In re Marriage of Shores

2014 IL App (2d) 130151No. 2-13-0151
Opinion filed May 16, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
CLYDE W. SHORES, ) of Kane County.
)
Petitioner-Appellant, )
)
and ) No. 07-D-540
)
JANE SHORES, ) Honorable
) Katherine M. Moran,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
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
2014 IL App (2d) 130151speculative, 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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2014 IL App (2d) 130151¶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-
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2014 IL App (2d) 13015110 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
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
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2014 IL App (2d) 130151reimbursement 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
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2014 IL App (2d) 130151bonus 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.
¶ 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.
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2014 IL App (2d) 130151¶ 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.
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2014 IL App (2d) 130151¶ 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
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
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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2014 IL App (2d) 130151law 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)
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
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2014 IL App (2d) 130151***: 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
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2014 IL App (2d) 130151prior 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.
¶ 30 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
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
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2014 IL App (2d) 130151was 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.
¶ 31 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. ¶ 15. 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
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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2014 IL App (2d) 130151the 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.
¶ 32 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.
¶ 33 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.
¶ 34 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
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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2014 IL App (2d) 130151“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.
¶ 35 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 expectancy” 4—
4
The requirements for the husband to receive the bonus were that he remain with the
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2014 IL App (2d) 130151it 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.
¶ 36 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
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.
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2014 IL App (2d) 130151converted to cash, the value of the days is definite and certain, and therefore the court may
properly distribute that value. Id.¶ 37 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 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.
¶ 38 C. Characterization of Relocation Reimbursements
¶ 39 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
6
In both cases, the bonus was received after the marriage dissolution but arose from work
performance during the marriage.
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2014 IL App (2d) 130151child’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.
¶ 40 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.
¶ 41 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
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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2014 IL App (2d) 130151expenses 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.
¶ 42 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 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.
¶ 43 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
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2014 IL App (2d) 130151were 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
¶ 44 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
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.
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2014 IL App (2d) 130151section 505(a)(1) guidelines is not properly before us and is forfeited. Ill. S. Ct. R. 341(h)(7)
(eff. Feb. 6, 2013). 9
¶ 45 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).
¶ 46 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
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 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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2014 IL App (2d) 130151to 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.
¶ 47 III. CONCLUSION
¶ 48 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.
¶ 49 Affirmed in part and reversed in part; cause remanded.
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