In re Marriage of Sorokin

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Appellate Court Date: 2017.10.16
15:43:57 -05'00'
In re Marriage of Sorokin, 2017 IL App (2d) 160885Appellate Court In re MARRIAGE OF NATASHA SOROKIN, Petitioner-Appellant,
Caption and ARON SOROKIN, Respondent-Appellee.
District & No. Second District
Docket No. 2-16-0885
Rule 23 order filed June 8, 2017
Motion to publish
allowed August 8, 2017
Opinion filed August 8, 2017
Decision Under Appeal from the Circuit Court of Lake County, No. 13-D-834; the
Review Hon. Elizabeth M. Rochford, Judge, presiding.
Judgment Affirmed.
Counsel on Lawrence S. Starkopf, of Lawrence S. Starkopf, P.C., of Highland
Appeal Park, for appellant.
Clare McMahon, of Northfield, for appellee.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Burke and Birkett concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Natasha Sorokin, appeals a postdissolution order granting the petition of
respondent, Aron Sorokin, to modify his child-support obligation. We affirm.
¶2 The parties were married in 1999 and have three children, all minors. On May 2, 2013,
petitioner petitioned to dissolve the parties’ marriage. On August 2, 2013, the trial court
awarded joint custody under a joint-parenting agreement, with petitioner as the primary
residential parent. On October 8, 2013, the court ordered respondent to pay temporary child
support of $1700 per month, based on a finding that his net income, primarily from his
employment at Allstate, was $5312.50 per month. The support amount was 32% of
respondent’s net income, in accordance with the guideline for supporting three children (see
750 ILCS 5/505(a)(1) (West 2012)). On February 25, 2014, petitioner petitioned to increase
child support, alleging that respondent received additional income from A&N, his
computer-related business. On July 14, 2014, the court increased respondent’s obligation to
$1950 per month, finding that this was 32% of his net income, and reserved the issue of
retroactivity.
¶3 On October 27, 2014, the court held a prove-up hearing at which respondent did not
appear, either in person or through counsel. As pertinent here, petitioner testified as follows.
Her annual income was $125,000 in base salary with a $20,000 bonus. To the best of her
knowledge, respondent’s annual income from Allstate exceeded $100,000. Documents
obtained in discovery showed that in 2012 respondent deposited approximately $280,000 into
A&N’s bank account. The parties’ joint tax return for 2012 listed the gross income from
A&N at $46,974. Respondent had filed an amended tax return for 2012 that listed the gross
income from A&N as $217,000; its cost of goods as $201,466; its business expenses as
$10,000; and its net income as $5510. However, petitioner and her accountant had calculated
gross receipts of $265,493 and a net income of $198,267.
¶4 Petitioner testified further that, to her knowledge, respondent had not yet filed a tax return
for 2013. A document prepared by his accountant stated that, for 2013, A&N’s gross receipts
were $113,000 but its net income was only $1000. Petitioner and her accountant had
concluded that, for less than all of 2013, A&N had gross receipts of $170,000 and a net
income of $95,000.
¶5 Petitioner testified that, although the court increased respondent’s monthly child-support
obligation to $1950, she had not received any payments at the new level. A&N had been
functioning since 2008 or 2009. Although respondent had represented that the business
closed in 2013, the parties’ joint e-mail account still received inquiries from potential
customers.
¶6 On April 13, 2015, the court entered a dissolution judgment, incorporating the
joint-parenting agreement. As pertinent here, it provided as follows. Petitioner’s gross annual
income consisted of a base salary of approximately $125,000 and a bonus of $20,000.
Respondent’s gross annual income from Allstate was approximately $100,000, and his net
income was estimated at $74,000. Additionally, he was the proprietor of A&N, an active
business.
¶7 The court stated that, in determining A&N’s income, it considered various sources. The
2012 joint tax return reported A&N’s gross receipts as $46,974 and profit as $396.
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Respondent’s amended return listed A&N’s gross receipts as $217,579; its adjusted gross
income as $16,113; and its net income as $5510. Petitioner’s testimony that respondent had
underreported his income was not credible. Respondent had not yet filed a tax return for
2013. Because he had not complied fully with discovery or appeared at trial, it was difficult
to determine A&N’s income. The court found that, for 2012, A&N’s gross receipts were
$265,000; the cost of the business was $159,000; the gross income was $106,000; and the net
income was $78,000. Thus, respondent’s total net income was $152,000. Based on the 32%
guideline, the court set his child-support obligation at $4053.33 per month, retroactive to
February 28, 2014.
¶8 On January 29, 2016, respondent filed his petition to reduce child support. It alleged as
follows. Respondent no longer operated A&N. He received a gross annual salary of
approximately $97,000 from Allstate, but no other income. He could not afford to pay the
present level of child support. He requested that the court reduce his obligation and reallocate
the division of payments toward the children’s education, uncovered medical bills, and other
expenses.
¶9 On April 13, 2016, petitioner petitioned for a rule to show cause against respondent,
alleging that he was in arrears in paying child support and several marital debts. On June 28,
2016, she moved per section 2-619(a)(4) of the Code of Civil Procedure (735 ILCS
2-619(a)(4) (West 2014)) to dismiss respondent’s petition as barred by res judicata, alleging
that it was in reality a collateral attack on the dissolution judgment and not based on any
change in circumstances after April 13, 2015.
¶ 10 On June 28, 2016, and July 1, 2016, the trial court held a combined hearing on
respondent’s petition to reduce child support and petitioner’s petition for a rule to show
cause. Initially, the court denied petitioner’s section 2-619(a)(4) motion to dismiss, holding
that it was untimely and stating that respondent’s petition was not a collateral attack on the
dissolution judgment but was based on an alleged change in circumstances since then. The
court then heard evidence, which we summarize insofar as it is pertinent to this appeal.
¶ 11 Respondent testified on direct examination as follows. His current child-support
obligation was approximately $3200 per month. He was also obligated to pay $67 monthly
toward the children’s medical expenses and 50% of their expenses for their tutoring,
athletics, and other extracurricular activities. In particular, his financial affidavit listed
expenses of $403 per month for clubs and summer camps. He could not afford the current
level of child-support payments. He was spending far less on nonessentials than he had in
2013, and he no longer took vacation trips with the children.
¶ 12 Respondent testified that, in 2015, his income from all sources was approximately
$96,000. According to his financial affidavit, his current gross income was approximately
$8239 per month. He owed $13,000 in back federal taxes and had debts on three credit cards.
His 401(k) account with Allstate contained $18,605. He had rolled over his IRA from
Walgreens, his prior employer, into an account with J.P. Morgan Chase; it currently
contained $2195. Respondent had no bank accounts other than his personal checking
account, which contained roughly $50 to $100.
¶ 13 Respondent testified that, in the spring of 2015, he was no longer running A&N because
it was not making money despite the many hours he had been spending on it. He did not pay
A&N’s registration fees for 2014, 2015, or 2016. He had not attempted to sell the business
because he did not think that it had any value.
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¶ 14 Respondent testified on cross-examination as follows. He stopped running A&N in 2013,
“[r]ight around the time” that petitioner filed her dissolution petition. Notwithstanding the
gross receipts that he had deposited into A&N’s bank account in 2012, and the statements in
the 2012 tax return and amended tax return, A&N had not been making any profit.
Respondent had filed a tax return for 2013; he agreed that the return listed $113,005 in gross
receipts for A&N. He and petitioner had had access to A&N’s account and had occasionally
paid taxes and family expenses out of it. However, his discontinuing A&N did not cut off the
flow of money to pay these expenses, as by then it was no longer generating income and the
account balance was already negative.
¶ 15 On redirect examination, respondent testified that A&N had bought computer parts and
resold them at a markup. In 2012, he spent 10 to 20 hours per week working on the business.
The company earned a profit of less than $50,000 that year, and in 2013 it earned less than it
had in 2012.
¶ 16 Petitioner testified that her annual base salary was $150,000. She was not paying a
mortgage, as the former marital home was in foreclosure. She drove a 2016 Lexus and had
spent $18,000 on vacations with the children in 2015. She and respondent contributed
equally to the children’s medical and extracurricular activities.
¶ 17 At the close of the evidence, the court issued a rule to show cause as to some of the
unpaid obligations that petitioner had alleged. On respondent’s petition to reduce child
support, the court held as follows. The dissolution judgment had resulted from “[a]n ex parte
trial” and was based on petitioner’s evidence. In the judgment, the court had acknowledged
that accurately establishing respondent’s income had been difficult and that the court had
relied on what little evidence it had had. As to the evidence at the hearing on respondent’s
petition, the court credited his testimony that he was not now earning any income from A&N.
It found further that he had ceased operating A&N sometime before April 13, 2015. Further,
he had acted in good faith in terminating A&N, which had not been profitable.
¶ 18 The court acknowledged that the evidence had shown that the change in circumstances
had actually occurred before the court entered the dissolution judgment. Although the
judgment had found that, as of April 13, 2015, respondent’s annual net income from A&N
was $78,000, that had been incorrect. Thus, although respondent’s present net income was
far less than what the court found on April 13, 2015, the same had been true at the time of the
judgment. Nonetheless, the court would not deny respondent relief merely because the
change in circumstances had predated the judgment. “[F]or the Court to continue to impute
[to] A&N income when the evidence so clearly supports the finding *** that the A&N
business is closed would have an absurd result and would continue to create a situation where
Respondent has an absolute inability to pay *** the inflated child support number.”
¶ 19 The court reduced respondent’s support obligation to 32% of his present net income from
Allstate, based on the finding that he was no longer earning income from A&N. The
reduction was made retroactive to February 1, 2016. The court denied respondent any relief
as to the other child-related expenses; the parties would continue to divide these equally.
¶ 20 On petitioner’s contempt petition, the court found respondent in contempt only as to his
failure to value and divide his 401(k) account, and it continued the matter for calculating the
value of the account and sentencing.
¶ 21 On August 8, 2016, the court entered an order embodying its findings and continuing the
cause for calculating child support. On September 23, 2016, it entered a judgment setting
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respondent’s child-support obligation at $1828 per month, based on a net income of
$5712.50 per month. The order also required respondent to purge his contempt by
transferring the remainder of the J.P. Morgan Chase IRA to petitioner. On October 21, 2016,
petitioner filed an appeal from the orders of August 8, 2016, and September 23, 2016.
¶ 22 On appeal, petitioner argues first that the trial court erred in denying her section
2-619(a)(4) motion to dismiss respondent’s petition. We do not address the merits of this
argument. On an appeal, it is not proper to raise the denial of a section 2-619 motion to
dismiss, as the result of the denial merged with the final judgment from which the appeal was
taken. In re J.M., 245 Ill. App. 3d 909, 919-20 (1993); Davis v. International Harvester Co.,
167 Ill. App. 3d 814, 818-19 (1988).1 Therefore, we turn to petitioner’s remaining argument
on appeal.
¶ 23 Petitioner contends that the judgment reducing respondent’s child-support obligation was
against the manifest weight of the evidence. She asserts that the court erred because (1) the
change in circumstances occurred before and not after April 13, 2015, when the court entered
the dissolution judgment, and (2) A&N had been profitable, and thus respondent terminated
it in bad faith. We see no merit to either assertion.
¶ 24 We turn to the first assertion of error. A trial court’s finding of a substantial change in
circumstances may not be disturbed on appeal unless it was against the manifest weight of
the evidence. In re Marriage of Armstrong, 346 Ill. App. 3d 818, 821 (2004). For the reasons
that follow, we hold that the finding was not against the manifest weight of the evidence.
¶ 25 Initially, we note what petitioner does not argue. She does not contend that the evidence
failed to prove that respondent’s net income from January 29, 2016, on was substantially less
than what the trial court had found it was as of April 13, 2015. Indeed, she does not contest
the trial court’s finding that respondent’s net income was essentially his salary from Allstate.
Thus, she effectively concedes that, as of January 29, 2016, respondent’s child-support
obligation under the judgment far exceeded the statutory guideline of 32% of his net income.
(Whether the excessiveness resulted from respondent’s own bad-faith decision is a separate
issue, which we address next.) Thus, petitioner is not really contending, and cannot contend,
that the evidence of changed circumstances was insufficient to justify the reduction in
respondent’s obligation.
¶ 26 Indeed, petitioner is essentially arguing that respondent’s evidence of changed
circumstances was too good. She contends that the evidence proved that the change not only
occurred but occurred much earlier than respondent alleged—and that, for this reason, he did
not deserve relief. Thus, for example, had respondent proved only that he stopped receiving
income from A&N as of January 29, 2016, petitioner would concede now that there had been
changed circumstances. But, she contends, because he proved that he actually lost his source
of extra income in April 2013, he was not entitled to any relief. Thus, she asks us to reverse
the denial of the reduction in respondent’s obligation—not on the conventional ground that
1
In any event, petitioner’s motion was unsound. Respondent did not seek (or receive) any
modification of the original judgment. He sought only a prospective reduction in his child-support
obligation, based on his allegation that the circumstances of January 29, 2016, were substantially
different from those set out in the judgment. He did not request that the trial court reduce the amount of
child support due before January 29, 2016, and, of course, the court had no power to order such a
reduction (see 750 ILCS 5/510(a) (West 2014)).
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he had not become poorer, but on the novel ground that he had actually become poorer much
sooner.
¶ 27 The trial court rightly pointed out the absurdity inherent in petitioner’s argument. To
continue to impose an excessive and unaffordable obligation on respondent merely because
he overproved his case would deny him the relief that he would have received had his
evidence been less compelling. Moreover, such an absurd result was not compelled by either
statute or case law. Respondent did prove changed circumstances.
¶ 28 To obtain a reduction in his or her child-support obligation, a parent must prove that there
has been a substantial change in circumstances since the entry of the prior support order. 750
ILCS 5/510(a)(1) (West 2014); In re Marriage of Saracco, 2014 IL App (3d) 130741, ¶ 11.
Respondent did so. Crucially, the original judgment was res judicata as to the facts that
existed at the time of the judgment. See Nye v. Nye, 411 Ill. 408, 416 (1952); In re Marriage
of Heldebrandt, 301 Ill. App. 3d 265, 268 (1998). Thus, the trial court was bound by its
finding that, as of April 13, 2015, respondent’s net income was approximately $152,000. And
the evidence from the hearing on his petition amply demonstrated that, from January 29,
2016, on, his net income was far less—essentially, as the court found, the $74,000 in
take-home pay from Allstate. On this basis alone, we must conclude that the trial court’s
finding of a substantial change in circumstances was not against the manifest weight of the
evidence. Therefore, we need not consider the additional evidence of changed circumstances
that respondent notes, such as the increase in petitioner’s salary, her ownership of a luxury
automobile, and the presumption that the children’s expenses had increased with their ages
and the cost of living (see In re Marriage of Sweet, 316 Ill. App. 3d 101, 105 (2000)).
¶ 29 We turn to the second assertion of error. Petitioner contends that because the trial court
had found in the dissolution judgment that A&N had earned a net income of $78,000 in 2012,
and because respondent had deposited money into A&N’s account in early 2013, the trial
court erred in finding that he terminated the business in good faith. Thus, she contends, the
court should have imputed additional income to him.
¶ 30 We note that petitioner’s cursory argument cites neither pertinent pages of the record nor
any legal authority. Therefore, we consider it forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Jan.
1, 2016); Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991).
¶ 31 In any event, petitioner has not established error. She is correct that, to have his support
obligation decreased, based on a voluntary change in employment, the supporting parent
must prove that he made the change in good faith and not to evade his financial responsibility
to his children. Sweet, 316 Ill. App. 3d at 106. The trial court found that respondent’s
decision to close down A&N (essentially a change in employment) was made in good faith.
We cannot say that this conclusion was against the manifest weight of the evidence.
¶ 32 Petitioner notes the timing of respondent’s decision and the evidence of how much he
deposited into A&N’s bank account in 2012 and the first quarter of 2013. The trial court was
aware of this evidence, but it was also aware of, and entitled to credit, other evidence that
pointed to good faith. At the hearing that preceded the entry of the dissolution judgment, the
court received evidence that, in 2013, A&N made a profit of only about $1000, down from
$5510 in 2012. It also heard evidence that respondent had been spending 10 to 20 hours per
week on the business, in addition to his full-time employment with Allstate. Respondent
discontinued the business in light of his difficult financial condition, the depletion of his
retirement account, and the limitations on his activities with the parties’ children. Although
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the evidence did not all count one way or the other, there was sufficient ground for the court
to conclude that his decision to terminate A&N was made in good faith.
¶ 33 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 34 Affirmed.
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