2019 IL App (2d) 181030-U No. 2-18-1030 Order filed December 19, 2019
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). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In Re THE MARRIAGE OF ) Appeal from the Circuit Court KIMBERLY CONTI MICA, ) of McHenry County. ) Petitioner-Appellee, ) ) and ) No. 16-DV-773 ) FRANK CONTI MICA, ) Honorable ) Mark R. Facchini, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Justices McLaren and Zenoff concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in determining appellant’s income for the purpose of calculating maintenance and child support. Appellant’s contention that the trial court’s formula for calculating maintenance and child support was inequitable is purely argumentative and not in harmony with supreme court rule 341(h)(7).
¶2 Respondent, Frank Conti Mica (Frank), appeals the trial court’s entry of judgment for
dissolution of marriage from petitioner, Kimberly Conti Mica (Kimberly). Frank contends the trial
court erred in its determination of his income for maintenance and child support purposes. Frank
also argues that the trial court’s determination of maintenance and child support is inequitable 2019 IL App (2d) 181030-U
because it failed to account for years in which he earns less than his calculated annual average
income. For the reasons that follow, we affirm the trial court’s findings.
¶3 I. BACKGROUND
¶4 On September 26, 2016, petitioner, Kimberly Conti Mica, filed a petition for dissolution
of marriage from respondent, Frank Conti Mica. The parties were married on October 12, 1990,
and had four children. During the pendency of the dissolution proceedings, only their youngest
child remained a minor while residing in the marital home. Relevant here, Kimberly’s petition
sought joint custody and control of the minor child, as well as reasonable maintenance and child
support. Frank filed his answer to Kimberly’s petition on November 4, 2016, as well as his own
counter-petition for dissolution of marriage. Frank’s petition sought to bar both parties from
maintenance and allocate parental responsibilities and parenting time in accordance with the best
interests of their minor child.
¶5 Trial was held over several dates between June 6 and September 18, 2018. At trial, Frank
testified that he and Kimberly remained living in the marital home with all four of their children.
Following the breakdown of the parties’ marriage in 2016, Frank and Kimberly communicated
through the children by relaying messages to one another or by texting via phone.
¶6 Frank has been self-employed as the owner of Conti Construction Consulting, Inc. since
2011. He described himself as “a nonself-performing general contractor, project manager,
consultant, whatever.” Frank is the lone employee of his company. He testified that he pays himself
through “executive draws” 1 and personal expenses paid for by his business. He previously used a
1 Based on the Frank’s testimony and the evidence introduced at trial, executive draws describe money that Frank withdraws from Conti Construction and transfers to himself. These are not to be confused retained earnings as the bank statements introduced showed that Conti Construction’s
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payroll service to release paychecks when he needed money but stopped some time ago as “it was
more of a hindrance than a help” to pay himself in that manner. All of the executive draws that
Frank writes to himself from his business are deposited into his personal Chase checking account.
To determine his income at the end of each year, Frank testified that he takes his business receipts
and assembles the transactions. He then subtracts the business expenses and accounts for the
executive draws.
¶7 Frank testified that his 2016 joint income tax return reflected his own personal business
income as $243,225. He agreed that the amount he reported on his tax return does not reflect the
total including the executive draws he takes from the business throughout the year. Frank’s income
tax returns showed the following business income amounts: 1) $258,713 in 2012; 2) $158,104 in
2013; 3) $274,965 in 2014; 4) $161,639 in 2015; 5) $243,225 in 2016; and 6) $297,384 in 2017.
¶8 Frank’s bank statements for 2016 showed that he took draws totaling $273,000. In 2017,
Frank took draws totaling $327,400. In 2018, through July, he had taken draws totaling $117,600.
¶9 Frank testified that one of the major customers of his business is MB Financial Bank. When
he started doing work for MB Financial Bank, he was required to use union subcontractors to
perform the jobs. At the beginning of 2017, MB Financial made the decision to use nonunion
subcontractors, which reduced the amount of jobs Frank was offered as his relationships with
subcontractors were primarily those of the union variety. Then, at the end of 2017, MB Financial
started using union subcontractors again, allowing Frank to successfully bid on new jobs.
Subsequently, MB Financial was taken over by Fifth Third Bank. Frank claimed that the jobs that
he would normally bid for MB Financial stopped being offered.
business checking account balance was $1,395.48 at the end of 2016, and $2,100.08 at the end of 2017.
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¶ 10 Frank acknowledged that he has other long-term clients in addition to MB Financial. At
the time of his testimony, Frank had been awarded jobs throughout 2018, had one job ongoing,
two jobs starting that week, and anticipated being awarded several others by the end of the year.
He said that he could not reliably estimate what his 2018 income would ultimately be.
¶ 11 Kim testified at trial that she has been employed by Motorola Solutions, Inc. since 2011.
Relevant here, her starting salary in 2011 was approximately $40,000, and her current yearly gross
income is $51,884.14.
¶ 12 On November 7, 2018, the trial court issued its incredibly thorough, 85-page decision and
order. Regarding the issues raised in this appeal, the trial court found as follows:
“The Court finds that Frank’s income from Conti Construction is uncertain as to
amount and cannot be expressed solely in an exact dollar amount. Therefore, the Court will
average Frank’s projected 2018 income with his 2012 through 2017 income to create a
base amount of gross income for the purpose of maintenance. In addition, Frank shall pay
a percentage of his executive draws and personal expenses paid by the business in excess
of the base amount as and for his maintenance obligation to Kim.
[The] Court finds Frank’s gross annual income is $245,000 based on an average of
his 2012 through 2018 projected income. Frank argues that his income for purposes of
maintenance and child support should be imputed at $100,000 because business has slowed
with one of his larger clients, MB Financial.
According to Frank’s testimony, over the last three to four years, Conti
Construction has had a couple very good clients ***. According to Frank, MB began small
four years ago, which would be in 2014. In 2014, Conti Construction reported gross income
of $274,965. MB required union subcontractors. However, in early 2017, Conti
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Construction stopped getting MB Financial work because they began using non-union
subcontractors. During this time, Conti Construction continued to bid on MB Financial
jobs, but Conti Construction was not awarded any. In 2017, Conti Construction reported
gross income of $297,384 and Frank paid himself $345,069.47. At the end of 2017, MB
began using union subcontractors again and invited Conti Construction to bid jobs. At some
point, [Fifth Third] Bank took over MB Financial and bid invitations stopped. However,
bid invitations started again in the summer of 2018 and Conti Construction has since been
awarded two MB Financial jobs in July or August of 2018. Frank further testified that as
of September 17, 2018, Conti Construction was currently doing a job *** which will award
Conti Construction a $10,410 profit and starting two jobs next week would earn a $1,510
profit and a $5,950 profit. When asked what Frank believes he could reliably expect for
ongoing income, Frank testified he has no idea.
Historically, Conti Construction has earned average profits over $240,000. Frank
paid himself over $340,000 in 2017 and at least $273,000 in 2016. Frank asks the Court to
ignore historical earnings, which are underreported, current earnings which are also
underreported and on pace to exceed $200,000 given the three jobs referenced above, and
impute income to Frank of $100,000 annually. Frank’s argument further ignores that MB
Financial is not Conti Construction’s only good client. Even in years where work was slow
with MB Financial, 2014 and 2017, Conti Construction still reported income in excess of
$274,000. As such, the Court rejects Frank’s argument to impute $100,000 of income for
the purpose of setting his maintenance and child support obligation.
The Court finds that for purposes of calculating maintenance, Kim’s gross annual
income is $52,000.
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· The maintenance calculation pursuant to section 504(b-1)(1)(A):
· Frank’s gross annual income: 245,000 x .30 = $73,500
· Kim’s gross annual income: $52,000 x .20 = $10,400
· Preliminary maintenance amount: $73,500 - $10,400 = $63,100
· Combine income of $297,000 x .40 = $118,800 maintenance cap.
· Kim’s gross annual income plus preliminary maintenance = $115,100 < $118,800
maintenance cap. Therefore, the 40% maintenance cap does not apply.
· Therefore, Frank shall pay to Kim annual maintenance of $63,100 or $5,258.33
per month.
In addition to base monthly maintenance, Frank shall pay Kim 26% of any gross
income, including executive draws and personal expenses paid by the business, in excess
of $245,000 annually as maintenance (63,100/245,000 = 0.257). The 26% shall apply only
to the first $345,069.47 of gross income annually, because, based on the evidence,
$345,069.47 is the highest annual gross income Frank earned during the marriage. The
parties shall conduct an annual maintenance true-up by May 15th of each year, beginning
May 15, 2019.
The Court finds this is a long-term marriage, in excess of 25 years. The Court, in
its discretion, awards Kim permanent maintenance. 750 ILCS 5/504(b-1)(1)(B).
As such, the Court awards Kim permanent maintenance of $63,100 ($5,258.33 per
month) plus 26% of all gross annual income, including executive draws and personal
expenses paid by the business, in excess of $245,000 and up to $345,069.47.”
¶ 13 The trial court used $245,000 as Frank’s average annual income in determining his child
support obligation. Frank was ordered to pay Kim $1,194.38 per month in child support and an
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additional 11% of his net annual income above $126,276. On November 13, 2018, the trial court
entered its judgment for dissolution of marriage. Frank then filed this timely appeal.
¶ 14 II. ANALYSIS
¶ 15 Frank offers two contentions in this appeal. He contends that the trial court erred in
determining his income for the purposes of maintenance and child support. He also contends that
the formula used by the trial court to determine his payment of additional maintenance and child
support if his gross income exceeds $245,000 annually is inequitable.
¶ 16 Frank first argues that by averaging his income from 2012 to 2018, the trial court erred in
determining his income for the purposes of maintenance and child support as that determination
does not fairly reflect his income at the time of trial.
¶ 17 A trial court's findings as to a party's net income and the award of child support are within
its sound discretion and will not be disturbed on appeal absent an abuse of discretion. In re
Marriage of Pratt, 2014 IL App (1st) 130465, ¶ 22. Additionally, a trial court’s award of
maintenance will not be reversed absent an abuse of discretion. In re Marriage of Smith, 2012 IL
App (2d) 110522, ¶ 46. A court abuses its discretion where no reasonable person would have taken
the view adopted by the trial court. Id. Challenges to a trial court's factual findings regarding a
maintenance determination will not be reversed unless they are against the manifest weight of the
evidence. Id. Findings are against the manifest weight of the evidence where the opposite
conclusion is clearly evident or where the court's findings are unreasonable, arbitrary, and not
based on any of the evidence. Id.
¶ 18 Frank argues that the trial court erred in determining his income for maintenance and child
support purposes. He breaks his argument into two sub-arguments. First, he argues that the
evidence presented to the trial court illustrated a much lower income amount for the years 2017
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and 2018. Second, he argues that the trial court’s income-averaging approach to determine his
income for maintenance and child support was inappropriate. We will address each argument in
turn.
¶ 19 Frank testified that his income from January 2017 to September 2018 was $152,393,
resulting in an annualized income of $91,435. He also testified that he had experienced a decrease
in business during 2017 and 2018, resulting in his having to take jobs that produced smaller
amounts of income. However, the evidence available at the time of trial, aside from just Frank’s
testimony, supports the trial court’s determination of his income in those years.
¶ 20 The trial court found that Frank’s income was generated from executive draws and personal
expenses paid by his business. In 2017, Frank paid himself $327,400 in executive draws by check
and cash withdrawals, and $22,785.68 of Frank’s personal expenses were paid by Conti
Construction. His total gross income in 2017 was determined to be $345,069.47. Despite his
testimony that his year-to-date awarded work in 2018 was only $28,625 at the time of trial, the
evidence showed that, as of August 23, 2018, Frank had paid himself $119,600 in executive draws.
Conti Construction had paid $4,878 of Frank’s personal expenses by that date. The trial court
determined, based on those amounts, that Frank was on pace to gross $192,810.02 in 2018.
¶ 21 All of the amounts that the trial court used to determine Frank’s gross income in 2017 and
2018 are supported by the record. There is no evidence to show that he earned substantially less in
those years than in years prior, and certainly not substantially less than the trial court determined
based on the evidence provided. Frank’s argument on this issue seeks for this court to take his
testimony on his income as superior to that of the trial court’s meticulous findings to the contrary
based on voluminous evidence supporting those determinations. We will not do so. The trial
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court’s determinations of Frank’s income for the years 2017 and 2018 are well supported by the
evidence produced at trial.
¶ 22 Moving on to Frank’s second argument concerning errors in determining his income for
maintenance and child support, he avers that it was inappropriate to consider his past income trends
when his future income is uncertain. He attempts to find support for this argument through In re
Marriage of Schroeder, 215 Ill. App. 3d 156 (1991).
¶ 23 In Schroeder, the trial court determined respondent’s income for purposes of his child
support obligation by averaging the earnings of his funeral home proprietorship for the prior six
years (1984 through 1989), represented by income tax returns and a 1989 projected-income
statement prepared by respondent’s counsel. Schroeder, 215 Ill. App. 3d at 158. The trial court
found respondent’s average income to be $47,767 and assessed respondent’s monthly child support
obligation at $1,592 for his minor children per the contemporary statutory guidelines. Id. at 159.
¶ 24 The appellate court agreed with respondent that six-year old data could not reflect the then
current circumstances of the parties. Id. at 161. The court stated that “[w]hile it is appropriate to
consider prior years’ documentation to ascertain income trends when future income is uncertain,
we conclude deviations from reliable current income data require a compelling showing of a
definitive pattern of economic reversals.” Id. As respondent’s income from business profits had
substantially increased from year to year, and his 1989 projected-income statement raised factual
concerns to the court leaving the data unreliable, the most reliable evidence of respondent’s income
was the 1988 income tax return. Id. at 161-62
¶ 25 Turning to the facts of the present appeal, it strikes this court as somewhat odd that Frank
would want us to reverse the trial court’s income averaging approach to determine his fluctuating
income in favor of the method implemented in Schroeder. Like that case, Frank’s most recent
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year’s income (2018) was projected by the evidence available including his executive draws and
paid personal expenses up to August 23, 2018. Frank certainly takes issue with that approach and
believes his 2018 income to be substantially less due to the alleged downturns in his business
volume. If we were to say that the contested nature of that year’s income leads us to find the
evidence introduced as unreliable, per Schroeder we would take the last year of income supported
by the evidence introduced, or 2017. That would necessitate a reversal of the trial court’s
determination of Frank’s income at $245,000 for maintenance and child support. We would then
remand the matter to the trial court to calculate Frank’s income at the more reliable 2017 income
amount, or $345,069.47. But fortunately for Frank, the trial court’s income-averaging approach to
calculating his income was entirely reasonable.
¶ 26 As stated, a trial court’s determination of income for maintenance and child support
purposes is within the discretion of the trial court and will not be disturbed absent an abuse of
discretion. See supra ¶ 17. In situations where income fluctuates from year to year, income
averaging is an approved method to apply in determining current net income for the purpose of
establishing support obligations. In re Marriage of Garrett, 336 Ill. App. 3d 1018, 1025 (2003).
Income averaging may be applied in any case where it is appropriate, and there does not need to
be wild fluctuation before averaging may be applied. Garrett, 336 Ill. App. 3d at 1025. Therefore,
the trial court’s determination of Frank’s income for maintenance and child support, calculated by
averaging his prior years’ income, was not an abuse of discretion and is wholly supported by the
evidence in this case.
¶ 27 Finally, we come to Frank’s last contention. Frank contends that the trial court’s calculation
of maintenance and child support is inequitable. But his argument is unsupported by any citations
to relevant authority or any discernible argument aside from the proposition that Frank’s own
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maintenance and child support calculations would be better than what the trial court determined.
He would like implemented what he believes would be a more advantageous support obligation.
He would prefer that his support obligations be “recalculated to reflect a base income *** of
$100,000 and set additional support on amounts earned in excess thereof.” The gist of Frank’s
purportedly more equitable scheme seems to be its eschewing of the average income calculation
in favor a lesser amount as the trial court’s method has no safe guard for him in years in which his
income is lower than $245,000. We can certainly understand Frank’s position would undoubtedly
be of great benefit to him if his income for purposes of his support obligations were drastically
reduced. It may even incentive him to earn or report a lower income to keep his support obligations
to his liking. However, his arguments on this topic are waived.
¶ 28 Supreme Court Rule 341(h)(7) reads as follows concerning what the appellant’s brief must
contain:
“Argument, which shall contain the contentions of the appellant and the reasons therefor,
with citation of the authorities and the pages of the record relied on. Evidence shall not be
copied at length, but reference shall be made to the pages of the record on appeal where
evidence may be found. Citation of numerous authorities in support of the same point is
not favored. Points not argued are forfeited and shall not be raised in the reply brief, in
oral argument, or on petition for rehearing.” Ill S. Ct. R. 341(h)(7) (West 2018).
As Frank’s argument on this issue is not in harmony with the aforementioned rule, and is merely
presented as his preferred approach in income calculation, this argument is waived.
¶ 29 CONCLUSION
¶ 30 The judgment of the circuit court of McHenry County is affirmed.
¶ 31 Affirmed.
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