In re Marriage of Wengielnik

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2019 IL App (3d) 180533-UOrder filed December 3, 2019
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2019
In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
DENISE C. WENGIELNIK, ) Will County, Illinois.
)
Petitioner-Appellee, )
) Appeal No. 3-18-0533
and ) Circuit No. 12-D-1570
)
MATTHEW S. WENGIELNIK III, )
) Honorable Domenica Osterberger,
Respondent-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE SCHMIDT delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in finding no substantial change in
circumstances occurred.
¶2 Respondent, Matthew Wengielnik III, filed a motion to modify his child support obligation.
After hearing Matthew’s argument, the trial court granted a directed finding to petitioner, Denise
Wengielnik, finding no substantial change in circumstances had occurred warranting modification
of child support. We affirm.
¶3 I. FACTS
¶4 Matthew and Denise divorced in March of 2013. The parties entered into a joint parenting
agreement regarding their minor child. The parenting agreement provided Matthew with 82
overnights in 2016.
¶5 In December of 2016, the parties entered into an allocation of parenting responsibilities
and parenting plan judgment. Matthew received additional parenting time with the child as a result.
This change amounted to Matthew exercising 130 overnights in odd years and 148 overnights in
even numbered years.
¶6 In October of 2017, Matthew filed a petition to modify child support, stating there had been
a substantial change in circumstances warranting a modification. The circuit court held a hearing
on the motion on August 9, 2018. The arguments revolved around whether the increase in
Matthew’s parenting time constituted a substantial change in circumstances sufficient to modify
his child support obligation. Matthew averred that he need not show how the extra parenting time
impacted the financial matters of the parties, instead it was a logical presumption that additional
costs were inherent in the increase. He analogized the modification of child support to a
modification of parenting time, arguing that pursuant to appellate case law, a modification of
parenting time in the amount of 6% was found not to be a minor change. Applying that reasoning,
the trial court should find the slightly more than 15% average increase in parenting time between
odd and even years to be a substantial change in circumstances.
¶7 Matthew was the only individual who testified during the hearing. He stated that since the
allocation judgment, he had been exercising his parenting time in accordance with said judgment
and provided a calendar that evidenced his parenting time. Matthew made clear that he was not
exercising parenting time in excess of what was provided for in the allocation judgment. No
evidence was provided concerning any change in financial circumstances for either parent or
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change in the needs of the child. In fact, no financial information whatsoever was provided to the
court.
¶8 On opposing counsel’s motion for a directed finding, the circuit court opined,
“THE COURT: *** The substantial change in circumstances
contemplated by the modification to child support statute, insofar as it has
been addressed by the case law in my view, has not been changed in terms
of its use in the new child support statute.
In other words, there has been nothing to suggest to me that there
are different considerations for the substantial change in circumstances
whether you are under the old or new statute. And I will tell you, even if
you were here without a change in the statute, even if you had come in, you
know, in January of 2017 and said there was a substantial change in
circumstances merely because of the number of extra days that dad has, I
would not have found a substantial change in circumstances, wouldn’t have
done it, because you haven’t shown me how there is a substantial change in
circumstances that affects the child support issue.
I understand your argument about the Court’s assessment of a
substantial change in circumstances vis-a-vis the modification of parenting
time, and the trouble I have with that is that it is the same phrase but
different circumstances that are relevant to each of the statutes. So, in other
words, a substantial change in circumstances, insofar as modification of
parenting time is concerned, has to take into consideration different
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components than a substantial change in circumstances as it relates to child
support.
So[,] it is not an apple to apple comparison, it’s an apples to oranges
comparison. *** I find that a substantial change in circumstances—when
the substantial change in circumstances relates to a modification of child
support necessarily has to encompass a monetary issue, and you haven’t
supported any claim that the monetary issues have changed.”
¶9 The court granted the motion for a directed finding.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, Matthew argues the trial court abused its discretion in finding that the change
in parenting time alone did not constitute a substantial change in circumstances warranting a
modification in child support. Denise responds by pointing out that Matthew failed to provide the
trial court with evidence that showed how the modification of parenting time led to a substantial
change in circumstances and asks us to affirm the lower court.
¶ 13 As an initial matter, both parties advocate for the use of an abuse of discretion standard on
appeal. However, an abuse of discretion standard only applies in this context once a substantial
change is found by the trial court and a modification is granted or denied. In re Marriage of
Garrett, 336 Ill. App. 3d 1018, 1020 (2003). When the trial court finds that no substantial change
in circumstances has occurred, we review whether the manifest weight of the evidence supports
the finding. In re Marriage of Barnard, 283 Ill. App. 3d 366, 370 (1996). We can affirm the lower
court’s judgment for any reason apparent in the record. City of Champaign v. Torres, 214 Ill. 2d
234, 241 (2005).
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¶ 14 The Illinois Marriage and Dissolution of Marriage Act (Act) allows a trial court to modify
a child support obligation upon a showing of a substantial change in circumstances. 750 ILCS
5/510 (West Supp. 2017). Decisions regarding what is required to prove a substantial change in
circumstances for child support modification are plentiful. See In re Marriage of Adams, 348 Ill.
App. 3d 340, 343 (2004) (“To establish a substantial change in circumstances, the petitioner must
show an increase in the noncustodial parent’s ability to pay and an increase in the needs of the
child since the court’s previous order.”); see also In re Marriage of Turrell, 335 Ill. App. 3d 297,
307 (2002) (“The petitioning party must show both an increase in the child’s needs and the
supporting spouse’s ability to pay.”); In re Marriage of Rushing, 2018 IL App (5th) 170146, ¶ 34
(“To establish the change necessary to warrant an increase in support, a petitioner must show that
the child’s needs and the noncustodial spouse’s ability to pay have increased.”). Typically, a
substantial change in circumstances means the child’s needs, the nonmajority parent’s ability to
pay, or both have changed since the entry of the most recent support order. In re Marriage of
Verhines & Hickey, 2018 IL App (2d) 171034, ¶ 79. Nonetheless, a change in parenting time of a
certain nature can, based on the facts of the case, constitute a substantial change. See In re
Marriage of White, 204 Ill. App. 3d 579, 582 (1990) (where custody of child was transferred from
one parent to another, a substantial change had occurred); see also In re Marriage of Singleteary,
293 Ill. App. 3d 25, 35 (1997) (“[S]ome change in circumstances of any nature that would justify
equitable action by the court in the best interests of the child is required.” (Emphasis in original)).
A trial court has wide latitude in determining whether such a change in circumstances has occurred.
See In re Marriage of Riegel, 242 Ill. App. 3d 496, 498 (1993).
¶ 15 Matthew does not direct this court’s attention to any case law that supports the argument
he advances. Instead, he argues that “[t]he statute does not state, nor require, that there be a
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showing of a substantial change in financial circumstances.” As laid out above, although the term
is not defined in the statute it has been judicially construed. See Bragdon v. Abbott, 524 U.S. 624,
645 (1998) (when “judicial interpretations have settled the meaning of an existing statutory
provision, repetition of the same language in a new statute” is presumed to incorporate that
construction); see also In re Marriage of Mathis, 2012 IL 113496, ¶ 25 (“We assume not only that
the General Assembly acts with full knowledge of previous judicial decisions, but also that its
silence on this issue in the face of decisions consistent with those previous decisions indicates its
acquiescence to them.”). In addition, the trial court has wide latitude in deciding whether the
requisite change in circumstances has taken place. Marriage of Riegel, 242 Ill. App. 3d at 498. As
we discuss infra the fault with Matthew’s argument has nothing to do with statutory construction
and everything to do with the burden of proof placed upon him. Infra ¶ 18. The arguments on this
issue are without merit.
¶ 16 Matthew also cites to In re Marriage of O’Hare & Stradt, 2017 IL App (4th) 170091, for
the contention that under section 610.5(e)(2) of the Act (750 ILCS 5/610.5(e)(2) (West Supp.
2017)), a 6% increase was not considered a minor modification for purposes of parenting time. Id.
¶ 27. He then attempts to make the leap that such a consideration also applies to a trial court’s
decision regarding modification of child support where a 15% change in parenting time has
occurred. The trial court aptly recognized that this is “not an apple to apple comparison.” As was
pointed out in the lower court, the statute relating to a modification of parenting time requires a
court to entertain different considerations than the statute relating to a modification of support. See
750 ILCS 5/610.5(e) (West Supp. 2017); see also id. § 5/510.
¶ 17 Matthew goes on to state that “[i]f the law does not require DENISE to show how and
where she spends the child support she receives from MATTHEW, then the Trial Court should not
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require MATTHEW to prove how his increased time with the minor child either increases his ***
costs, or how DENISE’s *** costs have decreased[.]” Notwithstanding this argument, it was
Matthew’s burden to show a substantial change had occurred. In re Marriage of Saracco, 2014 IL
App (3d) 130741, ¶ 13. We find Matthew’s argument unpersuasive.
¶ 18 Troubling in this matter was the attempt to show a substantial change in circumstances via
the production of a calendar showing Matthew’s overnights and nothing else. There was no
discussion about how the change in parenting time impacted the parties from a financial
perspective or whether there was a change in the child’s needs. Without some evidence about either
of these issues, the trial court is left to guess who is shouldering the financial burden of raising the
child or whether the child would suffer detriment from a modification in support. While it may
seem implicit that an increase in parenting time automatically includes an increase in expenses for
the parent exercising additional time, trial courts are not in the position to make such bold
assumptions. See In re Marriage of Rash & King, 406 Ill. App. 3d 381, 388 (2010) (“A petition to
modify child support must be decided on the facts and circumstances of each case.”). Absent a
drastic change in parenting time, a mere increase in parenting time for one parent does not
necessarily result in the reduction of the financial burden associated with raising the child for the
other. See Marriage of White, 204 Ill. App. 3d at 581-82. In this matter, only presenting the court
with a calendar that evidenced Matthew was exercising additional overnights was insufficient to
establish a substantial change in circumstances. Matthew failed to carry his burden in this matter.
Accordingly, the trial court’s finding that no substantial change in circumstances occurred was not
against the manifest weight of the evidence.
¶ 19 III. CONCLUSION
¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
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¶ 21 Affirmed.
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