In re Marriage of Barboza

2018 IL App (2d) 170384 No. 2-17-0384
Opinion filed December 13, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
BOBBI BARBOZA FISHER, ) of Du Page County.
)
Petitioner-Appellant, )
)
and ) Nos. 13-D-1843
) 13-D-1836
)
BRYCE A. FISHER, ) Honorable
) Robert E. Douglas,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
¶1 Petitioner Bobbi Fisher appeals from the trial court’s order granting respondent Bryce
Fisher’s motion to dismiss Bobbi’s petition to modify child support. For the following reasons,
we vacate the trial court’s order and we remand this cause for further proceedings.
¶2 I. BACKGROUND
¶3 The record reflects that the parties were married on October 30, 2004. On April 16,
2015, a judgment of dissolution of marriage was entered, which incorporated a “Marriage
Settlement Agreement” (MSA) between the parties. Two daughters were born during the
marriage, M.F. and L.F., who were ages 10 and 8, respectively, when the judgment of dissolution
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of marriage was entered. In the MSA, the parties set forth Bryce’s child support obligation as
follows:
“4.01. Child Support. Bryce currently earns a base salary of $250,000 from his
employment at Bank of America (‘B of A’), is eligible for an annual discretionary cash
bonus from B of A, and receives disability income from the National Football League
(‘NFL’) in the amount of $50,760. Bryce shall pay guideline child support to Bobbi in
the amount of 28% of his net income up to $300,000 of Gross Annual Income. Bryce
shall not be required to pay additional support on any income he receives in excess of
$300,000 Gross Annual Income per year.
***
Bryce shall pay child support to Bobbi in the amount of Four Thousand Four
Hundred Twelve Dollars ($4,412) per month. Said amount represents twenty-eight
percent of the net (as defined by 750 ILCS 5/505) of $300,000 of Gross Annual Income.
The parties acknowledge and agree that the cap on child support set forth in this
Paragraph is appropriate given Bryce’s income level, the allocation of the children’s
expenses as set forth in this Agreement, the parties’ current standard of living, and all
other factors to be considered by the court in establishing a cap and deviating from the
guideline support.”
¶4 Regarding the modifiability of child support, the MSA provides, in pertinent part:
“4.04. Modifiability. The parties acknowledge that child support shall be
modifiable and may be modified upon proper notice and petition by either party. Any
modification shall be made by a court of competent jurisdiction taking into account all
applicable statutory provisions.”
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¶5 The trial court did not use the words “child support” anywhere in the judgment of
dissolution. Instead, the judgment provided, in pertinent part:
“6. That the parties have entered into a Marital Settlement Agreement dated April
16, 2015 and a Custody Judgment Agreement dated December 19, 2014 concerning
questions of maintenance, attorney fees, the respective rights of each party in and to the
property, income or estate which either of them now owns or may thereafter acquire,
including a division of all marital and non-marital property, and other matters, which
Agreement has been presented to this Court for its consideration, and it is incorporated
into this Judgment for Dissolution of Marriage by reference pursuant to 750 ILCS
5/502(d).
7. The Court has considered the economic circumstances of the parties and other
relevant evidence and finds that the Agreement is fair and equitable, was freely and
voluntarily entered into by the parties, is not unconscionable and is approved by this
court.”
¶6 In referring to the MSA later in the judgment, the trial court found the following:
“The Agreement herein contained is approved, confirmed, ratified and
incorporated into this Judgment of Dissolution of Marriage by reference pursuant to 750
ILCS 5/502(d) to the same extent and with the same force and effect as though the
provisions contained in the Agreement were set forth in this paragraph of this Judgment;
and each and every provision of the Agreement is binding upon each of the parties, and
each of the parties shall do and perform all the acts undertaken and carry out all the
provisions contained in the Agreement which is made a part of this Judgment.
Notwithstanding the adoption of the Agreement by the Court, the Agreement shall
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continue to have independent legal significance outside the ambit of this Judgment and
shall be subject to enforcement by either party as in the case of any other contract or
agreement[.]”
¶7 In April 2016, Bobbi filed a petition to modify child support. In her petition, Bobbi
sought an increase in both child support and Bryce’s contribution to their children’s direct
expenses. Bobbi alleged four bases for an increase in child support and contribution: (1) the
children were older, (2) the children’s expenses had increased, (3) Bobbi’s financial resources
had decreased because she was involved in an automobile accident, and (4) upon information
and belief, Bryce’s income had increased. In May 2016, Bryce filed a motion to dismiss Bobbi’s
petition. In June 2016, an agreed order was entered whereby the parties agreed (1) to increase
Bryce’s contribution to the children’s direct expenses from 50% to 60%, (2) to terminate Bryce’s
maintenance obligation to Bobbi effective December 31, 2016, and (3) to prohibit both parties
from filing any pleadings through December 31, 2016. Bryce’s child support obligation
remained unmodified.
¶8 In January 2017, Bobbi filed another petition to modify child support. In her petition,
Bobbi alleged the same four bases for an increase in child support that she alleged in her earlier
petition. Bobbi also argued that setting a cap on child support was against public policy in
Illinois. In February 2017, Bryce filed a motion to dismiss Bobbi’s second petition. In his
motion, Bryce argued that Bobbi failed to allege a substantial change in circumstances that, if
proven, would justify an increase in child support. He also argued that Bobbi pleaded
conclusions of law and not facts. In Bobbi’s response, she argued that, since the entry of the
judgment of dissolution and the MSA, Bryce’s self-reported income went from:
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“$300,000 = $250,000 (base) + $50,000 disability payment from the NFL to
earnings in 2016 of at least: $488,000 = $418,000 from his employer at B of A + $20,000
IRA withdrawal + $50,000 disability payment from the NFL + potential income from
Ceannete Corp. Investments + potential income from AGM Portfolio II, LLC, Investment
+ Income from his NFL Player Annuity + etc.”
¶9 Bobbi again argued that the cap on child support in the parties’ MSA was contrary to
public policy, particularly when section 505(a) of the Illinois Marriage and Dissolution of
Marriage Act (Act) provided clear instructions on the guideline-deviation process. 750 ILCS
5/505(a) (West 2014). Bryce filed a reply to Bobbi’s response and argued that only new
evidence arising since the last petition to modify child support could be presented to the court
and that, since Bobbi failed to allege a new substantial change in circumstances, her pleading
was deficient.
¶ 10 In March 2017, the trial court held a hearing on Bryce’s motion to dismiss. At the
hearing, Bryce’s counsel argued that Bobbi acknowledged that her latest petition was identical to
her previous one, and that if her efforts were not quashed right now, Bobbi would continue to
come into court every six months in an attempt to receive more support. Counsel said that Bobbi
had requested an increase in child support only because her maintenance was ending and that she
was using this petition as a guise for seeking more maintenance. Counsel also stated that the
allegations in Bobbi’s petition did not constitute a substantial change in circumstances.
¶ 11 With regard to the MSA’s cap on child support, Bryce’s counsel claimed that (1) the
parties agreed to the cap, (2) the reasons for the deviation were set forth in the MSA, and
(3) Bobbi had not cited a case that said that a cap on child support was against public policy.
¶ 12 The trial court and Bobbi’s counsel then engaged in the following colloquy:
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“THE COURT: Okay.
So now I got your response in which you say, well, the kids are older, six months
older than the last time I looked at this, and expenses have increased, six months have
gone by.
My question to you and what this really boils down to is the court—and if you
answered this, maybe I can come up—but where I’m really having an issue is when I
read the Marital Settlement Agreement, what you presented to me is Bryce—the Marital
Settlement Agreement set child support at $300,000. It defined if Bryce got $250,000
from his employer plus additional funds and then $50,000 from the NFL, correct?
MR. MENDEZ [(BOBBI’S ATTORNEY)]: Correct.
THE COURT: Okay.
So at the time that Mrs. Fisher entered into that agreement, she was aware that
Mr. Fisher was going to get additional funds over and above the 3—the $250,000 that he
was getting from the bank at the time. And those were—we all know what that is. That’s
discretionary bonuses, commissions, whatever.
MR. MENDEZ: Correct.
THE COURT: How is it now that she’s surprised that he’s making $488,000, take
$50,000 off that, so roughly 430?
She knew he was going to get bonuses. She agreed that’s okay. I know you’re
going to get bonuses. I know you’re going to get additional income. I’m willing to set
the child support at this amount. I agree to it. I entered into a—I’m using my air quotes
here, saying that for the record—but into a contract in the form of a Marital Settlement
Agreement, which is binding upon everybody.
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There’s the question that you got to answer for me.” (Emphasis added.)
¶ 13 Bobbi’s attorney replied that the law in Illinois is that child support is always modifiable.
Therefore, he claimed that, whatever the parties agreed to when they entered into the MSA,
Bobbi was bound only by what Bryce was earning at that time; she was not prevented from
petitioning to modify Bryce’s child support obligation in the future. Counsel then said:
“Mrs.—notwithstanding the fact that the agreement in the case was that [Bobbi]
was going to be bound by the $300,000, I think that was in error. And the court should
never have entered that settlement agreement because there is case law that supports the
position that the court still has the obligation to, one, make specific findings as to why
there is a deviation, and, two, set forth what the amount would have been and what the
current amount is that they’re providing for at this point.” (Emphasis added.)
¶ 14 Counsel argued that Bobbi was not trying to modify Bryce’s child support obligation
because her maintenance had terminated. Instead, she was trying to modify support because of
Bryce’s substantial increase in income. The court asked counsel how the increase was a
substantial change in circumstances if the parties acknowledged when they entered into the MSA
that Bryce’s income was going to increase. Counsel answered that by Illinois law the court was
not bound by parties’ agreements relating to support, visitation, or custody of minors. The court
then stated:
“If there is no change in—now, if they had read, we’re going to set this on
Bryce’s income at 28 percent, $300,000 base and $50,000 from the NFL, that’s $350,000.
And that was all it said. And then today he’s making $488,000 I’d say dog gone right
that’s a change in circumstances. You set it on a base of $300,000.
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But there was that little clause that you guys put in there, not me, the parties, that
said, and additional income, which means that they contemplated that.
And while I can modify child support anytime, if the parties contemplated it and it
happens, that’s not a change in circumstances.
If they didn’t contemplate it and it happens, that is a change in circumstances.”
(Emphasis added.)
¶ 15 The court thus found that there was no change in circumstances, because, in the MSA, the
parties anticipated Bryce’s income increasing in the future. Therefore, it granted Bryce’s motion
to dismiss Bobbi’s petition. Bobbi filed a motion to reconsider, which the court denied after a
hearing. Bobbi timely appealed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, Bobbi contends that the trial court erred in finding that she failed to allege a
substantial change in circumstances, and therefore in granting Bryce’s motion to dismiss, for
three reasons: (1) the trial court erred as a matter of law when it found that, since the parties
anticipated that Bryce’s income would increase in the future, any increase in his income could
not constitute a substantial change in circumstances, (2) the trial court erred in finding that
Bryce’s income did not constitute a substantial change in circumstances when, according to
Bobbi, the support cap applied only to Bryce’s income when the judgment was entered, and
(3) the trial court’s enforcement of the support cap violates federal and state statutory law and
public policy.
¶ 18 Within her third argument, Bobbi notes that this court, referring to section 505(a)(2) of
the Act, has acknowledged that a trial court is statutorily required to protect children’s right to
support and must explain the evidentiary basis for any deviation from Illinois statutory
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guidelines. In re Marriage of Micheli, 2014 IL App (2d) 121245, ¶ 24 n.1 (citing 750 ILCS
5/505(a)(2) (West 2012)). She also argues that a court is not bound by an agreement between the
parties relating to the support, visitation, or custody of the children, citing In re Marriage of
Hightower, 358 Ill. App. 3d 165 (2005).
¶ 19 In response, Bryce argues that the trial court properly granted his motion to dismiss
because none of the bases asserted by Bobbi in her second petition constituted a substantial
change in circumstances since the entry of the agreed order after Bobbi filed her first petition.
Bryce acknowledges that there is Illinois case law holding that an increase in income, standing
alone, may constitute a substantial change in circumstances, justifying a modification of child
support. However, he claims that those cases are inapplicable because, here, the possibility that
he would earn more than $300,000 was acknowledged and contemplated by the parties when
they entered into the MSA.
¶ 20 Finally, Bryce contends that the trial court’s order dismissing Bobbi’s petition did not
violate federal law, state law, or public policy. He argues that Bobbi does not cite any case
holding that a cap on income for child support violates public policy. He acknowledges that
Illinois law requires that a trial court make express findings justifying any deviation from
statutory child support guidelines. However, he claims that, in the MSA, the parties
acknowledged and agreed that the deviation was justified by factors such as Bryce’s income
level, the parties’ current standard of living, and the allocation of the children’s expenses. He
then claims that the trial court reviewed and approved this deviation upon (1) the entry of the
judgment and (2) the entry of the June 2016 agreed order. Finally, Bryce argues that, if caps on
child support were unenforceable, percentage child support orders would often result in a
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windfall to the obligee, and, in turn, the court’s ability to set a percentage child support order as
permitted under the Act would be obviated.
¶ 21 A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2­
615 (West 2016)) challenges the legal sufficiency of a complaint, based on facial defects of the
complaint. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382 (2004). A trial court should
grant a section 2-615 motion to dismiss only if “it is clearly apparent that no set of facts can be
proved that would entitle the plaintiff to relief.” (Internal quotation marks omitted.) Pilotto v.
Urban Outfitters West, L.L.C., 2017 IL App (1st) 160844, ¶ 16. A court must accept as true “all
well-pleaded facts and all reasonable inferences that may be drawn from those facts.” (Internal
quotation marks omitted.) Johnson v. Filler, 2018 IL App (2d) 170923, ¶ 15. This court reviews
de novo a trial court’s ruling on a motion to dismiss. Bonhomme v. St. James, 2012 IL 112393,
¶ 34.
¶ 22 Illinois law provides that the statutory guideline amount of child support for two children
is 28% of the supporting party’s net income. 750 ILCS 5/505(a)(1) (West 2014). That guideline
“shall be applied in each case unless the court finds that a deviation from the guidelines is
appropriate after considering 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
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(e) the financial resources and needs of the non-custodial parent.”
(Emphases added.) Id. § 505(a)(2).
“The court shall include the reason or reasons for the variance from the guidelines.” (Emphasis
added.) Id. “It is the court’s responsibility and not the parties’ to determine the adequacy and
amount of child support.” In re Paternity of Perry, 260 Ill. App. 3d 374, 380 (1994) (citing
Blisset v. Blisset, 144 Ill. App. 3d 1088, 1092 (1986)). “Requiring courts to comply with section
505(a) before entering settlement agreements concerning child support is an assurance toward
the end that the best interests of children will be protected.” Id. If an agreed order allows for
less child support than is provided for in the statutory guidelines, the trial court must make
express findings for allowing the deviation. Id.
¶ 23 A modification of child support may be allowed only upon a showing of a substantial
change in circumstances. 750 ILCS 5/510(a) (West 2016). A substantial change in
circumstances justifying a modification increasing child support may be based solely upon an
increase in the supporting parent’s ability to pay. In re Marriage of Putzler, 2013 IL App (2d)
120551, ¶ 29. A trial court’s ruling on a petition for a modification of child support will not be
reversed absent an abuse of discretion. In re Marriage of Hill, 2015 IL App (2d) 140345, ¶ 17.
¶ 24 The issue before us here is whether the trial court erred when it granted Bryce’s motion to
dismiss Bobbi’s second petition to modify child support. Therefore, our standard of review is
de novo. Bonhomme, 2012 IL 112393, ¶ 34. With this standard of review in mind, we have
carefully reviewed the judgment of dissolution, the MSA, Bobbi’s petitions to modify child
support, Bryce’s responses thereto, and Bryce’s motion to dismiss. In doing so, we find that the
Act was violated when the trial court that entered the judgment of dissolution 1 did so without
1
It appears from the record that the trial judge who entered the judgment of dissolution
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specifically stating the reasons for the variance from the statutory child support guidelines. As
we have noted, the statutory guidelines
“shall be applied in each case unless the court finds that a deviation from the guidelines is
appropriate after considering 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.”
(Emphases added.) 750 ILCS 5/505(a)(2) (West 2014).
¶ 25 Here, the judgment of dissolution does not even contain the words “child support,” let
alone provide specific reasons why the deviation from the statutory guidelines, by placing a cap
on Bryce’s income for child support purposes, was in the children’s best interests. We reject
Bryce’s argument that, in the MSA, the parties acknowledged and agreed that the deviation was
appropriate and listed factors in support of that decision. It is well settled that it is the court’s
responsibility, not the parties’ responsibility, to determine the adequacy and amount of child
support. In re Paternity of Perry, 260 Ill. App. 3d at 380 (citing Blisset, 144 Ill. App. 3d at
1092). Therefore, the fact that the parties agreed in the MSA that child support should be capped
is irrelevant.
and incorporated the MSA into the judgment was not the trial judge in the instant case.
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¶ 26 We also reject Bryce’s claim that the trial court reviewed and approved the deviation
upon the entry of the judgment of dissolution and again upon the entry of the June 2016 agreed
order. First, as we have noted, the judgment of dissolution does not even contain the words
“child support,” let alone provide any reasons why the cap on child support serves the best
interests of the children in light of the evidence. See 750 ILCS 5/505(a)(2) (West 2014). The
trial court’s reference to the MSA in the judgment of dissolution—along with its findings that the
MSA was (1) fair and equitable, (2) freely entered into by the parties, and (3) not
unconscionable—falls very far short of the statutory requirement that a trial court list its reasons
for deviating from the statutory child support guidelines. Furthermore, even had the trial court
made the required findings to deviate from the guidelines at the time of judgment, Bobbi still
would not be precluded from petitioning to modify child support based on changed
circumstances occurring thereafter. See In re Marriage of Rife, 376 Ill. App. 3d 1050, 1064
(2007) (citing Blisset v. Blisset, 123 Ill. 2d 161, 167 (1988)) (parties may not contract away their
rights to petition to modify child support, because the trial court is obligated to protect the best
interests of the children involved).
¶ 27 In addition, the trial court did not approve the deviation upon the entry of the June 2016
agreed order. That order simply approved the parties’ agreement to modify other areas of the
MSA, like the percentages the parties were required to pay of the children’s expenses. The
agreed order did not modify the child support section of the MSA. Moreover, even if the trial
court had approved the deviation in its June 2016 order and provided reasons therefor, the
wording of that order would not be sufficient to uphold the provision in the MSA that the parties
agreed to a cap on child support. Here, we are reviewing the original judgment of dissolution as
well as the MSA to determine whether the trial court, at the time the judgment was entered and
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the MSA was incorporated into it, provided sufficient reasons why a deviation from the statutory
child support guidelines was appropriate section 505(a)(2) of the Act. 750 ILCS 5/505(a)(2)
(West 2014).
¶ 28 Since we have found that the trial court that entered the judgment of dissolution did not
comply with section 505(a)(2) of the Act, the section of the parties’ MSA capping child support
is not viable and is stricken. Therefore, we need not address the parties’ remaining arguments
for and against the trial court’s order granting Bryce’s motion to dismiss.
¶ 29 III. CONCLUSION
¶ 30 In sum, the trial court erred in granting Bryce’s motion to dismiss Bobbi’s second
petition to modify child support when the trial court that presided over the parties’ dissolution
proceedings did not explicitly find a cap on child support to be in the children’s best interests.
The fact that the parties agreed to cap child support in the MSA was irrelevant for purposes of
reviewing Bobbi’s second petition to modify child support. Accordingly, the portion of the MSA
that capped child support is stricken, the trial court’s order granting Bryce’s motion to dismiss is
vacated, and this cause is remanded for further proceedings consistent with this opinion.
¶ 31 The judgment of the circuit court of Du Page County is vacated and the cause is
remanded.
¶ 32 Vacated and remanded.
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