In re Marriage of Bianco

2020 IL App (4th) 190737-U

• Court: Appellate Court of Illinois
• Decided: February 25, 2020
• Docket: 4-19-0737
• Status: Unpublished

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 190737-U February 25, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender th the limited circumstances allowed NO. 4-19-0737 4 District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re MARRIAGE OF ) Appeal from the JASON R. BIANCO, ) Circuit Court of Petitioner-Appellant, ) Coles County and ) No. 08D135 LISA A. BIANCO, ) Respondent-Appellee. ) Honorable ) Brian L. Bower, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err by denying petitioner’s amended petition for modification of parenting time and petitioner’s petition for modification of child support.

¶2 Petitioner, Jason R. Bianco, appeals the Coles County circuit court’s September

26, 2019, order and challenges the court’s denial of (1) his February 2019 petition for

modification of parenting time and (2) his January 2019 petition for modification of child

support. We affirm.

¶3 I. BACKGROUND

¶4 Petitioner and respondent, Lisa A. Bianco, were married in March 1994 and had

two children, A.B. (born in June 1999) and C.B. (born in October 2003). In July 2008, petitioner

filed his petition for the dissolution of the parties’ marriage. On August 13, 2008, the circuit

court entered a judgment of dissolution of marriage, incorporating the parties’ marital settlement agreement and joint parenting agreement. Over the years, the parties have filed numerous

petitions addressing the care of the minor children. At the time of the orders at issue in this

appeal, A.B. was no longer a minor and not a part of the orders. Only the facts relevant to the

issues on appeal are set forth.

¶5 In March 2017, petitioner filed a petition for modification of child support based

on the facts A.B. was living with him and A.B. would be 18 and a high school graduate in June

2017. While the March 2017 petition was pending, petitioner filed a petition for modification of

custody in May 2018. In August 2018, petitioner filed a motion for determination of the overage

he has paid in child support due to A.B. reaching majority. In September 2018, respondent filed

a petition to modify parenting time.

¶6 On September 26, 2018, the circuit court held a hearing. The docket entry for the

hearing indicated an agreement between the parties had been reached. The parties also agreed to

a judgment in the amount of $15,094.84 against respondent for the overpayment of child support.

The judgment provided for interest to accrue “pursuant to statute at 9% per Annum.” The court

found petitioner’s new child support obligation was $258.69 per week to be reduced by $75.52,

which represented a credit towards the judgment against respondent.

¶7 On October 16, 2018, the circuit court entered the order for child support. The

parties filed a joint parenting plan, and on October 31, 2018, the court entered an order

approving the joint parenting plan. In December 2018, a new child support order was entered

due to respondent paying off the judgment against her.

¶8 In December 2018, petitioner filed a petition for modification of parenting time,

seeking residential custody of C.B. due to a degradation of the relationship between respondent

and C.B. In January 2019, petitioner filed a petition for modification of child support based on

-2- him receiving more than 146 overnight visits with C.B. per year under the October 2018

parenting plan. That same month, petitioner also filed a petition for adjudication of indirect civil

contempt asserting respondent was not complying with the October 2018 parenting plan.

Respondent filed a petition seeking a refund for overpayment of the judgment against her

relating to child support. The next month, petitioner filed an amended petition for modification

of parenting time, adding facts about an altercation between respondent and C.B. on December 6,

2018. Respondent filed a petition to modify parenting time, seeking to remove the right of first

refusal in the October 2018 parenting plan, which provided that, “[i]n the event the party having

parenting time is unavailable to be with the minor child for a period of three (3) hours or more,

the other parent shall be given first option of caring for the child during the period of

unavailability.”

¶9 On August 20, 2019, the circuit court commenced the hearing on all pending

petitions. Petitioner testified on his own behalf and presented the testimony of (1) Rachel

Finney, a former high school teacher of C.B.; (2) respondent, as an adverse witness; and

(3) Misty Bianco, petitioner’s wife. Petitioner also presented, inter alia, the deposition of

Theresa White, a counselor at the Hamilton Center, and a calendar depicting his days with C.B.

in 2018. Respondent testified on her own behalf and presented the testimony of (1) Michael

Shaffer, an assistant principal at C.B.’s school; (2) petitioner, as an adverse witness; and

(3) Christopher Lawson, respondent’s husband. Respondent also presented a calendar showing

the days she had C.B. in 2019. Additionally, the court conducted an in camera interview of C.B.

¶ 10 At the conclusion of the evidence, the circuit court allowed the parties to submit

written closing arguments. Both parties filed their closing arguments on September 19, 2019.

On September 26, 2019, the circuit court entered a written order (1) denying the petitions

-3- relating to parenting time brought by both petitioner and respondent; (2) denying petitioner’s

petition for adjudication of indirect civil contempt; (3) denying petitioner’s motion for

modification of child support; and (4) entering judgment in favor of petitioner and against

respondent for $44.10, which was an overpayment of child support. As to the parties’ petitions

for modification of parenting time, the court found neither party established by a preponderance

of the evidence a change in circumstances had occurred since the recitation of their joint

parenting agreement on September 26, 2018, which was filed in October 2018. Regarding

petitioner’s motion for modification of child support, the court also found the evidence did not

support a substantial change in circumstances subsequent to September 26, 2018. The court

further stated respondent’s loss of employment may have been a change in circumstances for

child support purposes but the court imputed respondent’s income to her based upon the conduct

that caused her termination from employment.

¶ 11 On October 23, 2019, petitioner filed a timely notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017). Accordingly, this court has

jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 12 II. ANALYSIS

¶ 13 A. Parenting Time

¶ 14 Petitioner contends the circuit court erred by denying his petition for modification

of parenting time. He addresses each of the best interest elements set forth in section 602.7(b) of

the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/602.7(b)

(West 2018)) and notes the circuit court did not address those factors in its order. Respondent

notes section 610.5(c) of the Dissolution Act (750 ILCS 5/610.5(c) (West 2018)) applies to

modifications of parenting time. She also appears to argue the circuit court properly found

-4- petitioner failed to show a substantial change in circumstances since the entry of the existing

parenting plan. In his reply brief, petitioner contends respondent misinterpreted section 610.5

and again argued the circuit court gave no indication it considered the best interest factors in

section 602.7(b). Thus, this issue is one of statutory interpretation, which we review de novo.

Accettura v. Vacationland, Inc., 2019 IL 124285, ¶ 11.

¶ 15 With statutory interpretation, our primary objective is to ascertain and give effect

to the legislature’s intent. Accettura, 2019 IL 124285, ¶ 11. Given its plain and ordinary

meaning, the statutory language itself provides the most reliable indicator of the legislature’s

intent. Accettura, 2019 IL 124285, ¶ 11. Our supreme court has stated, “ ‘It is a basic rule of

statutory construction that the words of a statute should be given their plain, ordinary[,] and

accepted meaning, unless to do so would defeat the legislative intent.’ ” Accettura, 2019 IL

124285, ¶ 11 (quoting Peoria Savings & Loan Ass’n v. Jefferson Trust & Savings Bank of

Peoria, 81 Ill. 2d 461, 468, 410 N.E.2d 845, 848 (1980)). This court does “not depart from the

plain language of the statute by reading into it exceptions, limitations, or conditions that conflict

with the expressed intent.” Accettura, 2019 IL 124285, ¶ 11.

¶ 16 Section 610.5 of the Dissolution Act (750 ILCS 5/610.5 (West 2018)) addresses

modifications of orders pertaining to minors in dissolution cases and provides in pertinent part as

follows:

“(c) Except in a case concerning the modification of any restriction of

parental responsibilities under Section 603.10, the court shall modify a parenting

plan or allocation judgment when necessary to serve the child’s best interests if

the court finds, by a preponderance of the evidence, that on the basis of facts that

have arisen since the entry of the existing parenting plan or allocation judgment or

-5- were not anticipated therein, a substantial change has occurred in the

circumstances of the child or of either parent and that a modification is necessary

to serve the child’s best interests.

***

(e) The court may modify a parenting plan or allocation judgment without

a showing of changed circumstances if (i) the modification is in the child’s best

interests; and (ii) any of the following are proven as to the modification:

(1) the modification reflects the actual arrangement under which

the child has been receiving care, without parental objection, for the 6

months preceding the filing of the petition for modification, provided that

the arrangement is not the result of a parent's acquiescence resulting from

circumstances that negated the parent's ability to give meaningful consent;

(2) the modification constitutes a minor modification in the

parenting plan or allocation judgment;

(3) the modification is necessary to modify an agreed parenting

plan or allocation judgment that the court would not have ordered or

approved under Section 602.5 or 602.7 had the court been aware of the

circumstances at the time of the order or approval; or

(4) the parties agree to the modification.”

This court has previously stated that, except under the circumstances set forth in section 610.5(e)

of the Dissolution Act, “a party seeking a modification must still show a substantial change in

circumstances to request a modification pursuant to section 610.5(c) of the Dissolution Act (750

ILCS 5/610.5(c) (West Supp. 2015)).” In re Marriage of O’Hare, 2017 IL App (4th) 170091,

-6- ¶ 28, 79 N.E.3d 712. We explained “[t]his provision evinces a desire to maintain continuity in

parenting plans, which is a policy this court has long favored.” O’Hare, 2017 IL App (4th)

170091, ¶ 28 (citing In re Marriage of Wycoff, 266 Ill. App. 3d 408, 409-10, 639 N.E.2d 897,

900 (1994)). That interpretation is consistent with the plain language of section 610.5.

¶ 17 Given section 610.5(e) of the Dissolution Act expressly provides for modification

without a substantial change in circumstances in four defined situations, the legislature intended

section 610.5(c) to apply to all other situations and for the court to only consider modification of

a parenting plan when a substantial change in the circumstances of the child or either parent has

occurred. See 750 ILCS 5/610.5 (West 2018). Thus, before the court considers whether the

modification is necessary to serve the child’s best interest, the court must determine whether the

movant has proved by a preponderance of the evidence a substantial change in circumstances has

occurred based on facts that have arisen since the entry of the existing parenting plan or were not

anticipated therein. See 750 ILCS 5/610.5(c) (West 2018). If the movant has met his or her

burden of showing a substantial change in circumstances, then the court addresses whether

modification is necessary to serve the child’s best interests. If the movant has not met his or her

burden of showing a substantial change in circumstances, then the court must deny the

modification petition.

¶ 18 In this case, the circuit court found petitioner had not proved by a preponderance

of the evidence a change in circumstances had occurred since the September 26, 2018, recitation

of the parenting agreement. Since the circuit court made that finding, it was required to deny

petitioner’s modification petition and did not need to address the best interests factors set forth in

section 602.7(b). Petitioner does not challenge the circuit court’s determination he failed to

prove a substantial change in circumstances, and thus we find the circuit court’s denial of his

-7- February 2019 amended petition for modification of parenting time was proper.

¶ 19 B. Child Support

¶ 20 Petitioner also contends the circuit court erred by denying his petition for

modification of child support because the October 2018 joint parenting plan increased his

parenting time with C.B. Respondent maintains the circuit court properly found a change in

circumstances had not occurred. In his reply brief, petitioner contends for the first time the

circuit court erred by finding a substantial change in circumstances did not occur. This court

reviews a circuit court’s modification decision for an abuse of discretion. In re Marriage of Izzo,

2019 IL App (2d) 180623, ¶ 26. “A court abuses its discretion when no reasonable person would

agree with the decision [citation] or when it bases its decision on an incorrect view of the law.”

Izzo, 2019 IL App (2d) 180623, ¶ 26.

¶ 21 Like modification of a parenting plan, the modification of a child-support

judgment is a two-step process. Izzo, 2019 IL App (2d) 180623, ¶ 25. The court first must find a

substantial change in circumstances has occurred, and second it must look to the statutory factors

to determine the new amount. Izzo, 2019 IL App (2d) 180623, ¶ 25. In this case, the circuit

court concluded the evidence did not support a substantial change in circumstances and thus did

not address the second step.

¶ 22 “A substantial change in circumstances typically means that the child’s needs, the

obligor parent’s ability to pay, or both have changed since the entry of the most recent support

order such that a modification of the support amount is warranted.” Izzo, 2019 IL App (2d)

180623, ¶ 25. “ ‘The burden of showing a substantial change in circumstances sufficient to

justify a modification of a child support award is on the party seeking the relief.’ ” Izzo, 2019 IL

App (2d) 180623, ¶ 25. Courts have found “[a] significant change in custodial arrangements, by

-8- itself, is sufficient to establish a substantial change that would justify the modification of child

support.” Izzo, 2019 IL App (2d) 180623, ¶ 28.

¶ 23 In this case, the circuit court found the evidence did not support a substantial

change in circumstances subsequent to the September 26, 2018, agreement that was filed in

October 2018. The court noted the termination of respondent’s employment could have been a

substantial change in circumstances, but the court chose to impute respondent’s income to her

based upon her conduct causing her termination from employment. Petitioner contends the

circuit court overlooked the fact that, prior to the entry of the October 2018 joint parenting plan,

petitioner did not have the requisite 146 nights under section 505(3.8) of the Dissolution Act

(750 ILCS 5/505(3.8) (West 2018)) to warrant a modification of support. Respondent notes

petitioner’s March 2017 petition for modification of child support was decided at the September

26, 2018, hearing, at which the circuit court also approved the parties’ modified joint parenting

plan. Thus, she argued the parties’ parenting time had not changed since the written orders that

resulted from the September 26, 2018, hearing.

¶ 24 Petitioner points to nothing in the record to indicate the October 2018 parenting

plan was not taken into consideration when establishing the amount of child support in 2018. As

respondent notes, the circuit court addressed the two issues at the same hearing in September

2018. The record on appeal lacks a report of proceedings for that September 2018 hearing. See

Ill. S. Ct. R. 323 (eff. July 1, 2017). As the appellant, petitioner had the burden to present a

sufficiently complete record of the proceedings in the circuit court to support his claim of error,

and thus we resolve any doubts that may arise from the incompleteness of the record against him.

See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). Additionally, when

the record is incomplete to address a claim of error, we presume the circuit court’s order was in

-9- conformity with law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 392, 459 N.E.2d at

959. The record before us does not refute the circuit court’s finding the evidence before it failed

to show a substantial change in circumstances subsequent to the September 26, 2018, agreement.

Accordingly, we find the circuit court did not abuse its discretion by denying petitioner’s motion

to modify child support.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the Coles County circuit court’s judgment.

¶ 27 Affirmed.

- 10 -