In re Marriage of Turk

2014 IL 116730
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116730)
In re MARRIAGE OF IRIS TURK, Appellee, and STEVEN TURK, Appellant.
Opinion filed June 19, 2014.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Kilbride, and Burke concurred in the
judgment and opinion.
Justice Theis specially concurred, with opinion, joined by Justice Thomas.
OPINION
¶1 The issues in this case are (1) whether section 505 of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/505 (West 2012)) permits a trial court to
award child support to a noncustodial parent and (2) if so, whether the circuit court
abused its discretion when it awarded $600 per month in child support to the
noncustodial parent here in addition to requiring the custodial parent to pay additional
medical and dental expenses for the children. The appellate court held that trial courts
do have authority under the statute to order custodial parents to pay child support and
found no abuse of discretion in the trial court’s decision to increase the amount of
medical and dental expenses the custodial parent in this case was required to pay. It
concluded, however, that the record did not support the $600 per month child support
award. It therefore reversed that portion of the trial court’s judgment and remanded for
an evidentiary hearing with instructions for the trial judge “to clearly explain the basis
for any support awarded, as required by section 505 ***.” For the reasons that follow,
we affirm in part and reverse in part and remand to the circuit court.
¶2 BACKGROUND
¶3 Iris and Steven Turk were married in October of 1993 and have two sons,
Nathaniel, born in 1997, and Jacob, born in 1999. In 2004, Iris filed a petition in the
circuit court of Cook County seeking dissolution of the marriage, division of the
property, sole custody of the boys, and an award of maintenance and child support.
Steven, in turn, filed a counter petition for dissolution requesting, among other things,
that the award of custody be joint.
¶4 Following various developments not relevant here, the court entered an agreed
judgment dissolving the marriage. Among the provisions of the judgment, filed July
25, 2005, was that Steven would pay Iris $4,000 per month in unallocated maintenance
and child support for 42 months, that the parties would have joint custody of the
children, that the children would reside with Iris, and that Steven would provide the
medical insurance for the children and cover 50% of their out-of-pocket medical and
dental costs.
¶5 Over the years, Steven and Iris frequently returned to court to contest matters
related to the custody and education of the children. Eventually, in October of 2010, the
court granted temporary physical custody of the two boys to Steven, limited Iris to
supervised visitation, and made a one-time reduction in the amount Steven was then
paying for child support.
¶6 Shortly after being awarded physical custody and enrolling the boys in a school in
his district, Steven filed a petition pursuant to section 510 of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/510 (West 2012)) asking that his obligation
to pay child support to Iris be terminated completely. That petition was granted in part
and denied in part pursuant to an agreed order under which Steven was required to pay
$700 per month “based upon the current parenting schedule.”
¶7 Although the order was agreed upon, it did not end the litigation. Steven
subsequently asked the court to order Iris to pay child support to him. Iris, in turn,
sought to have Steven held in contempt based on “visitation abuse.” Steven then moved
to temporarily terminate the $700 per month child support obligations on the grounds
that Jacob, who by this time was the only child still visiting Iris, was enrolled in a
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residential summer camp paid for by Steven, eliminating any child care expenses Iris
might otherwise have had.
¶8 On July 28, 2012, the circuit court entered an agreed “custody judgment and
parenting order” which specified that Steven was to have “the sole care, custody,
control and education” of the boys and gave him authority to make “[m]ajor decisions
in connection with [their] education, health, care and religious training,” subject to
various conditions involving communication and cooperation. Iris was granted regular
visitation with Nathan once a week, for dinner on Wednesdays. Her regular visitation
with Jacob was substantially longer, with weekly visits from Monday to Wednesday
mornings, plus alternating weekends, a system which gave her nearly equal time with
him. In addition, a separate schedule was set up to insure that each parent would have
equal time with both boys during holidays, spring break and summer vacations.
¶9 When the court signed the foregoing agreed order, it also entered a separate order
disposing of Steven’s remaining request to completely terminate his obligation to make
child support payments to Iris. Based upon the provisions of the agreed order and a
determination that Steven earned approximately $150,000 per year while Iris’ earnings
were less than $10,000 per year, the court ordered Steven to pay Iris child support of
$600 per month and made him “solely responsible for all uncovered medical, dental,
orthodontia, psychological and optical expenses for the children.”
¶ 10 Steven appealed, arguing that because he has been designated as the custodial
parent, the circuit court had no authority under section 505 of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/505 (West 2012)) to order him to pay child
support to Iris, a noncustodial parent. Steven further contended that even if the circuit
court did have statutory authority to order him to make child support payments, it
abused its discretion in ordering him to pay the support it did.
¶ 11 As noted at the outset of this opinion, the appellate court rejected the contention
that section 505 does not authorize a circuit court to order custodial parents to pay child
support to noncustodial parents. 2013 IL App (1st) 122486, ¶ 42. The appellate court
further concluded that the circuit court did not abuse its discretion in ordering Steven to
pay child support and the full amount of the children’s health care expenses not
covered by insurance. Id. ¶¶ 49-50. It held, however, that the particular amount of
support ordered in this case, $600 per month, was not supported by the record. It
therefore reversed and remanded for an evidentiary hearing to determine “what monies
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Iris pays when she has visitation with the children,” and directed the circuit court “to
clearly explain the basis for any support awarded, as required by section 505.” Id. ¶ 48.
¶ 12 Steven filed a petition for leave to appeal from the appellate court’s judgment. Ill.
S. Ct. R. 315 (eff. July 1, 2013). His primary argument is that the appellate court’s
interpretation of section 505 of the Illinois Marriage and Dissolution of Marriage Act is
novel, unsupported by the language of the statute itself and contrary to the Fifth District
Appellate Court’s decision in Shoff v. Shoff, 179 Ill. App. 3d 178 (1989). We granted
Steven’s petition.
¶ 13 ANALYSIS
¶ 14 In Illinois, the support of a child is the joint and several obligation of both the
husband and the wife. In re Marriage of Schuster, 224 Ill. App. 3d 958, 974 (1992). If
the couple’s marriage dissolves, the court may apportion child support obligations
between them. The standards governing court-awarded child support are set forth in
section 505 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505
(West 2012)). As we have just indicated, Steven’s principal challenge to the appellate
court’s decision is that it misconstrued the provisions of section 505 when it concluded
that he could be required to pay child support. Statutory construction is a question of
law. Our review of this issue is therefore de novo. In re Estate of Wilson, 238 Ill. 2d
519, 552 (2010).
¶ 15 The cardinal rule of statutory construction is to ascertain and give effect to the
intent of the legislature. The best evidence of legislative intent is the language used in
the statute itself, which must be given its plain and ordinary meaning. Lulay v. Lulay,
193 Ill. 2d 455, 466 (2000). When the language of the statute is clear, it must be applied
as written without resort to aids or tools of interpretation. JPMorgan Chase Bank, N.A.
v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010).
¶ 16 Steven interprets section 505 to mean that the obligation to pay child support may
be imposed only on noncustodial parents and that a custodial parent may never be
ordered to pay child support to a noncustodial parent. The terms of the statute do not
support such a view. In contrast to the child support laws of some states which single
out noncustodial parents for payment of child support (see, e.g., Rubin v. Salla, 964
N.Y.S.2d 41, 47 (N.Y. App. Div. 2013) (applying New York law); Daigrepont v.
Daigrepont, 458 So. 2d 637, 638-39 (La. Ct. App. 1984) (applying the law of
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Louisiana)), section 505 expressly confers on courts the option to “order either or both
parents owing a duty of support to a child of the marriage to pay an amount reasonable
and necessary for the support of the child, without regard to marital misconduct.”
(Emphasis added.) 750 ILCS 5/505(a) (West 2012). The statute further provides that in
addition to support, the court may, in its discretion, “order either or both parents owing
a duty of support to a child of the marriage to contribute to [various] expenses, if
determined by the court to be reasonable,” including health needs not covered by
insurance. (Emphasis added.) 750 ILCS 5/505(a)(2.5) (West 2012).
¶ 17 That Illinois law does not confine the obligation to pay child support to
noncustodial parents is further supported by the statutory guidelines for determining
the amount of child support a parent is obligated to pay. In fashioning those guidelines,
the General Assembly established as a starting point a percentage formula based on the
number of children to be supported and the supporting party’s net income. 750 ILCS
5/505(a)(1) (West 2012).
¶ 18 By law, a court is required to apply this formula unless it determines that deviation
from it is appropriate. In setting forth the relevant factors a court should take into
account in making that determination, the General Assembly spoke broadly. It stated
that courts should be guided by:
“the best interest of the child in light of the evidence, including, but not limited
to, one or more of the following relevant factors:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the
marriage not been dissolved;
(d) the physical, mental, and emotional needs of the child;
(d-5) the educational needs of the child; and
(e) the financial resources and needs of the non-custodial parent.”
750 ILCS 5/505(a)(2) (West 2012).
Nothing in this nonexclusive list of factors makes custody dispositive. Rather, the
statute makes clear that a range of considerations may affect the court’s assessment,
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including the means, needs and capacity to produce income of both parents, custodial
and noncustodial alike, with ultimate objective of serving the best interest of the child.
¶ 19 Although four subsequent subsections of section 505 include provisions which
apply specifically to noncustodial parents, those subsections do not support Steven’s
view that custodial parents are categorically exempt from having to pay child support.
The subsections in question are (a)(6), (b), (d), and (f). 705 ILCS 5/505(a)(6), (b), (d),
(f) (West 2012). Subsection (a)(6) states:
“If (i) the non-custodial parent was properly served with a request for discovery
of financial information relating to the non-custodial parent’s ability to provide
child support, (ii) the non-custodial parent failed to comply with the request,
despite having been ordered to do so by the court, and (iii) the non-custodial
parent is not present at the hearing to determine support despite having received
proper notice, then any relevant financial information concerning the
non-custodial parent’s ability to provide child support that was obtained
pursuant to subpoena and proper notice shall be admitted into evidence without
the need to establish any further foundation for its admission.” 750 ILCS
5/505(a)(6) (West 2012).
¶ 20 Subsection (b) provides, in part:
“If there is a unity of interest and ownership sufficient to render no financial
separation between a non-custodial parent and another person or persons or
business entity, the court may pierce the ownership veil of the person, persons,
or business entity to discover assets of the non-custodial parent held in the name
of that person, those persons, or that business entity. The following
circumstances are sufficient to authorize a court to order discovery of the assets
of a person, persons, or business entity and to compel the application of any
discovered assets toward payment on the judgment for support:
(1) the non-custodial parent and the person, persons, or business
entity maintain records together.
(2) the non-custodial parent and the person, persons, or business
entity fail to maintain an arm’s length relationship between themselves with
regard to any assets.
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(3) the non-custodial parent transfers assets to the person, persons,
or business entity with the intent to perpetrate a fraud on the custodial
parent.” 750 ILCS 5/505(b) (West 2012).
¶ 21 According to subsection (d),
“(d) Any new or existing support order entered by the court under this
Section shall be deemed to be a series of judgments against the person obligated
to pay support thereunder, each such judgment to be in the amount of each
payment or installment of support and each such judgment to be deemed
entered as of the date the corresponding payment or installment becomes due
under the terms of the support order. Each such judgment shall have the full
force, effect and attributes of any other judgment of this State, including the
ability to be enforced. Notwithstanding any other State or local law to the
contrary, a lien arises by operation of law against the real and personal property
of the noncustodial parent for each installment of overdue support owed by the
noncustodial parent.” 750 ILCS 5/505(d) (West 2012).
¶ 22 Finally, subsection (f) provides:
“(f) All orders for support, when entered or modified, shall include a
provision requiring the obligor to notify the court and, in cases in which a party
is receiving child and spouse services under Article X of the Illinois Public Aid
Code, the Department of Healthcare and Family Services, within 7 days, (i) of
the name and address of any new employer of the obligor, (ii) whether the
obligor has access to health insurance coverage through the employer or other
group coverage and, if so, the policy name and number and the names of
persons covered under the policy, and (iii) of any new residential or mailing
address or telephone number of the non-custodial parent. In any subsequent
action to enforce a support order, upon a sufficient showing that a diligent effort
has been made to ascertain the location of the non-custodial parent, service of
process or provision of notice necessary in the case may be made at the last
known address of the non-custodial parent in any manner expressly provided by
the Code of Civil Procedure or this Act, which service shall be sufficient for
purposes of due process.” 750 ILCS 5/505(f) (West 2012).
¶ 23 While these four subsections do include specific provisions addressed solely to
noncustodial parents, nothing therein exempts or evinces an intention by the General
Assembly to exempt custodial parents from having to pay child support. Rather, they
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are based on the recognition that noncustodial parents have temptations and
opportunities to avoid support obligations that custodial parents do not. Where
noncustodial parents are singled out in these four particular subsections it is because
the specific problems addressed therein—identifying the parent’s resources, insuring
that the parent pays the support he or she owes, and keeping track of the parent’s
whereabouts—are likely to be considerably more difficult when the parent does not
have actual custody of the child; is not confronted with the immediate, daily challenge
of insuring that the child is properly fed, housed, clothed and educated; and does not
risk having the child removed from the home if adequate care is not provided. In other
words, subsections (a)(6), (b), (d), and (f) simply address the heightened difficulties in
insuring that noncustodial parents fulfill their child support obligations. In no way do
they suggest that the obligation to pay child support may never be extended to custodial
parents.
¶ 24 Sometimes, as under the agreed custody judgment entered in this case, a parent who
is technically noncustodial may have visitation rights which place the child in that
parent’s care for periods that rival those of the custodial parent and at commensurate
cost. If Steven were correct and status as the custodial parent automatically precluded
one from having to make any child support payments to the other parent, the
noncustodial parent could end up having to pay a significant portion of the costs of
raising the child without any regard to that parent’s financial resources and needs or
how they compared to the financial resources and needs of the custodial parent. That
may not be problematic where the noncustodial parent happens to be the wealthier of
the two, but where, as here, the noncustodial parent appears to have significantly fewer
resources to meet the substantial support costs which are sure to arise from the
extensive visitation schedule, disqualifying the poorer parent from obtaining any
financial assistance for child care from the wealthier parent based solely on the poorer
parent’s classification as noncustodial would not only place an unfair burden on the
poorer parent, it could also leave that parent with insufficient resources to care for the
child in a manner even minimally comparable to that of the wealthier parent.
¶ 25 Section 505(a) was intended to protect the rights of children to be supported by
their parents in an amount commensurate with the parents’ income. In re Paternity of
Perry, 260 Ill. App. 3d 374, 382 (1994). Under Steven’s approach, a child could well
end up living commensurate with the parents’ income only half the time, when he or
she was staying with the wealthier parent. If custodial parents were categorically
exempt from child support obligations, the wealthier parent’s resources would be
beyond the court’s consideration and reach even though the visitation schedule resulted
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in the child actually residing with the poorer parent for a substantial period each week.
This could be detrimental to the child psychologically as well as economically, for the
instability resulting from having to “live a dual life in order to conform to the differing
socio-economic classes of his or her parents” may cause the child to experience distress
or other damaging emotional responses. Laura Raatjes, High-Income Child Support
Guidelines: Harmonizing the Need for Limits With the Best Interests of the Child, 86
Chi.-Kent L. Rev. 317, 318-19 (2011). Such an outcome would plainly not serve the
child’s best interest. Steven’s approach therefore undermines rather than advances the
purposes of the law.
¶ 26 That custodial parents may be required to pay child support to noncustodial parents
where circumstances warrant it has long been recognized by the courts. Elble v. Elble,
100 Ill. App. 2d 221 (1968), decided over 40 years ago, is a case in point. There, the
father had custody of the child, but the child preferred to live with the mother and did.
On a petition for modification, the circuit court refused to change custody to the
mother, but ordered the father, who was the custodial parent, to pay $100 per month in
child support for the duration of the child’s minority. The appellate court affirmed,
holding that the language of the version of the statute then in effect was broad enough
to authorize the trial judge’s order. Id. at 226.
¶ 27 To the same effect is In re Marriage of Cesaretti, 203 Ill. App. 3d 347 (1990).
Applying the current version of the statute, the appellate court in that case rejected the
father’s contention that once legal and physical custody is placed in one parent, that
custodial parent has no obligation to pay child support to the noncustodial parent. Id. at
356. Taking into account the parents’ relative financial circumstances and the amount
of time the child would be spending with each parent, the appellate court upheld the
circuit court’s order requiring the father to pay $75 per week in child support
notwithstanding the fact that temporary custody of the child had been awarded to him.
¶ 28 In Shoff v. Shoff, 179 Ill. App. 3d 178, 186 (1989), the Fifth District Appellate
Court did uphold a circuit court’s ruling that a parent was no longer required to pay
child support once that parent obtained legal and physical custody of the child. It
reached this conclusion, however, based not on the language of the statute, but as a
matter of equity, fairness and common sense given that the parent who had obtained
custody was directly providing for all of a child’s financial needs. Id. at 186-87. The
case is therefore of no aid to Steven.
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¶ 29 The Supreme Court of Georgia recently had occasion to consider arguments similar
to those asserted by Steven, and it reached the same conclusions we have here. In that
case, Williamson v. Williamson, 748 S.E.2d 679 (Ga. 2013), the father who constituted
the custodial parent under Georgia law, was ordered to pay child support to the mother,
who was the noncustodial parent. The father objected to the support order on the
grounds that “the very idea of a custodial parent paying support to a noncustodial
parent defies logic.” Id. at 681. In rejecting that argument, the court held: (1) that (as in
Illinois) the legislature did not specify that only noncustodial parents are to pay child
support, (2) that under the law, the touchstone for determining child support is the best
interest of the children, (3) that child support is meant in part to insure that, to the extent
possible, children of unmarried parents enjoy the same economic standard of living
enjoyed by children living in intact families consisting of parents with similar financial
means, and (4) that where the noncustodial parent remains responsible under the final
order for supporting the children a substantial portion of the time and the noncustodial
parent has significantly lower income than the custodial parent, the foregoing goal may
best be achieved by requiring the custodial parent to pay child support to the
noncustodial parent. Id. at 681-82.
¶ 30 Other jurisdictions have likewise recognized that custodial parents may be required
to pay child support to noncustodial parents. In Grant v. Hager, 868 N.E.2d 801, 804
(Ind. 2007) for example, the Supreme Court of Indiana held that a trial court may order
a custodial parent to pay child support to a noncustodial parent based on their
respective incomes and parenting time arrangements if the court concludes that it
would be unjust not to do so and makes the written findings mandated by Indiana law.
Similarly, in Colonna v. Colonna, 855 A.2d 648 (Pa. 2004), the Supreme Court of
Pennsylvania recognized that where the parent who does not have primary custody has
a less significant income than the custodial parent, it is likely that he or she will not be
able to provide an environment that resembles the one in which the children are
accustomed to living with the custodial parent. “While a downward adjustment in
lifestyle is a frequent consequence of divorce that affects both adults and children,” the
court observed,
“we would be remiss in failing to ignore the reality of what happens when
children are required to live vastly different lives depending upon which parent
has custody on any given day. To expect that quality of the contact between the
non-custodial parent and the children will not be negatively impacted by that
parent’s comparative penury vis-à-vis the custodial parent is not realistic.
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Issuing a support order that allows such a situation to exist clearly is not in the
best interests of the children.
Therefore, where the incomes of the parents differ significantly, we believe
that it is an abuse of discretion for the trial court to fail to consider whether
deviating from the support guidelines is appropriate, even in cases where the
result would be to order child support for a parent who is not the primary
custodial parent.” Id. at 651-52.
¶ 31 While obviously not binding on our court, we believe that the foregoing authorities
are consistent with the principles set forth in section 505 of the Illinois Marriage and
Dissolution of Marriage Act and further support our conclusion that under section 505,
a trial court may order the custodial parent to pay child support to the noncustodial
parent where circumstances and the best interest of the child warrant it.
¶ 32 The concern has been expressed that if we sanction awards of child support to
noncustodial parents, we open the door to abuse by spouses who will use requests for
modification of child support as a subterfuge for obtaining additional maintenance. We
note, however, that the criteria for awarding and modifying child support are clearly set
out in the statute. See 750 ILCS 5/505, 510 (West 2012). If those criteria are applied
properly by the lower courts, and we must assume they will be, any abuse should be
preventable. Moreover, and in any case, speculation of this kind cannot justify failing
to follow the statute as written. By its terms, section 505(a) does not restrict child
support obligations to noncustodial parents. It is axiomatic that we may not depart from
a statute’s plain language by reading into the law exceptions, limitations, or conditions
that the legislature did not express (Schultz v. Illinois Farmers Insurance Co., 237 Ill.
2d 391, 408 (2010)), nor may we rewrite the law to make it consistent with our own
idea of orderliness and public policy (id. at 406). Establishing the criteria governing
child support obligations following dissolution of marriage is a matter for the
legislature. As this court previously held when addressing another issue related to
marriage dissolution, “if there is to be a change in the law of this State on this matter, it
is for the legislature and not the courts to bring about that change.” Mogged v. Mogged,
55 Ill. 2d 221, 225 (1973).
¶ 33 Steven next argues that even if a circuit court does have the authority to order a
custodial parent to pay child support to a noncustodial parent, the circuit court in this
case “abused its discretion when it arbitrarily ordered [him] to pay Iris $600 per month
in addition to him paying all uncovered medical expenses.” This argument is not
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properly before us. As Iris correctly points out, the appellate court reversed the portion
of the circuit court’s judgment which ordered Steven to pay her child support and
remanded the cause to the circuit court for an evidentiary hearing, with directions for
the court to “clearly explain the basis for any support awarded.” 2013 IL App (1st)
122486, ¶ 48. Having prevailed on this point in the appellate court, there is no need (or
legal basis) for Steven to pursue it again in our court. We cannot do more for him than
the appellate court has already done.
¶ 34 Iris, for her part, makes a cursory claim that the $600 per month child support
award should have been allowed to stand without remand, but she has not cited and we
have not found any authority that would persuade us that reversal and remand was
erroneous under the circumstances of this case. How much child support, if any, Steven
should be required to pay will be revisited by the parties when the matter returns to the
circuit court for further hearing. If the parties take issue with the circuit court’s new
determination, they may seek additional review at that time.
¶ 35 Finally, Steven contends that the circuit court abused its discretion when it
modified his support obligations to require him to pay the full amount of any medical,
dental, orthodontic, psychological, and optical expenses for the children that are not
covered by insurance. Although the appellate court allowed this portion of the circuit
court’s judgment to stand, we believe it erred in doing so. Allocation of the obligation
to pay the medical and dental expenses of minor children is inextricably linked to the
determination of how much monetary support each parent should contribute toward the
children’s care. Both require assessment of the parents’ respective financial
circumstances. They cannot be considered in isolation. When the appellate court
reversed the portion of the judgment ordering Steven to pay $600 per month in child
support and remanded for further proceedings on that issue, it should therefore have
done the same with respect to the portion of the circuit court’s judgment dealing with
medical and dental costs.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, we affirm that portion of the appellate court’s judgment
which upheld the authority of the circuit court to order Steven to pay child support and
remanded to the circuit court for an evidentiary hearing regarding the amount of child
support Steven should be required to pay. We reverse that portion of the appellate
court’s judgment which upheld the circuit court’s modification of the support order
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requiring Steven to pay the full amount of any of the children’s medical and dental
expenses not covered by insurance. On remand, the circuit court is directed to revisit
that question when it reconsiders Steven’s child support obligations.
¶ 38 Appellate court judgment affirmed in part and reversed in part.
¶ 39 Circuit court judgment reversed.
¶ 40 Cause remanded with directions.
¶ 41 JUSTICE THEIS, specially concurring:
¶ 42 I agree with the majority that section 505 of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/505 (West 2012)) does not preclude a trial court from
ordering the custodial parent to pay child support to the noncustodial parent. Supra
¶ 31. I write separately, however, because the majority’s analysis is, at best,
incomplete, and at worst, misleading as to how section 505 operates. As discussed
below, the legislature intended the guidelines, set forth in section 505(a)(1) (750 ILCS
5/505(a)(1) (West 2012)), to be the starting point in each case for a child support award,
and that starting point requires the trial court to presume, as an initial matter, that the
noncustodial parent will pay support to the custodial parent. An analysis of how the
statutory guidelines operate is both relevant to Steven’s argument that the statute does
not permit a court to order the custodial parent to pay child support to the noncustodial
parent, and essential to providing appropriate guidance to the trial court on remand.
The majority’s silence on this matter gives tacit approval to the procedure utilized by
the trial court, i.e., simply applying the statutory guidelines to the income of the
wealthier parent. This is not, however, an appropriate application of the guidelines, and
undermines the legislative goal of consistency in child support awards, as well as the
rule of law that child support is the obligation of both parents. Because the majority
opinion fails to consider the issues fully, I do so now.
¶ 43 ANALYSIS
¶ 44 Section 505 of the Act sets forth a specific procedure trial courts must follow in
determining a parent’s child support obligation. Pursuant to section 505(a)(1), the trial
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court “shall determine the minimum amount of support by using the [statutory]
guidelines.” 750 ILCS 5/505(a)(1) (West 2012). Section 505(a)(2) highlights the
importance of the statutory guidelines, stating that they “shall be applied in each case
unless the court finds that a deviation from the guidelines is appropriate,” based on the
best interest of the child in light of various factors. (Emphases added.) 750 ILCS
5/505(a)(2) (West 2012). “If the court deviates from the guidelines, the court’s finding
shall state the amount of support that would have been required under the guidelines.”
Id. Under this statutory scheme, a trial court’s award of child support begins, in each
case, with the statutory guidelines. In re Marriage of Stanley, 279 Ill. App. 3d 1083,
1085 (1996).
¶ 45 The current guidelines, in section 505(a)(1) of the Act, provide as follows:
“Number of Children Percent of Supporting
Party’s Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%”
¶ 46 Under these guidelines, a trial court determines the minimum support obligation by
identifying the number of children, and then calculating the corresponding percentage
of the supporting party’s net income. The majority acknowledges that the General
Assembly established this formula as a starting point in the child support calculation,
but fails to explain how the formula should be applied. Supra ¶ 17. The trial court in the
instant case applied the statutory percentage to the parent with the greater income—the
custodial father. The legislature, however, did not intend the guidelines to operate in
this fashion. As our appellate court has long recognized, the statutory child support
guidelines create a “rebuttable presumption that a specified percentage of a
noncustodial parent’s income constitutes an appropriate child-support award.”
(Emphasis added.) In re Marriage of Blaisdell, 142 Ill. App. 3d 1034, 1045 (1986).
Accord In re Marriage of Freesen, 275 Ill. App. 3d 97, 105 (1995); In re Marriage of
Sweet, 316 Ill. App. 3d 101, 108 (2000); Anderson v. Heckman, 343 Ill. App. 3d 449,
453 (2003); In re Marriage of Berberet, 2012 IL App (4th) 110749, ¶ 37. See also
Blisset v. Blisset, 123 Ill. 2d 161, 172 (1988) (stating, in dicta, that the guidelines
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“determine what percentage of a noncustodial parent’s income should be used for child
support”).
¶ 47 The Blaisdell decision, entered less than two years after the General Assembly first
adopted child support guidelines, is instructive. In Blaisdell, the appellate court
considered several constitutional challenges to the statutory guidelines adopted in 1984
(Pub. Act 83-1404 (eff. Sept. 12, 1984)). Although the guidelines have been modified
and refined since the Blaisdell decision, the salient features have remained the same.
Like the present guidelines, the 1984 guidelines required the trial court to determine the
minimum amount of support based on the number of children and a percentage of net
income. Pub. Act 83-1404, § 2 (eff. Sept. 12, 1984). Similar to the current statute, the
1984 guidelines were “binding in each case unless the court makes express findings of
fact as to the reason for departure below the guidelines.” Id. Thus, the appellate court’s
observations in Blaisdell regarding the manner in which the guidelines operate are still
relevant today.
¶ 48 Blaisdell explained that the statutory guidelines did not remove judicial discretion
from the setting of child support awards, but rather provided a “place to begin an
analysis” (Blaisdell, 142 Ill. App. 3d at 1040), i.e., a “starting point in the support
award determination” (id. at 1045). The appellate court elaborated:
“The guidelines legislation has, in reality, shifted the burden of presenting
evidence in a child-support hearing to the parent who wishes to shift the
noncustodial parent’s contribution below or above the specified percentages.
And the legislation has established standards for the court to follow in deviating
from those percentages.” Id. at 1041.
The appellate court reiterated that the guidelines “merely structure, subject to court
adjustment, the noncustodial parent’s contribution in an effort to shift some of the
burden of care and support from the custodial parent.” Id. at 1047.
¶ 49 Blaisdell also considered the origins of the statutory guidelines, noting that they
were modelled after guidelines utilized by the judges in the domestic relations division
of the Cook County circuit court. Id. at 1040 (quoting 83d Ill. Gen. Assem., House
Proceedings, May 17, 1984, at 193 (statements of Representative Vinson)). Under the
Cook County guidelines, the support obligation was determined based on the number
of children, and a percentage of the income of the noncustodial parent. Id. at 1038-39
(quoting the Cook County circuit court’s “Guidelines for Support and Maintenance
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Orders”).1 As observed in Blaisdell, the legislature’s adoption of substantially similar
guidelines for determining a parent’s minimum support obligation “codified the
procedure that was functioning successfully in the circuit court of Cook County.” Id. at
1040.
¶ 50 Generally, child support guidelines serve two important functions: (1) they
promote uniformity which, in turn, encourages settlement, and (2) they ensure the
adequacy of child support orders. See Kenneth F. Levin, The Use (And Abuse) of Child
Support Schedules in Illinois, 71 Ill. B.J. 314 (1983) (observing that child support
guidelines provide benchmarks for attorneys to use as a tool to encourage reasonable
settlement, and a uniform comparative basis for the judiciary “to permit a smoothing
out of the curve of disparate results”); Linda Henry Elrod, The Federalization of Child
Support Guidelines, 6 J. Am. Acad. Matrim. Law 103, 111 (1990) (observing that,
when Congress passed the Child Support Enforcement Amendments of 1984 requiring
states receiving monies under federal welfare programs to adopt child support
guidelines, the major problems that existed nationally were that “child support awards
were inadequate to cover the actual costs of raising a child,” and “child support orders
varied drastically for no apparent reason”).
¶ 51 Illinois’s child support guidelines serve similar functions. The Cook County
guidelines, on which the statutory guidelines were based, were adopted “ ‘in an attempt
to gain uniformity in support orders and promote amicable settlements.’ ” Blaisdell,
142 Ill. App. 3d at 1038-39 (quoting the Cook County circuit court’s “Guidelines for
Support and Maintenance Orders”). The appellate court in Blaisdell likewise
concluded that the statutory guidelines were intended to “standardize” child support
orders, and “increase child support in light of comprehensive studies showing
inadequate awards.” Id. at 1047. The legislative history of the statutory guidelines
supports the appellate court’s conclusions. See 83d Ill. Gen. Assem., House
Proceedings, May 17, 1984, at 193-94, 204 (statements of Representative Vinson,
explaining that the guidelines establish standards that will provide more certain and
adequate child support payments).
1
Although the Cook County guidelines assumed that, typically, the “husband” was the noncustodial
parent, the guidelines instructed that the term “wife” should be substituted for “husband” if the wife was
the noncustodial parent. Kenneth F. Levin, The Use (And Abuse) of Child Support Schedules in Illinois,
71 Ill. B.J. 314, 330 (1983) (setting forth, in full, Cook County “Guidelines for Support and Maintenance
Orders”).
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¶ 52 If the dual purpose of the statutory guidelines—to promote uniformity and
adequacy of awards—is to be realized, then the guidelines must be applied consistently
from case to case. The guidelines are, as explained above, the starting point for
determining child support, and that starting point must be fixed. The trial court cannot
begin the award calculation in one case by applying the guidelines to the income of the
noncustodial parent, and in the next case, by applying the guidelines to the income of
the custodial parent, as the trial court did in this case. The statutory guidelines must be
applied, initially, to the noncustodial parent’s net income to arrive at a presumptively
reasonable minimum support obligation that the noncustodial parent must pay to the
custodial parent. A court may always deviate from the guidelines, if the circumstances
warrant doing so. But the court must apply the guidelines in the same manner from case
to case. Although the majority is confident that the trial courts will apply the child
support statute properly (supra ¶ 32), the majority fails to explain what a proper
application entails. Indeed, the majority’s silence is misleading because it incorrectly
suggests that the trial court’s application of the statutory formula to the custodial
parent’s income was proper.
¶ 53 The importance of a trial court’s proper application of statutory child support
guidelines is illustrated in Williamson v. Williamson, 748 S.E.2d 679 (Ga. 2013), cited
by the majority. Supra ¶ 29. In Williamson, the Georgia Supreme Court concluded that
although the custodial parent could be required to pay child support to the noncustodial
parent, “the statute does require the court to follow certain steps.” Williamson, 748
S.E.2d at 681. The court observed that “[t]he process of calculating child support under
the guidelines *** is structured around the initial presumption that the noncustodial
parent will pay some amount to the custodial parent, who typically bears the everyday
expenses of caring for the children as they live with him or her.” Id. at 682. The court
explained that after determining the presumptive amount that the noncustodial parent
pays to the custodial parent, the court may deviate from that amount, and the final child
support order may result in a “negative” payment to the custodial parent—“which is
another way of saying that the custodial parent must pay the noncustodial parent that
amount to support the children.” (Emphasis omitted.) Id. The Georgia Supreme Court
concluded that the trial court misapplied the statute in a “fundamental way” when it
applied the statutory guidelines to the custodial father’s income, rather than the
noncustodial mother’s income. Id. at 681. The court stated:
“[T]he evidence in this case might authorize the trial court to apply a ***
deviation for Mother *** to reduce Mother’s $233 presumptive child support
amount so much that the net result is that Father must pay child support to
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Mother. But in calculating that the custodial Father was required to pay the
noncustodial Mother $1,087 in monthly child support, the court incorrectly
started with Father’s presumptive amount ***.” (Emphases in original.) Id.
¶ 54 Like the Georgia court, the trial court in the present case also erred, in a
fundamental way, in its determination of child support. The trial court began by
calculating what Steven’s support obligation would be to Iris, under the statutory
guidelines, if Iris was still the custodial parent. That figure, according to the trial court
was “somewhere in the neighborhood” of $2,500. The trial court then deviated from
that amount based on Iris’s actual parenting time with the couple’s two sons and
awarded Iris child support of $600 per month.2 The trial court, however, should have
first determined the presumptively reasonable amount of support that Iris, the
noncustodial parent, should pay to Steven, the custodial parent, under the guidelines set
forth in section 505(a)(1). After making that determination, the court could then
consider whether, pursuant to section 505(a)(2), a deviation from that amount is
appropriate, based on the best interest of the couple’s two sons, in light of evidence
regarding the financial, emotional and educational needs of the children, and the
financial resources and needs of Iris and Steven. As this court has explained, “If
application of the guidelines generates an amount that the court considers
inappropriate, then the court should make a specific finding to that effect and adjust the
amount accordingly.” In re Marriage of McGrath, 2012 IL 112792, ¶ 16. That is the
procedure the trial court should follow on remand. The fact that a significant disparity
exists between Iris’s income and Steven’s income does not change this procedure; it is
merely a factor to consider in whether to deviate from the presumptively reasonable
amount of support generated under section 505(a)(1) when the specified percentage is
applied to Iris’s income.
¶ 55 The procedure employed by the trial court, which the majority does not address,
effectively absolved Iris, the noncustodial parent, of any support obligation. To be sure,
it may yet be that the facts and circumstances of this case require that Steven,
notwithstanding his status as the custodial parent, pay child support to Iris. But Iris’s
support obligation as a parent must be acknowledged in the first instance by applying
the statutory guidelines to her. As the majority notes, “[i]n Illinois, the support of a
child is the joint and several obligation of both the husband and the wife.” (Emphasis
added.) Supra ¶ 14. That shared obligation is reflected in the child support statute. See
2
The $600 figure is roughly 25% of $2,500, which mirrors the percentage of total parenting time Iris
spends with her two sons.
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also 750 ILCS 5/505(a) (West 2012) (authorizing the trial court to order either or both
parents to pay child support). Applying the guidelines as the trial court did in this case
undermines that rule of law. I recognize that the statutory guidelines, by their very
nature, do not address every conceivable situation. Here, however, where the father has
sole custody of the children, the statutory guidelines clearly apply and must be the
starting point for an award of child support.
¶ 56 CONCLUSION
¶ 57 I agree with the majority that under appropriate circumstances the trial court may
order the custodial parent to pay child support to the noncustodial parent. But the trial
court must follow the proper procedure so that the obligation of both parents is taken
into account and the “physical, mental and emotional health needs of the child” are
met. 750 ILCS 5/505(a) (West 2012).
¶ 58 JUSTICE THOMAS joins in this special concurrence.
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