In Re Marriage of Heil

599 N.E.2d 168, 233 Ill. App. 3d 888, 174 Ill. Dec. 622, 1992 Ill. App. LEXIS 1423
CourtAppellate Court of Illinois
DecidedSeptember 1, 1992
Docket5-91-0277
StatusPublished
Cited by26 cases

This text of 599 N.E.2d 168 (In Re Marriage of Heil) 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 Heil, 599 N.E.2d 168, 233 Ill. App. 3d 888, 174 Ill. Dec. 622, 1992 Ill. App. LEXIS 1423 (Ill. Ct. App. 1992).

Opinion

JUSTICE HENRY LEWIS

delivered the opinion of the court:

Petitioner, Connie R. Heil, appeals from a judgment of the circuit court of Saline County denying her petition for modification of child support. Petitioner contends that the court abused its discretion in denying the petition, because she did, in fact, show a “substantial change in circumstances” as required by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)) (hereinafter Dissolution Act).

During Douglas and Connie Heil’s marriage, two daughters were born. Angela Dawn Heil was born August 17, 1973, and Candace L. Heil was born January 5, 1976. The parties, Douglas and Connie Heil, were divorced on July 14, 1978. Their daughters were almost 5 years old and 2V2 years old, respectively. Under the terms of the judgment for dissolution, Connie was awarded custody of the two girls. The divorce decree required that respondent pay $25 a week per child for each of their two daughters. Additionally, respondent was required to pay 10% of the amount of undistributed net profits paid over to the respondent at the close of the business fiscal year from his men’s clothing store, Stricklin Men’s Wear (Stricklin), for the duration of the partnership. However, if the respondent became a majority and controlling shareholder of Stricklin, the 10% would increase to 20% of the profits. When the first of the minor children attained 18 years of age, died, or became emancipated, the percentage would be reduced to 10%. Respondent was also required to pay his daughters’ medical, dental, ophthalmological, and optometric expenses.

Petitioner filed her petition for modification of child support on October 4, 1989, stating that the respondent’s income, the costs of supporting the minor children, and the needs of the minor children had substantially increased since the judgment of dissolution.

On August 6, 1990, a hearing was held on the petition for modification. Both parties testified. The trial court entered an order on March 21, 1991, dismissing the petition for modification. More specifically, the court determined that petitioner failed to meet her burden of proof because she did not show “anything with respect to the financial circumstances of petitioner or the children.” Further, the court stated that “[t]he personal income of respondent does not appear to require an increase.” This appeal followed.

Petitioner contends that she did, in fact, demonstrate a substantial change in circumstances. We agree.

Section 510(a) of the Dissolution Act (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)) provides that a child support judgment can be modified only upon a showing of a “substantial change in circumstances.” (Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 801, 508 N.E.2d 531, 533.) After the threshold question of whether a substantial change in circumstances has occurred is answered, then and only then may the court determine the amount of the increase in child support. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) After the court finds a substantial change in circumstances under section 510(a), the same factors are considered in setting the amount of modified child support as were considered in determining the original amount under section 505. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) The relevant factors that the court is to consider are the following:

“(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living a child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” Ill. Rev. Stat. 1991, ch. 40, pars. 505(a)(2)(a) through (a)(2)(e).

The modification of child support rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Dall (1991), 212 Ill. App. 3d 85, 96, 569 N.E.2d 1131, 1138.) Abuse of discretion occurs “where no reasonable man would take the view adopted by the trial court.” (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) More recently, it has been stated that abuse of discretion occurs when a court’s decision is against the manifest weight of the evidence. In re Marriage of Stamberg (1991), 218 Ill. App. 3d 333, 336, 578 N.E.2d 261, 262.

In the case at bar, the trial court did not find that a substantial change in circumstances had occurred. We disagree. The following relevant facts were adduced at the hearing: at the time of the divorce, respondent was a partner and joint owner of Stricklin. In the mid-1980’s, respondent purchased his partner’s interest in Stricklin and became the sole owner. At the time of the divorce, respondent made $200 gross per week. After respondent became the sole owner, he received director’s fees which, in 1989, amounted to $4,250. Additionally, the respondent received $100 per week from his current wife’s company, Harrisburg Truss Company. Therefore, respondent’s undisputed gross income is as follows:

Stricklin salary $ 10,400
Stricklin director’s fee 4,250
Harrisburg Truss Company 5,200
Total $ 19,850

Hence, it is undisputed that respondent’s income has increased. The increased ability of the obligor parent alone can justify an increase in child support. (Legan v. Legan (1979), 69 Ill. App. 3d 304, 308-09, 387 N.E.2d 413, 416.) It should be noted that the Legan court stated, “Only some change in circumstances of any nature which would justify equitable action by the court in the best interests of the children *** is required.” (69 Ill. App. 3d at 308-09, 387 N.E.2d at 416.) Thus, without considering respondent’s benefits that he receives due to his self-employment, respondent’s income has almost doubled. At the time of the divorce, respondent’s gross income was approximately $10,400, and his undisputed gross income is now $19,850.

The primary difficulty in setting the proper amount of child support in this case is the difficulty in ascertaining respondent’s income. According to section 505(a) of the Dissolution Act, the minimum amount of support for two children is 25% of the supporting party’s net income as defined by statute. (In re Marriage of Lefler (1988), 185 Ill. App. 3d 677, 681, 542 N.E.2d 1, 4, appeal denied (1989), 128 Ill. 2d 664, 548 N.E.2d 1071.) “Net income” is defined as the total of all income from all sources, minus the following deductions:

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Bluebook (online)
599 N.E.2d 168, 233 Ill. App. 3d 888, 174 Ill. Dec. 622, 1992 Ill. App. LEXIS 1423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-heil-illappct-1992.