliant party the opportunity to
explain any noncompliance and, if necessary, allows the trial court to enforce the prior court order.
See In re Marriage of LaTour, 241 Ill. App. 3d 500, 508 (1993). No part of the parties’ MSA
required Brent to pay 50% of Kristi’s supplemental insurance. As such, the trial court’s order
requiring Brent to pay 50% of Kristi’s supplemental insurance from January 1, 2018 (11 months
prior to the filing of Kristi’s rule to show cause petition), to February 13, 2020, pursuant to Kristi’s
rule to show cause petition is void for a lack of subject matter jurisdiction.
¶ 43 Health Insurance—Modification of the Obligation
¶ 44 Following the June 16, 2020, hearing, the trial court also modified the MSA to remove
Brent’s obligation to pay for health insurance and placed the obligation on Kristi. On appeal, Brent
contends that the trial court was without jurisdiction to make this modification. In response, Kristi
contends that the trial court’s ruling was exactly what Brent requested in “Respondent’s
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Demonstrative Aid Exhibit 1” filed with the court during the February 13, 2020, hearing. Kristi
also argues that because health insurance is incorporated with child support that her petition to
modify child support also covers the health insurance.
¶ 45 While Brent contends on appeal that no petition to modify the health insurance obligation
was before the court, there is no dispute that both parties submitted documentation to the trial court
permitting the modification. On February 13, 2020, Brent submitted what was catalogued as
“Respondent’s Demonstrative Aid #1” with the court. In that document, Brent stated, “As this
Court can see, the Aids contemplate Respondent (Father) no longer carrying health insurance for
the children. There is no reason for both parties to carry health insurance and Petitioner (Mother’s)
policy is a much more inexpensive policy.”
¶ 46 On July 15, 2020, Kristi’s counsel sent correspondence to the court that stated, inter alia,
“The parties have agreed that primary coverage will be through Kristi’s *** employment and that
they will be dividing equally the portion of the premium attributable to their children.” The
remainder of this issue addressed the proposed order and the need to start the process for coverage.
¶ 47 Later that same day, Brent’s counsel submitted his child support calculations. His pleading
advised the court, “This Court further Ordered the parties to determine what the best insurance
situation would be and equally share in the cost of such health insurance. This has not been
finalized by the Parties and is still being worked on.” However, the pleading further stated that
placing an arrearage burden on Brent would “cause an unnecessary financial hardship going
forward especially in light of the fact that Respondent is going to continue to pay one-half of the
tuition, paying one-half of the health insurance, and also paying child support on the imputed
income set by the Court.” (Emphases added.) Nothing in Brent’s pleading contradicted the
statements by Kristi’s counsel regarding the health insurance agreement.
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¶ 48 “Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial
court proceeds and later claim on appeal that the trial court’s actions constituted error.” (Internal
quotation marks omitted.) Direct Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918, ¶ 36.
“A party cannot invite an error by the trial court and then use it as a basis for appeal.” Id. Here, the
record reveals that both parties invited the trial court to issue an order modifying the MSA’s health
insurance obligation to Kristi and that both parties would contribute equally toward that premium.
As such, we find the trial court did not err in modifying the health insurance obligation.
¶ 49 Education Expenses
¶ 50 Kristi’s amended petition to modify support requested contribution from Brent toward the
children’s education expenses and was filed on December 26, 2019. The trial court’s oral February
13, 2020, order ruled that “education expenses shall be shared 50/50 by the parties, retroactive to
the start of the school year or 2019-2020.” (Emphasis added.) The trial court’s February 5, 2021,
docket entry order clarified this was “essentially relating back to August 2019.”
¶ 51 There is no dispute that the trial court’s order was retroactive to the start of the school year,
which was prior to the filing of the amended petition to modify. While Kristi contends on appeal
that the order should be interpreted in a manner that would not require Brent to pay any of the
retroactive education expenses, Kristi’s interpretation is not what the trial court ordered.
¶ 52 Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act states, “Except as
otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section
505.2,[1] the provisions of any judgment respecting maintenance or support may be modified only
as to installments accruing subsequent to due notice by the moving party of the filing of the motion
for modification.” 750 ILCS 5/510(a) (West 2018). “[O]nce a petition has been filed and upon a
1
Neither of these sections are applicable here.
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showing of a substantial change in circumstances, support payments can be modified as of the date
the petition was filed.” (Emphasis in original.) In re Marriage of Heil, 233 Ill. App. 3d 888, 895
(1992). As the trial court’s order was retroactive prior to the date that Kristi filed the amended
petition addressing the educational expenses, the order was contrary to law, and therefore, must be
vacated.
¶ 53 Imputed Income
¶ 54 “In order to impute income to a party, the court must find that the payor is voluntarily
unemployed, is attempting to evade a support obligation, or has unreasonably failed to take
advantage of an employment opportunity.” In re Marriage of Liszka, 2016 IL App (3d) 150238,
¶ 44. “If none of these factors are in evidence, the court may not impute income to the noncustodial
parent.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009). The court’s decision to
impute income is reviewed under an abuse of discretion standard. Id.¶ 55 Here, Brent claims that the trial court erred by imputing his income because it failed to
provide one of the three above-stated reasons for the finding. However, the trial court found that
Brent’s testimony regarding his income was not credible at the February 13, 2020, hearing. One
of the issues at that hearing was “the setting of respondent’s income” to determine child support
pursuant to Kristi’s petition to modify. Given the trial court’s finding, and the undisputed issue at
the hearing, we conclude that the trial court imputed income to Brent because it believed that he
was attempting to evade a support obligation. As such, the trial court’s finding that Brent’s income
could be imputed is not against the manifest weight of the evidence.
¶ 56 Amount of Imputed Income
¶ 57 A trial court’s determination of income is reviewed under an abuse of discretion standard.
Id. “The amount of income imputed by the court must be supported by evidence showing that it is
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commensurate with the supporting parent’s skills and experience.” Liszka, 2016 IL App (3d)
150238, ¶ 46. The amount “should be based on his earning capacity, not his spending habits.” Id.
¶ 50.
¶ 58 Here, Brent’s income stemmed from his employment and ownership of the Britton
enterprises. The legislature provided the following guidance for calculating business income:
“For purposes of calculating child support, net business income from the operation of a
business means gross receipts minus ordinary and necessary expenses required to carry on
the trade or business. *** The court shall apply the following:
(A) The accelerated component of depreciation and any business expenses
determined either judicially or administratively to be inappropriate or excessive
shall be excluded from the total of ordinary and necessary business expenses to be
deducted in the determination of net business income from gross business income.
(B) Any item of reimbursement or in-kind payment received by a parent
from a business, including, but not limited to, a company car, reimbursed meals,
free housing, or a housing allowance, shall be counted as income if not otherwise
included in the recipient’s gross income, if the item is significant in amount and
reduces personal expenses.” 750 ILCS 5/505(a)(3.1) (West Supp. 2017).
¶ 59 Our colleagues addressed the 2017 statutory change related to section 505(a)(3.1)(A) in
In re Marriage of Hochstatter, 2020 IL App (3d) 190132, ¶ 24, stating:
“It is clear that section 505(a)(3.1)(A) now explicitly excludes accelerated
depreciation from the calculation of net business income and does not explicitly mention
nonaccelerated depreciation. [Citation.] The implication from the continued omission of
nonaccelerated depreciation from the plain language of the statute is that it could still be
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deducted, but only if the court, in its discretion, determines it to be an appropriate and
reasonable business expense that is required to carry on the trade or business. [Citation.]
At a fundamental level, this is no different than the way nonaccelerated depreciation was
handled in the preamendment version of section 505.” (Emphasis in original.)
¶ 60 This court agreed with the Hochstatter discussion in In re Marriage of Burnett, 2021 IL
App (5th) 200326-U. In Burnett, we addressed depreciation and noted that
“under section 505, the court must first determine if any amount of the claimed depreciation
is accelerated depreciation. If so, that amount must be excluded as it is not allowed when
calculating income for the purposes of determining child support. Then the trial court must
look at the nonaccelerated depreciation and decide as to whether the depreciation is an
appropriate and reasonable business expense that is required to carry on the business.” Id.
¶ 149.
¶ 61 The trial court found that Brent’s imputed monthly gross income was $14,529. On appeal,
Brent argues that the basis of the trial court’s imputed gross income was unknown and therefore
its finding of net income was erroneous. Kristi agrees that the trial court’s gross income was not
supported by the evidence and now argues that Brent’s net income should have been set at
$18,721.59, because Brent’s gross monthly income should include the section 179 deductions, or,
in the alternative, Brent’s living expenses. 2 The parties correctly note that the trial court provided
no basis for Brent’s income calculation or discussion as to whether the amount was determined
2
“Ordinarily, when an appellee does not file a cross-appeal, the reviewing court will be confined to
the issues presented by the appellant and will not consider issues presented by the appellee, except to the
extent that they are related to the appellant’s issues.” People ex rel. Vuagniaux v. City of Edwardsville, 284
Ill. App. 3d 407, 415 (1996). While there is no dispute that Kristi failed to file a cross-appeal pursuant to
Illinois Supreme Court Rule 303(a)(3) (eff. July 1, 2017), it is equally undisputed that the argument involves
the same issue raised by appellant. As such, we will consider Kristi’s argument.
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pursuant to the business deductions or by Brent’s living expenses. As such, we decline to affirm
the trial court’s finding.
¶ 62 Regarding the business deductions, Brent’s tax forms specifically set forth the amount and
type of depreciation for his businesses. Just as in Burnett, the tax depreciation report revealed the
total depreciation; here the total was $340,653. The report also documented the “Method” used for
depreciation, which included the use of “DB” or “Declining Balance” methods, which are
accelerated depreciation methods. Of the total deductions, over $300,000 used the “Declining
Balance” accelerated depreciation method. There was no finding by the trial court that any of the
businesses’ accelerated depreciation was inappropriate or excessive; nor was any evidence
submitted before the trial court that any administrative proceeding made such finding. As such,
the accelerated depreciation amounts must be excluded from Brent’s income calculation under
section 505.
¶ 63 The remaining nonaccelerated depreciation must also be considered. In this regard,
“[a]ssuming no other aspect of the statute prohibits a particular type of deduction, the trial court
can now review each case and in its discretion determine whether a deducted expense is one which
is ‘ordinary and necessary *** to carry on the trade or business.’ ” Id. ¶ 144. The requirement to
prove the deducted nonaccelerated expense was repayment for debt has been eliminated. Id.
¶ 64 Regarding Brent’s living expenses, we do not find Kristi’s alternative argument persuasive.
Brent testified that his affidavit included his half of the business distributions which included his
mortgage ($656.43), electric bill ($280.89), repairs and maintenance ($125), and license and
stickers ($142.50), which equates to $1204.82 in section 505(a)(3.1)(B) in-kind income. Brent also
testified that the business pays 100% of his cell phone ($36.17), his gas ($246.99), his vehicle
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($475.56), and his health insurance ($1618.21), which equates to an additional $2376.93 in section
505(a)(3.1)(B) in-kind income for a total of $3581.75.
¶ 65 Brent’s testimony was consistent with his affidavit that revealed $2613.87 in business
distribution and draws, and $1618.21 for his health insurance which equated to $4232.08, an
amount slightly higher than his testimony, that was added to his $3117.50 in regular earnings and
$135.42 in rental income to determine his gross monthly income of $7485.
¶ 66 The remaining “expenses” claimed by Kristi consist of Brent’s vacation, his wife’s medical
bills, his wife’s personal expenses for clothing and grooming, the money used to purchase Kristi’s
stock, and the mortgage, property tax, and insurance related to the 113 acres. Contrary to Kristi’s
argument, the record reveals no testimony, or evidence, that any of the Britton businesses paid any
portion of Brent’s vacation, his wife’s medical bills, his wife’s personal expenses, or purchased
Kristi’s stock. As such, Brent’s spending habits are irrelevant and of no merit. Liszka, 2016 IL App
(3d) 150238, ¶ 46.
¶ 67 Only Kristi’s claim regarding the monthly expenses associated with the 113 acres has merit
because this would also be section 505(a)(3.1)(B) in-kind income. We note, however, that Kristi’s
closing argument requested the trial court impute $257 to Brent’s monthly gross income, stating
his use of the 23 acres accounted for 20% of the $1285 monthly payment. On appeal, Kristi now
contends that the entire $1285 monthly payment should be imputed to Brent. “A party cannot invite
an error by the trial court and then use it as a basis for appeal.” Direct Auto Insurance Co., 2019
IL App (1st) 172918, ¶ 36.
¶ 68 Here, it appears the trial court may have been persuaded by Kristi’s erroneous arguments
related to accelerated depreciation and Brent’s spending habits. As such we find the trial court’s
determination that Brent’s gross monthly income was $14,529 was in error and vacate the finding.
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On remand, the trial court must determine which business deductions were accelerated, remove
them from consideration, and then determine from the nonaccelerated depreciation which amounts
were reasonable and necessary to carry on the business. Any amount the trial court finds does not
meet the reasonableness and necessary standard may be imputed to Brent’s income, at the court’s
discretion. We also leave it to the trial court’s discretion to determine whether it wishes to impute
the $257 related to the 113 acres pursuant to section 505(a)(3.1)(B) to Brent’s gross monthly
income of $7485.
¶ 69 Kristi’s Income
¶ 70 Brent argues that the trial court’s finding that Kristi’s income should not include the money
received from her sale of Britton stock after finding this case was “more in the nature of shares of
stock capable of being sold (In re Marriage of Marsh, 2013 IL App (2d) 130423), rather than
unvested stock options (In re Marriage of Colangelo, 355 Ill. App. 3d 383 (2005)).” Brent
contends that the trial court’s interpretation of Marsh was in error because, in that case, there was
no “evidence or testimony that the sale yielded no profit or was otherwise sold at a loss.”
¶ 71 While Brent contends the trial court’s decision was in error, Brent has not provided an
adequate record for this court to address the issue. The trial court’s June 16, 2020, docket entry
reveals that arguments as to whether Kristi’s income should include money from the sale of the
stock were presented to the trial court on that date; however, no report of proceedings regarding
this issue was included in the record on appeal. The appellant has the duty of presenting a complete
record on appeal. In re Marriage of Naylor, 220 Ill. App. 3d 366, 370 (1991). The record on appeal
shall consist of “the judgment appealed from, the notice of appeal, *** the entire original common
law record,” and “any report of proceedings.” Ill. S. Ct. R. 321 (eff. Feb. 1, 1994). “Where a party
desires to have a judgment reviewed it is incumbent upon him to present a record of the
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proceedings and judgments sufficient to show the errors of which he complains.” Higgins v.
Columbia Tool Steel Co., 76 Ill. App. 3d 769, 776 (1979).
¶ 72 Here, Brent contends that the agreement to sell the stock was “tendered to the Court and
entered into evidence” but provides no cite to the record as to the location of this document
contained within the 809 pages of exhibits or 482 pages comprising the common law record. Brent
further contends that there “was no testimony as to the amount considered as the basis for the value
of the stock and what she sold it for,” but the record fails to include the record of proceedings from
the date of the argument or whether the trial court provided a rationale as to why this information
may not have been necessary. In the absence of a sufficient record, “it will be presumed that the
order entered by the trial court was in conformity with law and had a sufficient factual basis.”
Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). “Any doubts which may arise from the
incompleteness of the record will be resolved against the appellant.” Id. As such we affirm the trial
court’s ruling.
¶ 73 Child Support and Arrearage
¶ 74 Since the trial court’s determination of Brent’s gross monthly incomes was in error, we
vacate its determinations for child support and arrearage. We remand the case back to the trial
court to recalculate the appropriate child support and arrearage after determining the proper
amount to impute to Brent’s monthly gross income based with the nonaccelerated business
deductions and whether it wishes to impute the $257 related to the 113 acres as in-kind income.
¶ 75 III. CONCLUSION
¶ 76 For the reasons stated herein, we vacate the trial court’s orders requiring Brent to reimburse
Kristi for her supplemental health insurance back to January 2018 pursuant to a rule to show cause
hearing, affirm the trial court’s order modifying the obligation to provide the children’s health
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insurance, vacate the trial court’s order making the educational expenses retroactive to a date prior
to the filing of the petition, affirm the trial court’s decision to impute income to Brent, vacate the
trial court’s calculation of Brent’s gross and net income, affirm the trial court’s finding that Kristi’s
sale of stock should not be included in her net income, vacate the trial court’s orders regarding the
amount of child support and arrearage due in this case, and remand the case to address the issues
set forth herein in a manner consistent with this decision.
¶ 77 Affirmed in part and vacated in part; cause remanded.
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______________________________________________________________________________
No. 5-21-0065
______________________________________________________________________________
Rule 23 Order Filed: January 27, 2022
Motion to Publish Granted: February 24, 2022
Opinion Filed: February 24, 2022
______________________________________________________________________________
Cite as: In re MARRIAGE OF BRITTON, 2022 IL App (5th)
210065______________________________________________________________________________
Decision Under Review: Appeal from the Circuit Court of Williamson County,
No. 12-D-183; the Hon. Carey C. Gill, presiding.
______________________________________________________________________________
Attorneys David M. Gotzh, Law Office of David Gotzh, 444 N.
For Michigan Ave., Suite 1200, Chicago, IL 60610
Appellants:
______________________________________________________________________________
Attorney Gerald S. Reed, Reed, Heller & Cannell, 1100 Walnut, P.O.
For Box 727, Murphysboro, IL 62966
Appellees:
______________________________________________________________________________
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