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).
2025 IL App (3d) 240641-U
Order filed October 23, 2025 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, NINA ITO, ) Du Page County, Illinois. ) Petitioner-Appellant, ) ) Appeal No. 3-24-0641 and ) Circuit Nos. 21-D-1006 & 21-OP-1262 ) TERUAKI ITO, ) ) The Honorable Respondent-Appellee. ) Maureen R. Riordan, ) Judge, presiding. ____________________________________________________________________________
JUSTICE HETTEL delivered the judgment of the court. Justices Anderson and Bertani concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred when it granted the respondent’s section 2-615 motion to dismiss the petitioner’s motion for increase in child support.
¶2 The petitioner, Nina Ito, filed a motion seeking an increase in the child support paid to her
by the respondent, Teruaki Ito. Teruaki filed a motion to dismiss pursuant to section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 2022)), which the circuit court granted. On appeal, Nina argues that the court erred when it granted Teruaki’s motion to dismiss. We reverse
and remand for further proceedings.
¶3 I. BACKGROUND
¶4 On May 28, 2021, Nina filed a petition for dissolution of her marriage to Teruaki. The
parties had two children together; Nina sought “temporary and permanent sole allocation of
parental responsibility of both children” and child support. Ultimately, the parties entered into a
marital settlement agreement (MSA). At the prove-up in court on September 20, 2023, Nina
testified that she had been making $92,000 per year, but then she went on disability and her income
dropped to $60,000 per year.
¶5 The MSA itself contains contradictory provisions regarding Nina’s income. Article II of
the MSA, which addressed “Financial Representations of the Parties,” contained the following
provision regarding the parties’ incomes:
“The wife was previously employed by Diageo and earned a gross annual salary of
$92,500, however, she was terminated from her employment on July 14, 2023. Prior to her
termination, Wife represents that her income would have been reduced to approximately
$60,000, thus, Wife’s income shall be imputed at $60,000 for purposes of calculating child
support. Wife shall have an affirmative obligation to apply for social security disability and
unemployment benefits, and to notify Husband of any changes in her current income or
employment status within 48 hours of the same.” (Emphases added.)
Article IV of the MSA addressed “Child Support and Child-related Expenses” and contained a
conflicting statement regarding Nina’s income. Specifically, in the provision containing the child
support calculation, the parties agreed in part that “[s]aid support is set pursuant to the statutory
guidelines and is based upon Husband’s current gross base income of $72,000 per year (using
2 standardized deductions), [and] Wife’s current disability income of $60,000 per year (using
standardized deductions).” (Emphasis added.)
¶6 The circuit court accepted the parties’ MSA and entered a judgment for dissolution on
September 20, 2023.
¶7 On March 28, 2024, Nina filed a motion for increase in child support. Nina’s motion
acknowledged that at the time of the dissolution judgment, she was in fact not receiving disability
income and the $60,000 figure was imputed. Of further relevance to this appeal, the motion
alleged:
“That significant changes have occurred making it necessary to modify said support
to grant Nina Ito significantly more in child support in that Nina Ito is no longer receiving
disability income and that she is unemployed, receiving no disability income and being
solely on unemployment income in the amount of $2,800.00 per month not being able to
work as Ms. Ito is still going to Mayo Clinic on a regular basis as a result of many ailments,
procedures and many needed surgeries.” (Emphasis added.)
¶8 In response, Teruaki filed a motion to dismiss pursuant to section 2-615 of the Code of
Civil Procedure (735 ILCS 5/2-615 (West 2022)). He alleged that no substantial change in
circumstances had occurred because Nina’s income was imputed in the MSA; therefore, “a change
in income is irrelevant.”
¶9 The circuit court held a hearing on Teruaki’s motion on June 27, 2024. Counsel for Teruaki
argued that it was known at the time of the dissolution judgment that Nina was disabled and
unemployed and that she agreed to imputed income on her own representations. Counsel for Nina
argued that the imputation was based on an assumption that she would continue to receive her
disability pay, but the reality was that her disability pay was terminated and her income now was
3 far less than $60,000. However, counsel for Nina concluded his argument by acknowledging that
the $60,000 figure was in fact an imputation based on what he and Nina believed she was going to
receive. Counsel also noted that Nina had applied for disability benefits six to eight months prior
to the June 2024 hearing, but her application was still pending.
¶ 10 At the close of the hearing, the court emphasized that Nina agreed to the imputation. The
court found:
“[a]s to whether or not her no longer receiving short term disability is—I respectfully don’t
find that that constitutes a significant change in circumstances, as the judgment specifically
states that she’s got an affirmative obligation to apply for Social Security Disability and
unemployment, and that the imputation, again, is based on her prior employment.”
¶ 11 Nina filed a motion for reconsideration. At the hearing on that motion, counsel argued in
part that Nina’s doctors would be able to testify at a later hearing to verify that Nina was unable to
work. The court denied Nina’s motion, and she appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, Nina argues that the circuit court erred when it granted Teruaki’s section 2-615
motion to dismiss. Specifically, she contends that the court erred when it found that no substantial
change in circumstances had occurred.
¶ 14 “A section 2-615 motion to dismiss tests the legal sufficiency of a complaint.” Patrick
Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. When a section 2-615 motion is at
issue, the circuit court must take as true all well-pled facts, and any reasonable inferences arising
therefrom, and construe the complaint in the light most favorable to the plaintiff. Jane Doe-3 v.
McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. We review a circuit
4 court’s decision on a section 2-615 motion to dismiss de novo. Jackson v. Michael Reese Hospital
and Medical Center, 294 Ill. App. 3d 1, 9 (1997).
¶ 15 “The standard of review for a section 2-615 motion to dismiss is whether the complaint
sufficiently states a cause of action, and the merits of the case are not considered.” Id.; see also
Urbaitis v. Commonwealth Edison, 143 Ill.
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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).
2025 IL App (3d) 240641-U
Order filed October 23, 2025 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, NINA ITO, ) Du Page County, Illinois. ) Petitioner-Appellant, ) ) Appeal No. 3-24-0641 and ) Circuit Nos. 21-D-1006 & 21-OP-1262 ) TERUAKI ITO, ) ) The Honorable Respondent-Appellee. ) Maureen R. Riordan, ) Judge, presiding. ____________________________________________________________________________
JUSTICE HETTEL delivered the judgment of the court. Justices Anderson and Bertani concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred when it granted the respondent’s section 2-615 motion to dismiss the petitioner’s motion for increase in child support.
¶2 The petitioner, Nina Ito, filed a motion seeking an increase in the child support paid to her
by the respondent, Teruaki Ito. Teruaki filed a motion to dismiss pursuant to section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 2022)), which the circuit court granted. On appeal, Nina argues that the court erred when it granted Teruaki’s motion to dismiss. We reverse
and remand for further proceedings.
¶3 I. BACKGROUND
¶4 On May 28, 2021, Nina filed a petition for dissolution of her marriage to Teruaki. The
parties had two children together; Nina sought “temporary and permanent sole allocation of
parental responsibility of both children” and child support. Ultimately, the parties entered into a
marital settlement agreement (MSA). At the prove-up in court on September 20, 2023, Nina
testified that she had been making $92,000 per year, but then she went on disability and her income
dropped to $60,000 per year.
¶5 The MSA itself contains contradictory provisions regarding Nina’s income. Article II of
the MSA, which addressed “Financial Representations of the Parties,” contained the following
provision regarding the parties’ incomes:
“The wife was previously employed by Diageo and earned a gross annual salary of
$92,500, however, she was terminated from her employment on July 14, 2023. Prior to her
termination, Wife represents that her income would have been reduced to approximately
$60,000, thus, Wife’s income shall be imputed at $60,000 for purposes of calculating child
support. Wife shall have an affirmative obligation to apply for social security disability and
unemployment benefits, and to notify Husband of any changes in her current income or
employment status within 48 hours of the same.” (Emphases added.)
Article IV of the MSA addressed “Child Support and Child-related Expenses” and contained a
conflicting statement regarding Nina’s income. Specifically, in the provision containing the child
support calculation, the parties agreed in part that “[s]aid support is set pursuant to the statutory
guidelines and is based upon Husband’s current gross base income of $72,000 per year (using
2 standardized deductions), [and] Wife’s current disability income of $60,000 per year (using
standardized deductions).” (Emphasis added.)
¶6 The circuit court accepted the parties’ MSA and entered a judgment for dissolution on
September 20, 2023.
¶7 On March 28, 2024, Nina filed a motion for increase in child support. Nina’s motion
acknowledged that at the time of the dissolution judgment, she was in fact not receiving disability
income and the $60,000 figure was imputed. Of further relevance to this appeal, the motion
alleged:
“That significant changes have occurred making it necessary to modify said support
to grant Nina Ito significantly more in child support in that Nina Ito is no longer receiving
disability income and that she is unemployed, receiving no disability income and being
solely on unemployment income in the amount of $2,800.00 per month not being able to
work as Ms. Ito is still going to Mayo Clinic on a regular basis as a result of many ailments,
procedures and many needed surgeries.” (Emphasis added.)
¶8 In response, Teruaki filed a motion to dismiss pursuant to section 2-615 of the Code of
Civil Procedure (735 ILCS 5/2-615 (West 2022)). He alleged that no substantial change in
circumstances had occurred because Nina’s income was imputed in the MSA; therefore, “a change
in income is irrelevant.”
¶9 The circuit court held a hearing on Teruaki’s motion on June 27, 2024. Counsel for Teruaki
argued that it was known at the time of the dissolution judgment that Nina was disabled and
unemployed and that she agreed to imputed income on her own representations. Counsel for Nina
argued that the imputation was based on an assumption that she would continue to receive her
disability pay, but the reality was that her disability pay was terminated and her income now was
3 far less than $60,000. However, counsel for Nina concluded his argument by acknowledging that
the $60,000 figure was in fact an imputation based on what he and Nina believed she was going to
receive. Counsel also noted that Nina had applied for disability benefits six to eight months prior
to the June 2024 hearing, but her application was still pending.
¶ 10 At the close of the hearing, the court emphasized that Nina agreed to the imputation. The
court found:
“[a]s to whether or not her no longer receiving short term disability is—I respectfully don’t
find that that constitutes a significant change in circumstances, as the judgment specifically
states that she’s got an affirmative obligation to apply for Social Security Disability and
unemployment, and that the imputation, again, is based on her prior employment.”
¶ 11 Nina filed a motion for reconsideration. At the hearing on that motion, counsel argued in
part that Nina’s doctors would be able to testify at a later hearing to verify that Nina was unable to
work. The court denied Nina’s motion, and she appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, Nina argues that the circuit court erred when it granted Teruaki’s section 2-615
motion to dismiss. Specifically, she contends that the court erred when it found that no substantial
change in circumstances had occurred.
¶ 14 “A section 2-615 motion to dismiss tests the legal sufficiency of a complaint.” Patrick
Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. When a section 2-615 motion is at
issue, the circuit court must take as true all well-pled facts, and any reasonable inferences arising
therefrom, and construe the complaint in the light most favorable to the plaintiff. Jane Doe-3 v.
McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. We review a circuit
4 court’s decision on a section 2-615 motion to dismiss de novo. Jackson v. Michael Reese Hospital
and Medical Center, 294 Ill. App. 3d 1, 9 (1997).
¶ 15 “The standard of review for a section 2-615 motion to dismiss is whether the complaint
sufficiently states a cause of action, and the merits of the case are not considered.” Id.; see also
Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991) (holding that “[t]he only matters to
be considered in ruling on [a section 2-615 motion] are the allegations of the pleadings
themselves”). In this case, the circuit court clearly considered the merits of Nina’s motion for
increase in child support despite the fact that the case was called only for consideration of Teruaki’s
2-615 motion to dismiss. This was improper.
¶ 16 Further, a section 2-615 motion to dismiss should be granted only if no set of facts could
be proven that would entitle the plaintiff to relief. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶
47. We acknowledge at this juncture that the MSA, certain pleadings filed in this case, and
arguments made by counsel for Nina in both the circuit court and before this court contained
contradictions regarding whether Nina was in fact receiving disability pay of $60,000 per year at
the time of dissolution. Nevertheless, it is undisputed that Nina’s motion for increase in child
support alleged, inter alia, that she was unable to work due to her physical ailments and that her
current unemployment income was considerably less than what had been imputed to her in the
MSA. Case law is clear that a change in the financial condition of the recipient of child support
can serve as the basis for a modification of the payee’s obligation. See, e.g., In re Marriage of
Pettifer, 304 Ill. App. 3d 326, 328 (1999) (holding that “[f]or a modification to occur, there must
be a change in the child’s needs, an increase in the father’s income, or a change in the financial
condition of the mother”). Nina’s complaint sufficiently stated a potential basis for modification
of child support.
5 ¶ 17 For the foregoing reasons, we hold that the circuit court erred when it granted Teruaki’s
section 2-615 motion to dismiss. See Nyhammer v. Basta, 2022 IL 128354, ¶¶ 24-25 (holding that
when a section 2-615 motion to dismiss is at issue, the court is to consider only the adequacy of
the pleadings, as opposed to the merits of the case). Nina’s complaint must be reinstated, and we
remand the case for further proceedings on the complaint.
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Du Page County is reversed and the cause is remanded
for further proceedings.
¶ 20 Reversed and remanded.