In Re Marriage of Breitenfeldt

840 N.E.2d 694, 362 Ill. App. 3d 668, 298 Ill. Dec. 581, 2005 Ill. App. LEXIS 1328
CourtAppellate Court of Illinois
DecidedNovember 30, 2005
Docket4-04-0987
StatusPublished
Cited by22 cases

This text of 840 N.E.2d 694 (In Re Marriage of Breitenfeldt) 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 Breitenfeldt, 840 N.E.2d 694, 362 Ill. App. 3d 668, 298 Ill. Dec. 581, 2005 Ill. App. LEXIS 1328 (Ill. Ct. App. 2005).

Opinions

JUSTICE MYERSCOUGH

delivered the opinion of the court:

Petitioner, Teri Eileen Breitenfeldt, appeals the trial court’s denial of her petition to modify respondent, Richard Allen Breitenfeldt’s, child support obligations to the parties’ two children. We vacate the trial court’s order and remand with directions to modify respondent’s child support obligations.

I. BACKGROUND

The parties were married in May 1992 and have two children together, Cody (born November 18, 1992) and Kaitlyn (born March 11, 1995). On October 6, 1995, petitioner filed a petition for dissolution of marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 through 802 (West 1994)). On December 15, 1995, the trial court entered a judgment of dissolution of marriage and approved the parties’ marital settlement agreement and joint-parenting agreement. The marital settlement agreement provided, inter alia, that the parties would have joint custody of Cody and Kaitlyn and respondent would pay petitioner $350 per month for child support. The marital settlement agreement further provided:

“Husband, on or before April 15th of each year shall furnish Wife a copy of all W-2 forms or other evidence of his income for the prior year. Should an increase in child support then being paid be authorized said increase shall be retroactive to January 1st of that year. Wife, if requested by Husband, shall promptly furnish him copies of her W-2 forms for the prior year.”

On December 10, 1996, the parties agreed by stipulated order to void the joint-parenting agreement and give petitioner sole custody of the children. On May 13, 1997, petitioner filed a petition to increase child support, alleging respondent had received salary increases and that he should be required to pay half of the children’s schooling expenses. The record reflects entry of an order for withholding on August 18, 1997, indicating $80.77 per week to be withheld immediately from respondent’s employer.

On August 19, 2002, the Illinois Department of Public Aid (IDEA) intervened as the provider of payments to the children and requested redirection to itself of any child support payments made in the case. IDPA also filed a notice to withhold respondent’s income in the amount of $350 per month and a petition for modification of child support. On June 12, 2003, the court entered a uniform order for support, modifying the amount respondent was required to pay to $488.50 per month retroactive to January 1, 2002.

On March 31, 2004, petitioner filed a petition for modification, alleging that, since entry of the last modification, a substantial change in circumstances had occurred in that (1) respondent’s total income for 2003, computed in accordance with section 505 of the Act (750 ILCS 5/505 (West 2004)), reflects an average monthly income of between $3,000 and $3,500 for the year; (2) petitioner’s costs to provide for the children continue to increase as they grow older; (3) the children require orthodontia at an estimated cost of $5,000 each; (4) petitioner’s financial resources had been reduced as a result of her January 2004 divorce; (5) respondent had been relieved of most or all of his other debts as a result of filing bankruptcy; and (6) statutory standards for the minimum contributions toward the support of two children have increased.

On July, 6, 2004, the trial court held a hearing on the petition. At the hearing, petitioner called Heather Keigher, a payroll processor for respondent’s employer, to testify as to University Auto Park’s payroll system. Keigher testified sales associates such as respondent are paid in three different ways: (1) “draw,” (2) SPIFF (which the record does not define), and (3) commission. A draw, paid twice per month in the amount of $1,000, is essentially a salary but functions as an advance on commissions, since sales representatives are paid on a 100% commission basis. Therefore, respondent repays his draw to University Auto Park from his monthly commission.

Respondent’s payroll records also show income from sales SPIFFs, finance and insurance SPIFFs (F&I), and deductions for SPIFF advances. Keigher testified sales SPIFFs are akin to bonuses to reward employees for selling a vehicle. An F&I SPIFF is a similar reward from the dealership’s finance and insurance department. An employee who receives any kind of SPIFF can present it for immediate payment or have it put on his or her paycheck for that period. Either way, the SPIFF shows up on the payroll for that pay period as income, and the employee is taxed for the amount of the SPIFF. If the employee has already cashed the SPIFF, it is then deducted from the gross income for that period.

The third way respondent is paid is by commission. On cross-examination, Keigher explained the relationship between draw and commission as follows:

“A. The draw amount — okay. The way I understand it, um, you’ve got your — the 26 weeks of draw money, but when it comes to when you have your commissions that are once a month, that draw money is even deducted from that. *** [I]f they had a commission of 5000 and they had already gotten 1300 in their draw, they’ve already gotten that money, that’s deducted off of that and then they get their commission amount. And then, of course, that’s taxed.
Q. MR. BORICH [(respondent’s attorney)]: But, again, that’s all taxable?
A. Yes. Everything—
Q. Even though there’s a deduction, that’s all taxable?
A. Everything is taxable, yes.
Q. So, the draw amount and then the commission amount, um, even though they’re all taxable, that’s not an accurate reflection of actual income that the sales associate would receive? It’s not an accurate — it’s not accurate of what the sales associate would pocket in terms of money because you both have the draw that’s taxable and the commission that’s taxable, but then there is a deduction because you subtract one from the other?
A. Exactly.
Q. So, on a W-2 form, if with regard to the income that’s listed as taxable income, that would include both draw money and commission money?
A. Everything. Yes.”

To clarify the relationship between draw, SPIFFs, and commission, the trial court engaged in the following colloquy with Keigher:

“THE COURT: *** Okay. I’m just trying to figure out how this draw works in. So, we need to give you a better example. He has $26,000 in draw, and $25,000 in SPIFF’s—
THE WITNESS: Which is pretty high, but okay.
THE COURT: Okay. Just work with me here.
THE WITNESS: I know.
THE COURT: And $25,000 in commissions.
THE WITNESS: Okay.

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Cite This Page — Counsel Stack

Bluebook (online)
840 N.E.2d 694, 362 Ill. App. 3d 668, 298 Ill. Dec. 581, 2005 Ill. App. LEXIS 1328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-breitenfeldt-illappct-2005.