In re Marriage of Shores

Illinois Official Reports
Appellate Court
In re Marriage of Shores, 2014 IL App (2d) 130151Appellate Court In re MARRIAGE OF CLYDE W. SHORES, Petitioner-Appellant,
Caption and JANE SHORES, Respondent-Appellee.
District & No. Second District
Docket No. 2-13-0151
Filed May 16, 2014
Held In an appeal challenging an award of child support based on a bonus
(Note: This syllabus plaintiff earned through his employment and two reimbursement
constitutes no part of the payments he received from his employer, the appellate court reversed
opinion of the court but the increase based on the bonus, since the bonus was speculative
has been prepared by the income that was earned during the obligation period but was not paid
Reporter of Decisions until after the support period had ended and, therefore, was not income
for the convenience of for purposes of the support period at issue; however, the
the reader.)
reimbursement payments were not speculative, both were earned
during the obligation period, and even though one of the payments
was received after the obligation period ended, both were income for
purposes of the obligation period.
Decision Under Appeal from the Circuit Court of Kane County, No. 07-D-540; the
Review Hon. Katherine M. Moran, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Thomas G. Kenny, of Kenny & Kenny, of Wheaton, for appellant.
Appeal
Richard C. Slocum and Thomas E. St. Jules, both of Dreyer, Foote,
Streit, Furgason & Slocum, P.A., of Aurora, for appellee.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Clyde W. Shores, appeals the trial court’s award of an increase in child support,
arguing that the trial court erred by including three items as income under section 505(a)(3) of
the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(3) (West
2010)) in its child support calculation for January 1, 2010, through July 12, 2010. The three
items were a bonus that petitioner received in 2011 for his performance in 2010 and two
relocation reimbursements he received in the amounts of $20,355.21 and $14,487.62. In order
to answer when an item counts as section 505(a)(3) income, we analogize child support income
to the treatment of marital assets. We find that for purposes of child support, when future
income is speculative, it is income not when earned but rather when received. Accordingly, we
affirm in part, reverse in part, and remand.
¶2 I. BACKGROUND
¶3 This is an appeal from an order modifying child support, following a postjudgment,
domestic relations proceeding. The proceeding followed the dissolution-of-marriage judgment
originally entered on July 19, 1999, between petitioner and respondent, Jane Shores, in
California and enrolled in the Kane County circuit court on May 17, 2007.
¶4 The parties were married on August 9, 1986, and they had two children during their
marriage, Katherine born March 8, 1989, and Emily born July 13, 1992. After their marriage
dissolution, the parties shared joint custody of the children, with respondent having primary
residential custody. The judgment provided that petitioner would pay respondent child support
of $2,900 per month (allocated as $1,088 for Katherine and $1,812 for Emily) until each child
married, died, was emancipated, reached 18 years of age and was not a full-time high school
student residing with respondent, or reached 19 years of age, or upon further order of the court,
whichever occurred first.
¶5 On October 18, 2007, respondent filed a petition to increase child support and a petition for
contribution to college expenses for Katherine. Thereafter, on October 24, 2009, petitioner
filed a petition for contribution to college expenses for Emily. On August 31, 2009, petitioner
filed a petition for modification of child support, alleging that he lost his job and was unable to
pay child support.
¶6 The two petitions for contribution to college expenses were resolved on July 8, 2010, by an
agreed order. The agreed order provided that each party would pay for half of each child’s
college expenses.
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¶7 Regarding the petition to modify child support, the trial court held a nonevidentiary
hearing on February 14, 2011. After considering the parties’ briefs and holding oral argument,
the trial court entered an order that provided, in relevant part, that all relocation reimbursement
payments received by petitioner would be included in calculating child support. Furthermore,
the order required that petitioner pay child support on all bonuses, incentive stock receipts,
stock options, or any other type of compensation paid in 2011 for work performed in 2010
prior to July 13, 2010.
¶8 On March 3, 2011, the trial court entered an order setting the amount of child support
petitioner owed from 2007, 2008, and 2009 (total: $30,721.65). The March 3 order also
continued to April 26, 2011, the matter of 2010 support due, although the matter was not heard
until September 4, 2013. In the interim, petitioner filed a motion on July 17, 2011, for
termination of his obligation to Katherine, which the trial court granted on July 28, 2011,
except for claims for contribution to expenses incurred prior to the child’s emancipation.
¶9 On July 28, 2011, petitioner filed a motion to reconsider the February 2011 order.
Petitioner argued that income he received after Emily’s emancipation was not subject to child
support, and he urged the court to reconsider that portion of its February 2011 order. The court
eventually denied the motion for reconsideration on January 31, 2013.
¶ 10 At a September 12, 2011, hearing, the following documents were admitted: petitioner’s
2010 jointly filed tax return for himself and his current wife; his letter of employment with
Baxter Healthcare Corporation (Baxter) as vice president of global marketing, dated October
16, 2009, and confirming his eligibility to participate in the company’s “Management
Incentive Compensation Program” (MICP); his 2010 form W-2; his wife’s form W-2; his
wage/paycheck statement from Baxter, dated July 9, 2010; his March 18, 2011, wage
statement from Baxter that included a $100,931.04 MICP bonus; a copy of the Baxter MICP
policy; and copies of his 2009-10 and 2010-11 annual compensation review summaries from
Baxter. Also, attached as an exhibit to respondent’s request to admit was a summary of
relocation expenses reimbursed to petitioner from November 19, 2009, through September 14,
2010, which provided a breakdown of $14,487.62 paid to petitioner after Emily’s
emancipation.
¶ 11 Petitioner testified to the following at the September 12, 2011, hearing, which was
continued to June 11, 2012. He began working for Baxter on October 26, 2009, and he
participated in the MICP offered by Baxter. He received a pro rata share of the MICP bonus in
2010 for his partial year of employment in 2009, and he was a full-year participant in 2010.
When asked if he received an MICP bonus in 2011 for his work in 2010, he answered, “I
received a[n] MICP bonus” in March 2011. His compensation in 2010 was $350,406.54,
according to his 2010 W-2, and his wife’s was $247,339 for the same year. He testified as to
his Baxter pay stub for July 9, 2010–the last paycheck he received prior to Emily’s
emancipation–verifying that he received $10,984.62 for that pay period. He testified that he
received a raise in March, although he was unable to confirm the exact amount.
¶ 12 Petitioner testified to his MICP bonuses received in 2010 and 2011, in amounts of
$21,093.33 in 2010 for the 2009 performance year (a pro rata share of what he would have
earned had he been employed for all of 2009), and $100,931.04 in March 2011 for the 2010
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performance year. He further testified that, under Baxter’s MICP, employees who are
terminated prior to February 1 of a given year, for any reason other than those specifically
permitted, were not eligible to receive an MICP bonus for performance during the previous or
current year. Petitioner testified that, for example, he would have to have been employed as of
February 1, 2011, to be eligible to receive his bonus for work in 2010.
¶ 13 Petitioner further testified that he received a relocation reimbursement in the amount of
$14,487.62 after Emily’s emancipation. Petitioner further acknowledged a $20,355.21
reimbursement on his July 9, 2010, pay stub. He had resided in St. Charles, Illinois, prior to
accepting employment with Baxter, which had its offices 60 miles away from his St. Charles
home, in October 2009. In November 2009, petitioner purchased a second home in Lake
Forest, only eight or nine miles from the Baxter offices, because he felt that a daily commute of
120 to 130 miles was not sustainable. He testified that the reimbursements were for duplicate
housing expenses that he incurred as a result of maintaining his home in Lake Forest. The
reimbursements were for the actual expenses of his Lake Forest home (mortgage, interest,
taxes, etc.), and he continued to make similar payments on his St. Charles home. He testified
that he repaid both the $14,487.62 and the $20,355.21 reimbursements to Baxter in May 2011
after he voluntarily terminated his employment with Baxter, pursuant to his employment
agreement. He ended his employment with Baxter to take a different position in California
with an annual salary around $330,000. He chose to own two homes simultaneously while
working for Baxter because of the promise of reimbursement for duplicate housing costs.
¶ 14 Counsel for petitioner and respondent made closing arguments on July 2, 2012. The trial
court confirmed that the sole issue before it was the amount of child support due for January 1,
2010, to July 13, 2010, which was the date Emily was emancipated (i.e., turned 18 and had
graduated from high school). Respondent argued that the relocation reimbursement received
by petitioner prior to July 13 in 2010–the payment of $20,355.21–was income for purposes of
child support. Furthermore, respondent argued that the $14,487.62 relocation reimbursement,
which petitioner received after Emily’s emancipation but for expenses incurred prior to
emancipation, should likewise be included in the child support calculation. With regard to the
MICP bonus, respondent argued that the $100,931.04 bonus that petitioner received in March
2011 was for his work performance in 2010 and that therefore a prorated portion of that bonus
should be included in calculating the 2010 child support. Respondent argued that 52.88% of
that bonus should be subject to child support (basing the percentage on the proportion of time
in 2010 before Emily was emancipated). The total balance respondent claimed for 2010 child
support, based on the MICP bonus, reimbursements, and other income, was $21,329.61.
¶ 15 Petitioner argued that the MICP bonus received after Emily’s emancipation was not
subject to child support, because his continued employment after the child’s emancipation was
necessary to receive the bonus. Furthermore, petitioner argued that he repaid all of the
reimbursements after he left his employment with Baxter (pursuant to his employment
contract) and that therefore they should be excluded from his income for purposes of child
support. He argued that, even if he had not repaid the reimbursements, the reimbursements
were not income, because they did not increase his wealth–they were repayments for
out-of-pocket business expenses.
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¶ 16 The trial court issued its written opinion and order on August 27, 2012. Regarding
respondent’s petition to increase child support, the court discussed petitioner’s MICP bonus.
The trial court said:
“Basically, the MICP bonus is based on the employee’s performance as well as
Baxter’s. *** The MICP program provides [that] bonus/awards will be paid out as soon
as possible following the end of the performance year for which they correspond.
Common sense dictates that the bonus [petitioner] received on March 18, 2011, was for
the 2010 performance year.”
Accordingly, the trial court found that the 2011 bonus should be included in petitioner’s 2010
child support income. Regarding the relocation expense reimbursements that petitioner paid
back in full after voluntarily terminating his employment with Baxter, the trial court did not
find that they were income for purposes of child support.
¶ 17 Taking into account both the child support that petitioner had already paid and the child
support that he owed on additional income from January 1 through July 12, 2010, the trial court
ordered petitioner to pay an additional $13,770.49 in child support for 2010.
¶ 18 Both petitioner and respondent filed respective motions for reconsideration; petitioner
argued, in pertinent part, that income received after July 12, 2010 (e.g., the 2011 MICP bonus),
should not be income for child support, and respondent argued, in pertinent part, that the trial
court erred by not including relocation expense reimbursements in its calculation of
petitioner’s income from January 1 through July 12, 2010.
¶ 19 The trial court resolved the parties’ motions to reconsider in its January 31, 2013, opinion
and order. First, addressing respondent’s motion, the trial court clarified that it did not include
the $20,355.21 relocation reimbursement in petitioner’s 2010 income because, although that
payment was listed on petitioner’s July 9, 2010, wage statement, it was not included in
petitioner’s year-to-date total earnings on that same wage statement. The $14,487.62
relocation reimbursement was likewise excluded from income for the relevant time period
because there was no corresponding wage statement to show when the payment was made.
However, the court’s review of petitioner’s testimony showed that he admitted that both
reimbursements received were for expenses incurred prior to July 13, 2010, and it was not
refuted that he received the $20,355.21 reimbursement prior to July 13, 2010. Moreover, the
court held that petitioner “being required to re-pay these sums to Baxter when he left the
company *** is not dispositive to the issue of whether these payments are income and should
be included when calculating [his] net income.” The court reasoned that these payments of
$20,355.21 and $14,487.62 “effectively increased his income” for January 1, 2010 through
July 12, 2010. Therefore, the court found that it erred in not including those amounts in the
determination of child support and granted respondent’s motion in that respect.
¶ 20 Turning to petitioner’s motion to reconsider, petitioner argued that income received after
July 12, 2010, including the MICP bonus received in 2011 and the relocation reimbursements
of $20,355.21 and $14,487.62, should not be included in calculating his income for January 1
through July 12, 2010. The trial court found that bonuses earned and reimbursements for
expenses incurred prior to July 13, 2010, were to be included in petitioner’s 2010 child support
income. The trial court reasoned that “the receipt of the bonus and the relocation payments
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positively affected [petitioner’s] ability to provide for himself and for his children.” The trial
court accordingly denied petitioner’s motion in part.1
¶ 21 Petitioner timely appealed.
¶ 22 II. ANALYSIS
¶ 23 A. Standard of Review
¶ 24 Petitioner argues that the issues before the court involve interpretations of statutes, namely
sections 505(a)(3) and 510(d) of the Act (750 ILCS 5/505(a)(3), 510(d) (West 2010)), and that
therefore our review should be de novo. Respondent does not address the standard of review.
While we generally review a trial court’s net income determination for an abuse of discretion
(e.g., In re Marriage of Deem, 328 Ill. App. 3d 453, 457 (2002)), whether an item is income
under section 505 of the Act is an issue of statutory construction and thus a question of law we
review de novo (In re Marriage of Lindman, 356 Ill. App. 3d 462, 465 (2005); Einstein v.
Nijim, 358 Ill. App. 3d 263, 267 (2005)).
¶ 25 Here, we are faced with issues of statutory construction, particularly, of what constitutes
income under section 505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West 2010)). At issue are
whether the bonus received in 2011 for work performed in 2010 is section 505(a)(3) income
(on a pro rata basis) for 2010, whether the relocation reimbursement received prior to Emily’s
emancipation but subsequently repaid is section 505(a)(3) income, and whether the relocation
reimbursement received after Emily’s emancipation but for an expense incurred prior to
emancipation is section 505(a)(3) income. The facts are not in dispute, so the crux lies upon
our interpretation of section 505(a)(3), and thus we shall review the trial court’s order de novo.
¶ 26 B. Characterization of the MICP Bonus
¶ 27 The first issue we examine is whether the trial court properly included a pro rata share of
petitioner’s MICP bonus, received in March 2011, as section 505(a)(3) income for the period
of January 1, 2010, through July 12, 2010. Petitioner argues that a child support obligation
terminates when a child is emancipated under section 510 of the Act. This is not what is in
dispute, as there is no disagreement that petitioner’s child support obligation ended upon
Emily’s emancipation. Rather, at issue is whether the bonus constituted section 505(a)(3)
income when it was earned or when it was received. We proceed therefore to petitioner’s
argument that his bonus should not be included in section 505(a)(3) income for 2010.
¶ 28 Petitioner argues as follows. Net income under section 505(a)(3) of the Act is defined as
“the total of all income from all sources,” minus enumerated deductions. 750 ILCS 5/505(a)(3)
(West 2010). The supreme court discussed the plain and ordinary meaning of section 505(a)(3)
1
The trial court did agree with petitioner that a relocation gross-up payment (a payment to cover
what petitioner would have to pay in taxes on the relocation reimbursements) of $10,554.25 should not
be included in calculating his income for purposes of child support. The court also agreed that
appropriate taxes, Medicare payments, and medical insurance premiums should be deducted in
reaching his net income.
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income in In re Marriage of Rogers, 213 Ill. 2d 129 (2004), as “simply ‘something that comes
in as an increment or addition ***: a gain or recurrent benefit that is usu[ally] measured in
money ***: the value of goods and services received by an individual in a given period of
time.’ ” Id. at 136-37 (quoting Webster’s Third New International Dictionary 1143 (1986)).
The supreme court also cited Black’s Law Dictionary, which defines income as money or
payment one receives from employment, business, investments, gifts, etc. Id. at 137 (citing
Black’s Law Dictionary 778 (8th ed. 2004)). Under Rogers, then, a benefit must “come in,”
that is, be received to qualify as income. In In re Marriage of Worrall, 334 Ill. App. 3d 550,
553-54 (2002), the court observed that income is “ordinarily understood to be a return on the
investment of labor or capital, thereby increasing the wealth of the recipient.” (Internal
quotation marks omitted.) This definition aligns with Webster’s and Black’s, which likewise
focus on receipt of money or payment. Worrall defines income with reference to the
“recipient,” implying the necessary assumption of receipt of the benefit. The date on which the
benefit was earned is irrelevant; it is the receipt of the benefit that matters. Therefore, because
the MICP bonus was not received until 2011–well after the child’s undisputed emancipation in
July 2010, which terminated petitioner’s child support obligation–it was not income until
2011, and the trial court erred in including a pro rata share of the bonus in the 2010 income
calculation.
¶ 29 Respondent rejoins that in Illinois what is taxable income under the Internal Revenue Code
(IRC) does not govern the determination of section 505(a)(3) income; income for child support
might or might not be taxable income under the IRC. Rogers, 213 Ill. 2d at 137; see
In re Marriage of McGowan, 265 Ill. App. 3d 976, 979 (1994) (“ ‘[I]ncome’ for tax purposes is
not synonymous with ‘income’ for determining child support.”). As there is a dearth of Illinois
case law addressing whether a benefit, earned while the child support obligation existed but not
received until the obligation terminated, is section 505(a)(3) income, respondent turns to other
jurisdictions for analogous comparisons. Respondent cites Myhra v. Myhra, 756 N.W.2d 528,
535 (Neb. Ct. App. 2008), wherein the court found a bonus received in 2006, for work
performed prior to the dissolution of marriage in 2005, to be a marital asset. Respondent also
cites Lewis v. Lewis, 785 P.2d 550, 556 (Alaska 1990), wherein the court found that stock
received after the dissolution of the husband’s marriage, but pursuant to an employment
agreement executed prior to dissolution that would award him shares if the employer had a
profitable 18 months, was a marital asset. Respondent asserts that marital assets are similar to
section 505(a)(3) income–and are, in fact, defined less broadly–and that these cases are
therefore instructive. Respondent argues that, because petitioner completed the performance
that gave rise to the bonus before Emily’s emancipation, the bonus was properly included in
the child support calculation.
In petitioner’s reply brief, he argues that section 510(d) of the Act provides only three
exceptions to the general rule that a child support obligation terminates upon the child’s
emancipation. Again, this is not what is in dispute. The issue is whether the bonus was income
upon receipt or upon completion of the performance that gave rise to it. Petitioner cites In re
Marriage of Waller, 339 Ill. App. 3d 743 (2003), and In re Marriage of Loomis, 348 Ill. App.
3d 972 (2004), for the proposition that a child support obligation does not extend past the
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emancipation date of the child. He argues that this proposition implies that, because the bonus
was received after the emancipation, it is not subject to child support. Petitioner contends that
“[t]he trial court erred in focusing on when the funds were earned rather than when received.”
Petitioner argues that the trial court’s holding is problematic because it extends child support
indefinitely (e.g., for pension benefits or a “golden parachute” earned in part while the child
was still a minor) and implies that income received during the child support period but earned
prior to the obligation would not be subject to child support. Petitioner disagrees that
respondent’s cases cited from other jurisdictions are instructive, asserting that marital assets
are not analogous to child support income. In rebuttal, he cites In re Marriage of Wendt, 2013
IL App (1st) 123261, which determined that a 2013 bonus to be received by the husband, if at
all, for his work in 2012 was not marital property. Id. ¶ 33. The trial court entered a judgment
for dissolution of marriage between the parties on September 19, 2012. Id. ¶ 9. On September
20, it ordered the parties to file memorandums of law addressing whether the husband’s bonus,
to be received in 2013, was marital property and thus subject to division between the parties.
Id. The wife argued that the portion of the bonus that accrued during the marriage was marital
property because her husband had a contractual right, not a mere expectancy, to the bonus. Id.
¶ 10. The husband argued that the bonus was indeterminate future income because he needed
to be employed on the date that the bonus was distributed and the bonus would be given at the
discretion of his employer. Id. The trial court agreed with the husband, ordering that the
husband was entitled to retain the entirety of his bonus received in 2013.2 Id. ¶ 11.
¶ 30 On appeal, the Wendt court framed the issue as whether a nonvested, discretionary bonus
issued after the judgment for dissolution of marriage was a marital asset, and it found the issue
to be one of first impression in Illinois. Id. ¶ 16. The court noted that the husband’s
employment was at will and that thus he had no right to receive the bonus by virtue of any
employment contract. Id. ¶ 17. His employer’s policy was that all bonuses were discretionary
and based on myriad factors, including an employee’s individual performance. Id. ¶ 18.
Moreover, his 2012 bonus, if any, would be governed by the 2013 employee incentive
program, or whatever incentive program was in effect in 2013. Id. ¶ 19. Therefore, the court
found that the husband did not have a contractual right to the bonus at issue and that, without a
vested right to the bonus, it was not marital property. Id. ¶ 20. Moreover, the Wendt court
distinguished Lewis, one of the cases respondent relies on, because the husband in Lewis had
an employment contract, whereas the husband in Wendt had no vested contractual right to the
bonus he received in 2013. Wendt, 2013 IL App (1st) 123261, ¶¶ 26-27. The 2013 bonus was
speculative until it actually vested, and thus the trial court did not err in finding that the bonus
was nonmarital property. Id. ¶ 31.
¶ 31 Petitioner argues that, like the bonus in Wendt, the bonus here was too speculative to be
considered income for child support. He had no vested right to the bonus at the time of the
child’s emancipation in 2010.
2
He still owed, however, 20% of the bonus as child support. This was pursuant to the terms of the
judgment for dissolution of marriage. Wendt, 2013 IL App (1st) 123261, ¶¶ 11, 14.
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¶ 32 We agree with petitioner that the trial court erred by including the MICP bonus in its
calculation of child support. In so doing, we must decide when the bonus was to be considered
income under section 505(a)(3). 3 In agreeing with petitioner, we find instructive the
comparison he suggests between marital assets in Wendt and child support income.
¶ 33 As with section 505(a)(3) of the Act at issue here (750 ILCS 5/505(a)(3) (West 2010)
(“ ‘Net income’ is defined as the total of all income from all sources” minus specified
deductions)), “marital property” under section 503 is defined broadly as “all property acquired
by either spouse subsequent to the marriage, except the following, which is known as
‘non-marital property’ ” (750 ILCS 5/503(a) (West 2010)). Much like the issue with child
support income here, the Wendt court was not deciding whether the bonus was nonmarital
property; it was looking at whether the bonus was not property at all but rather a mere
expectancy. Wendt, 2013 IL App (1st) 123261, ¶ 16. Because the court found that no
contractual right to the bonus existed, and that the bonus was not automatic but was fully and
explicitly at the discretion of the employer (id. ¶¶ 17-18), it could not say that the bonus was
property at all, as the bonus was “speculative until it [was] actually awarded by [the]
employer” (id. ¶ 31). In so holding, the court distinguished the bonus from pensions because
the case law discussing pension rights concerned contractual rights to pension benefits, and
the husband had no contractual right to his bonus. Id. ¶ 24.
¶ 34 The Wendt court further distinguished the bonus from stock bonuses more generally, which
were addressed by this court in In re Marriage of Peters, 326 Ill. App. 3d 364 (2001). Wendt,
2013 IL App (1st) 123261, ¶¶ 28-30. Peters addressed the issue of whether a contingent stock
bonus, earned in part during the marriage, was marital property subject to division. Peters, 326
Ill. App. 3d at 367. Although Illinois had not addressed stock bonuses earned in part during
marriage, the legislature had addressed pensions earned in part during marriage in section
503(b)(2) of the Act, which provides that all pension benefits acquired after the marriage and
before dissolution are presumed to be marital property. 750 ILCS 5/503(b)(2) (West 2010).
The Peters court observed that Illinois courts had considered nonvested stock options acquired
during marriage to be marital property, but with the caveat of not until the options were
exercised. Peters, 326 Ill. App. 3d at 368. The court found the bonus “similar to nonvested
pension benefits in that petitioner must remain employed for a certain time before he will have
a right to receive it.” Id. at 369. The bonus was also “similar to a nonvested stock option in that
the recipient ha[d] the potential to receive stock in the employer.” Id. Agreeing with the
aforementioned Alaska case, Lewis–a case the Wendt court distinguished–the court held that
“any portion of the stock bonus earned during the marriage should be considered marital
property.” (Emphasis added.) Id. The bonus was a contractual right that the husband was
working toward during the marriage, and thus the bonus was more than a “mere
3
This determination is separate and apart from what constitutes income; we have no doubt that the
MICP bonus, for instance, is section 505(a)(3) income apart from when we are to count the bonus as
income.
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expectancy” 4 –it was marital property subject to division. 5 Id. Returning to the Wendt
disposition, the court there distinguished Peters, and stock bonuses more generally, on the
basis that there was no contractual entitlement to the bonus in Wendt. Wendt, 2013 IL App (1st)
123261, ¶¶ 29-30. Therefore, Peters was not “ ‘ controlling stare decisis.’ ” Id. ¶ 30.
¶ 35 Moreover, Wendt rejected the contention that the speculative nature of the bonus was
irrelevant to the determination of whether the bonus was marital property. Id. ¶ 31. It cited
In re Marriage of Abrell, 236 Ill. 2d 249, 267 (2010), which held that, as a matter of first
impression, accrued vacation and sick days were not marital property subject to division in a
dissolution-of-marriage action. Our supreme court found that the value of accrued vacation
and sick days was too speculative and uncertain until a party would actually collect
compensation for them at retirement or upon termination of employment. Id. at 266. In fact, an
employer may change its policy on the right to receive compensation for accrued sick or
vacation days, perhaps limiting or even eliminating the right. Id. at 266-67. Therefore, the
accrued days were not marital property subject to distribution in a marriage dissolution action.
Id. at 267. On the other hand, when a party actually receives payment for accrued days
following separation but before dissolution of marriage, that payment is marital property
subject to distribution. Id. When the days have been converted to cash, the value of the days is
definite and certain, and therefore the court may properly distribute that value. Id.¶ 36 The case here is similar to Wendt, and we find Wendt’s reasoning with regard to marital
assets applicable to a determination of section 505(a)(3) income. Although both Wendt and
Peters focused on when the property was earned,6 the difference between the two cases was
the speculative nature of the bonus in Wendt. Abrell likewise based its holding on the fact that
sick and vacation days were too speculative to be marital property, despite the accrual of the
days during the marriage. Here, the MICP bonus was for petitioner’s work performance in
2010. However, according to the MICP documents admitted into evidence at the September
12, 2011, hearing, the “MICP is not a contract or guarantee. Baxter reserves the right to revise,
alter, amend or terminate the plan *** at any time, and retains sole and complete discretion to
pay or not pay any MICP award.” (Emphasis added.) Therefore, although petitioner earned his
MICP bonus for work performed during 2010, payment of that bonus was ultimately at his
employer’s discretion. He did not have a contractual right to the bonus, as in Wendt. Discretion
4
The requirements for the husband to receive the bonus were that he remain with the company for
10 years and that he average at least $125,000 in annual collected gross profit. Peters, 326 Ill. App. 3d
at 369.
5
After determining that the bonus was marital property, the court had to next consider what the trial
court should do on remand. Peters, 326 Ill. App. 3d at 370. It ultimately settled on a “reserved
jurisdiction” approach, where the court delays dividing the asset but orders how it will be divided if and
when it is paid out. Id. at 371.
6
In both cases, the bonus was received after the marriage dissolution but arose from work
performance during the marriage.
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outside of petitioner’s control made the bonus speculative until it was received in 2011, and
therefore we cannot say that petitioner had bonus income in 2010 for purposes of section
505(a)(3). Accordingly, the trial court erred by including a prorated amount of the bonus in its
calculation of petitioner’s 2010 section 505(a)(3) income.
¶ 37 C. Characterization of Relocation Reimbursements
¶ 38 Turning to the relocation reimbursements, the trial court found that both the $20,355.21
sum (received before the child’s emancipation) and the $14,487.62 sum (received after the
child’s emancipation) were section 505(a)(3) income, but petitioner argues that it erred
because its analysis was inconsistent with its MICP bonus analysis and because the
reimbursements were subsequently repaid by petitioner. In support, he cites In re Marriage of
Worrall, 334 Ill. App. 3d 550, 555 (2002), where the court held that per diem allowances for
travel expenses of a truck driver, while generally constituting income for purposes of
calculating child support, are subject to reduction to the extent that the child support payer can
prove that the allowances were used for actual travel expenses and not for his or her economic
gain. Here, petitioner argues that, because the reimbursements were repaid, they could not
have been used for his economic gain and thus under Worrall were not income.
¶ 39 We disagree with petitioner that the reimbursements were not income. We have already
disagreed with the trial court’s analysis of the MICP bonus, and we therefore proceed,
consistent with that analysis, to address whether repayment of the reimbursements excludes
the reimbursements from characterization as section 505(a)(3) income. Petitioner does not, on
appeal, argue that the reimbursements were not income under section 505(a)(3), absent
repayment.7 Therefore, we assume for purposes of this opinion that the reimbursements were
income to petitioner absent repayment.
¶ 40 Petitioner’s reliance on Worrall is misplaced. Worrall involved per diem allowances for
travel, not reimbursements for relocation expenses. The per diem allowances were for a truck
driver to use for meals and lodging while on the road in performance of his truck-driving
duties; here, the relocation reimbursements were not for expenses incurred while working but
for expenses incurred by petitioner maintaining a second residence. Nonetheless, petitioner
argues that, because the reimbursements were repaid, there was no economic gain–an
argument that the benefit fell outside the large breadth of the section 505(a)(3) definition of net
income. However, there was no obligation to repay the reimbursements until 2011 when he
voluntary left Baxter, and therefore we cannot say that the repayments nullified any economic
benefit of the reimbursements in 2010.
¶ 41 In any event, section 505(a)(3) of the Act lists the deductions that determine net income.
750 ILCS 5/505(a)(3) (West 2010). The statute defines net income as “the total of all income
from all sources, minus the following deductions.” (Emphasis added.) Id. As this court has
noted, “[s]ection 505(a)(3) is not a comprehensive statement of what constitutes income, but is
7
In fact, regarding the $14,487.62 reimbursement, petitioner argues that it was “not income to [him]
until *** actually received by him,” implying that the reimbursement, absent repayment, would be
section 505(a)(3) income.
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a statement of legislative intent to limit the deductions that may be made in calculating net
income for purposes of calculating child support.” In re Marriage of Minear, 287 Ill. App. 3d
1073, 1086 (1997). As noted, we assume that, absent repayment, the reimbursements were
income in this case. See Villanueva v. O’Gara, 282 Ill. App. 3d 147, 151 (1996) (“We hold that
reimbursement for lost earnings may be considered ‘income’ for purposes of setting a support
amount.”); see also Rogers, 213 Ill. 2d at 136-37 (the legislature defined section 505(a)(3) net
income broadly, which is broader than income under the U.S. Tax Code and included a man’s
gifts from his parents). That petitioner later repaid the reimbursements is relevant only insofar
as it helps him satisfy a section 505(a)(3) deduction.
¶ 42 Unfortunately for petitioner, he has not explicitly broached an argument that section
505(a)(3) of the Act excludes the reimbursements from net income. It is the payer’s burden to
demonstrate that a section 505(a)(3) income deduction applies. See Worrall, 334 Ill. App. 3d at
555-56 (burden on payer of child support to prove expenses are not part of net income at
hearing on remand); In re Marriage of Nelson, 297 Ill. App. 3d 651, 656 (1998) (depreciation
expenses were not deductible under section 505(a)(3)(h) where the record did not demonstrate
that the expenses were used to pay debt nor was there a specific repayment schedule provided).
Because petitioner does not present a legal argument for why the repaid reimbursements
should be excluded from his net income, we deem this argument forfeited. Ill. S. Ct. R.
341(h)(7) (eff. Feb. 6, 2013).8
¶ 43 In his reply brief, petitioner makes a different argument that is likewise forfeited. He
argues that the circumstances of his voluntary termination of employment, which necessitated
his repayment of the reimbursements, should have been a consideration in ruling on
respondent’s petition to increase child support. This argument is not an interpretation of
section 505(a)(3) but rather raises a question of whether the trial court properly considered his
financial circumstances in ruling on the petition to increase child support–essentially whether
to deviate from the standard amount of child support delineated by section 505(a)(1), not the
amount of net income under section 505(a)(3). However, petitioner initially challenged only
whether certain items were net income, and therefore an argument that the trial court should
have deviated from the section 505(a)(1) guidelines is not properly before us and is forfeited.
Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).9
8
Even had petitioner made the argument, though, there is doubt that he would have succeeded. The
repayments do not fall into the deductible category of a state or federal tax, social security payments,
mandatory retirement contributions, union dues, health insurance or life insurance premiums, prior
support obligations, or foster care payments. 750 ILCS 5/505(a)(3)(a)-(g), (i) (West 2010). His hope
would lie in section 505(a)(3)(h), but that requires expenditure on repayment of a debt, and he did not
have any arguable debt to Baxter until 2011, when he voluntarily terminated his employment. Petitioner
would have to make an argument that the repayment was indeed a debt under section 505(a)(3)(h), but
we do not address that here as he never made such an argument.
9
Even if the argument were properly before us, the argument would likely fail. The key inquiry
would be whether he voluntarily reduced his income in good faith, not whether he left his job in good
faith. See Coons v. Wilder, 93 Ill. App. 3d 127, 132 (1981) (“Substantial economic reverses resulting
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¶ 44 As petitioner forfeited both his arguments that the trial court erred by including the
$20,355.21 reimbursement in its calculation of net income, we affirm on that point. See People
v. Hillier, 237 Ill. 2d 539, 540-41 (2010) (holding that defendant forfeited his arguments,
precluding review, and thus leading court to affirm).
¶ 45 Petitioner makes an additional argument for why the $14,487.62 reimbursement should not
be considered income. He argues that he received it after the Emily’s emancipation and that
therefore the reimbursement was more akin to the MICP bonus. The expenses giving rise to the
right to reimbursement indisputably occurred within the obligation period. Unlike with the
MICP bonus, however, we do not know the relevant terms of Baxter’s agreement to reimburse
petitioner. Petitioner does not cite any language that would show that the reimbursement, like
the MICP bonus, was speculative until a time after the Emily’s emancipation; he cites only the
section that imposed his obligation to repay the reimbursements if he voluntarily left his
employment. Ambiguities in the record are resolved against the appellant (Corral v. Mervis
Industries, Inc., 217 Ill. 2d 144, 155 (2005)), and therefore we assume that all events giving
rise to the right to the reimbursement occurred prior to the child’s emancipation. Because the
reimbursement was income that accrued prior to emancipation and was not speculative like the
MICP bonus, the trial court did not err in including the $14,487.62 reimbursement in its child
support calculation despite petitioner’s not receiving it until after emancipation.
¶ 46 III. CONCLUSION
¶ 47 Analogizing marital assets to child support income, we find that the trial court erred by
including petitioner’s MICP bonus, because, although it was earned for performance in 2010,
the bonus was speculative until received in 2011. Speculative income, such as income at the
discretion of an employer, is income for purposes of child support not when it is earned but
instead when it is received, if received at all. However, the trial court did not err by including
the two disputed reimbursement payments as income, because both accrued within the
obligation period, and although one reimbursement was received after the support period
ended, the reimbursement was not speculative. Accordingly, the Kane County circuit court’s
order granting respondent’s petition to increase child support is reversed with respect to the
MICP bonus and is affirmed with respect to the reimbursements. The cause is remanded.
¶ 48 Affirmed in part and reversed in part; cause remanded.
from investments or employment are proper circumstances to be considered in determining whether
child support might be reduced or terminated.”). He testified that he left Baxter to pursue a more
lucrative job. This being the case, we would be hard pressed to say that the trial court abused its
discretion by not deviating from the statutory child support guidelines.
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