In Re Marriage of Ackerley

775 N.E.2d 1045, 333 Ill. App. 3d 382, 266 Ill. Dec. 973
CourtAppellate Court of Illinois
DecidedAugust 29, 2002
Docket2—01—0469, 2—01—0678 cons.
StatusPublished
Cited by43 cases

This text of 775 N.E.2d 1045 (In Re Marriage of Ackerley) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Ackerley, 775 N.E.2d 1045, 333 Ill. App. 3d 382, 266 Ill. Dec. 973 (Ill. Ct. App. 2002).

Opinions

JUSTICE GROMETER

delivered the opinion of the court:

Respondent, Robert Alan Aekerley, appeals a series of orders entered by the circuit court of Kane County arising out of litigation where petitioner, Terry Frances Aekerley, sought, inter alia, the enforcement of various provisions of the parties’ marital settlement agreement. Relevant to the instant appeal, the trial court (1) ordered respondent to pay a child-support arrearage in the amount of $90,975.41; (2) set respondent’s current child-support obligation at $3,000 per month; (3) found respondent in contempt for failing to comply with a provision of the marital settlement agreement; (4) awarded petitioner $2,300 for attorney fees incurred while seeking the enforcement of the agreement; and (5) denied respondent’s request to stay the enforcement of the judgment for the child-support arrearage. For the reasons that follow, we dismiss this appeal in part and otherwise affirm as modified.

I. BACKGROUND

On March 30, 1992, the circuit court entered a judgment dissolving the marriage between petitioner and respondent. This order incorporated a written marital settlement agreement. By the terms of the agreement, the parties were awarded joint custody of their son and daughter, and the children were to reside with petitioner. At the time of the dissolution, respondent was employed by the Krughoff Company (Krughoff) and earned a base annual salary of $62,000 plus bonuses. The agreement provided that respondent would pay a base amount of child support of $250 per week and additional child support equal to 25% of any “net bonus as defined by statute” received by him from his employer. It also contained the following provision: “For verification purposes, father shall provide mother with copies of W-2 forms or other tax related statements indicating the bonus he has received on or before January 31st of every calendar year for the preceding calendar year.” Respondent remained current on his weekly child-support payments, which increased to $420 in July 2000. He also paid petitioner a portion of his bonus each January through the year 2000.

In 1998, respondent became president of Krughoff. A written employment agreement was executed in April of that year and was periodically updated. The agreement provided for a base salary of $120,000 per year and an additional payment of $7,500 quarterly if Krughoff achieved at least that much profit during the quarter. Further, respondent was to receive year-end bonuses if certain profit levels were attained. The agreement also provided that respondent would lend a portion of his bonus back to the company. In 1998, the agreement specified a 25% loan. In 1999, this figure was reduced to 15%. Krughoff paid respondent 7% interest on these loans, which were memorialized by a series of notes. Krughoff was scheduled to start repaying these loans on December 31, 2002. Respondent’s income at the time of the trial was $3,211.34 per week or approximately $167,000 per year.

Each January from 1994 to 2000, respondent provided petitioner with a written explanation of how the amount of child support due on his bonuses was calculated. Respondent did not provide petitioner with W-2 forms or other similar documents generated for reporting income to the taxing authorities. The documents that were provided were apparently generated by someone at Krughoff. Except for the document explaining the 1994 bonus, which is handwritten, they were produced on paper bearing Krughoff s letterhead. None of them show respondent’s total income for the year. They do show the total bonus as well as deductions for state and federal income tax, social security tax (FICA), and dependent health insurance.

In addition to the bonuses disclosed in the January statements, respondent received bonuses in June 1999 and January 2000 that he did not disclose. In June 1999, respondent received a bonus in the amount of $58,870. He testified that he received this bonus in June because of an accounting error that was discovered when the company’s records were reviewed by an outside auditor who determined that the bonus should have been paid to him previously. Respondent testified that he asked a friend, who was an attorney, what he should do regarding this bonus and the friend told him he “shouldn’t worry about it.” In January 2000, respondent received two bonuses. The first was in the amount of $235,400 and was disclosed to petitioner. Respondent paid child support on this bonus. The second, in the amount of $145,655, was not disclosed to petitioner, and no child support was paid based on this bonus. Respondent explained that, on the advice of an individual who runs a concrete company, he came to believe that he was entitled to deduct sums that he lent to the company pursuant to his employment agreement from his bonuses for the purpose of calculating child support. Accordingly, he unilaterally deducted $145,000 from his 2000 bonus, as he had not deducted these sums for previous years. Respondent also acknowledged that he once asked that his weekly paycheck be increased instead of waiting to receive money due him in his yearly bonus and that on one occasion Roy Krughoff, the company’s chief executive officer, increased his weekly salary so that respondent would not have to wait for his bonus.

The trial court found respondent in contempt, ordered that he pay back child support due on his bonuses as well as $2,300 for petitioner’s attorney fees, terminated the bonus child-support system under which the parties had been operating, and fixed monthly child support at $3,000. The trial court found respondent in indirect civil contempt for failing to provide petitioner with his W-2 forms or other tax-related documents. The trial court reasoned that the plain language of the marital settlement contemplated that respondent would provide petitioner with a document that was “categorically equivalent to a W-2 statement” as opposed to the self-produced summaries that respondent had provided. The court also found that respondent bore an affirmative obligation to provide such documents, regardless of any action or inaction by petitioner, since the marital settlement agreement stated respondent “shall” provide them. The court observed that “shall” is a mandatory term. The court found respondent’s failure to tender these documents to be “willful and contemptuous.” Specifically, the court found that respondent was trying to create the appearance of complying with the agreement when, in fact, he was intentionally secreting information from petitioner.

The trial court then found that respondent was not entitled to deduct from his bonuses sums loaned back to Krughoff pursuant to his employment agreement. The court stated that it viewed these loans as something “in the nature of some kind of a tax deferred interest bearing account.” The court then calculated the amounts due on the bonuses respondent received from 1994 through 1999. The trial court deducted federal income taxes, state income taxes, and Medicare taxes from the bonuses before calculating the amount due. It did not deduct FICA or expenditures for dependent health insurance. The trial court also added income tax refunds back into the bonuses. The trial court adjusted the tax refunds by deducting amounts attributable to respondent’s second wife.

After calculating the arrearage for the disclosed bonuses for the years 1994 to 1999, the trial corut awarded petitioner $27,032.50 for the two bonuses that were not disclosed.

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Cite This Page — Counsel Stack

Bluebook (online)
775 N.E.2d 1045, 333 Ill. App. 3d 382, 266 Ill. Dec. 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-ackerley-illappct-2002.