In re Marriage of Mulvihill

2021 IL App (5th) 170474-U

• Court: Appellate Court of Illinois
• Decided: December 6, 2021
• Docket: 5-17-0474
• Status: Unpublished

Opinion

2021 IL App (5th) 170474-U NOTICE NOTICE Decision filed 12/06/21. The This order was filed under text of this decision may be NO. 5-17-0474 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of KAREN MULVIHILL, ) Madison County. ) Petitioner-Appellee, ) ) v. ) No. 12-D-672 ) DAVID MULVIHILL, ) Honorable ) Thomas W. Chapman, Respondent-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion in denying the motion to modify child support.

¶2 David Mulvihill appeals the circuit court’s denial of his motion to modify child support

and motion to reconsider. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 The parties were married on March 5, 1999, and two children were born of the marriage.

The circuit court entered a dissolution of marriage judgment on July 11, 2014. At that time, David

worked for Washington University and operated a business named Mulvihill Technologies, a sole

1 proprietorship owned by David. Karen Mulvihill was employed as an assistant principal by

Mascoutah CUSD 19.

¶5 For purposes of the child support obligation, the court noted that David’s monthly net

income from Washington University was $5385.04. Tax records revealed David’s annual earnings

from Mulvihill Technologies as $12,930 in 2011, $4720 in 2012, $4320 in 2013, and $500, to date,

in 2014. After considering the overall functioning of Mulvihill Technologies, the court found

David earned $4200 per year in net income from that enterprise, bringing his total monthly net

income to $5735.04. The court determined the statutory percentage of 28% of David’s net income

for his two children was appropriate to meet the financial needs of the children (see 750 ILCS

5/505(a)(1)-(2) (West 2014)) and ordered David to pay $1605.92 per month to Karen in child

support.

¶6 At the time of the original child support order, the Illinois Marriage and Dissolution of

Marriage Act (Act) required courts to utilize a percentage-of-obligor-income model to compute

the child support obligation. See id. § 505(a)(1). Pursuant to the Act in 2014, a noncustodial parent

with two children was required to pay 28% of his net income to the custodial parent. Id.

Subsequently, Public Act 99-764 (eff. July 1, 2017) and Public Act 100-15 (eff. July 1, 2017)

amended the Act to require an “income shares” model, effective July 1, 2017. Under this model,

the court computes child support obligations by determining the parents’ percentage shares based

off their combined monthly net income. Pub. Act 100-15 (eff. July 1, 2017) (adding 750 ILCS

5/505(a)(1.5)).

¶7 On July 6, 2017, David emailed Karen, informing her that he would be filing for modified

child support payments due to the upcoming eighteenth birthday of one of their children. The email

noted, “The law has changed with regard to support calculations ***. In order to perform the

2 calculations for the court I require your July paycheck details (because both incomes are used in

the calculation).” The next day, Karen responded, stating that she would send her most recent pay

stub and that her attorney “said that the new law is not considered reason enough in and of itself

to modify child support.”

¶8 On July 28, 2017, David filed a motion for modification of child support. David alleged

that as of July 25, 2017, he ceased doing business under the assumed name of Mulvihill

Technologies, creating a significant change in financial status that warranted a child support

review. The motion listed David’s monthly gross income as “$9,970, a 25% increase from what

was used to calculate child support in the Dissolution of Marriage,” and Karen’s monthly gross

income as $6727. Because of the closure of Mulvihill Technologies and the increase of his income

from Washington University, the motion argued that David’s financial status significantly changed

warranting child support review. Based on the parties’ current monthly income and 50/50 custody,

the motion requested, inter alia, that David’s child support be lowered to $259.58. David attached

a supplementary certificate, filed in Madison County on July 25, 2017, that indicated that David

ceased doing business under the assumed name of Mulvihill Technologies. David also attached

the “Shared Physical Care Support Obligation Worksheet” (worksheet), taken from the Illinois

Department of Healthcare and Family Services website, that he filled out using the parties’ updated

monthly gross income. The worksheet calculated David’s child support obligation as $259.58.

¶9 On August 31, 2017, a hearing was held on David’s motion to modify child support. From

the outset, David explained that he recalculated his obligation, using the worksheet, because the

paycheck submitted to him by Karen was incorrect. He therefore clarified that the correct child

support obligation for him according to the new law was $340.45.

3 ¶ 10 Karen testified, inter alia, that David filed the motion to modify only to take advantage of

the amendment to the Act. In support of her position, Karen relied on David’s July 6, 2017, email.

David contended that his motion was not based on the change in law. He argued that he intended

to file the motion on the basis that his daughter was turning 18 and, in researching that issue, he

realized the amendment would apply if the motion was granted. David further explained that, after

researching the issue, he decided to file the motion only on the basis of the change in his finances.

¶ 11 On September 7, 2017, the court entered an order denying David’s motion to modify child

support. The court found David’s underlying reason for filing the motion to modify child support

was his belief that the change in the statute would yield him the benefit of a decreased child support

obligation. It reasoned the timing of David’s motion and email, as well as his request for a lower

child support obligation based on an increased income, led to the conclusion that the statutory

change was the reason for filing for modification.

¶ 12 The order stated that the court viewed the motives for filing the modification “to the extent

they shed light on the credibility of movant in connection with the implicit issue of good faith

attendant to a claimed decrease in income.” The court reasoned that David’s July 6, 2017, email

said nothing about the dissolution of his business, which called into question his decision to close

his business. The court found David’s alleged reason to dissolve his business was not credible and

that his decision to dissolve his business lacked good faith and was voluntary.

¶ 13 Additionally, the court found a change in circumstances under the statute was not proven.

It stated:

“In any event, [David] did not prove that either the increase in his income at

Washington University would result in a significant enough change to be

consequential under the new guidelines, or that the decrease in income, if any, from

4 the closing of his side business, would result in a significant enough change to be

consequential under the new guidelines. ***

***

*** It may very well be the case that [David’s] income went up more at Wash

U than it went down when he voluntarily shut down his business. [David] chose not

to submit sufficient facts on the particulars of his recent income, if any, related to

the business, and his motion can therefore can [sic] only properly be denied.

*** There was no evidence that [David] shut down his business in July 2017,

or that his income from Wash U went up specifically in July 2017, but it is the case

that the statutory change took place in July 2017, and that was when [David] was

motivated to act.

Regardless of the real reason or motivation of [David] for claiming changed

circumstances, and the extent that such sheds light on his good faith in terminating

his side business, there was insufficient proof of changed circumstances within the

meaning of the law.

*** [David] having presented no (or insufficient) cognizable evidence of a

substantial change in circumstances since the last relevant order warranting a

modification of child support, the court hereby denies the petition to modify child

support.”

¶ 14 On September 27, 2017, David filed a motion to reconsider modification of child support.

The motion claimed that David did not know how the change in law would impact his support

5 obligations because the law required income from both parents to complete the calculation and he

did not have Karen’s income at the time of his July 6, 2017, email. David alleged that he “never

wrote, said or implied that the reason [he] was filing was because the law changed.” (Emphasis in

original.) Rather, he stated his intent to file for modification was based on his mistaken belief that

his daughter’s eighteenth birthday would change his child support obligation. The subsequent

statement that the new law would apply was an incidental fact.

¶ 15 The motion further alleged that David did not have any income from Mulvihill

Technologies over the last three years, in large part due to the time needed to prepare for these

court proceedings and an appeal from a previous order. David further asserted that, despite the

court’s contention, the increase in his Washington University income and decrease from the

closure of his business was not net zero. The motion provided a table that indicated that David

received no income from Mulvihill Technologies in 2014 and 2017 and received a 24.6% monthly

increase in income from Washington University between 2014 and 2017. Citing In re Marriage of

Kowski, 123 Ill. App. 3d 811, 814 (1984), David contended a net change of 24% was a substantial

change warranting modification of child support. The motion requested, inter alia, that the court

reconsider lowering David’s child support obligation to $340.45.

¶ 16 David attached several documents to his motion to reconsider. Among those documents

were several of David’s tax returns. His 2014 tax return showed that David earned $87,375 from

Washington University, and Mulvihill Technologies lost $956 in 2015 and $1153 in 2016. An

August 2017 paycheck revealed David received $10,334,02 in monthly gross income. An email

from Washington University’s director of operations revealed that David received a 4.25% salary

increase in July of 2017, raising his yearly salary to $124,728.27. Another August 2017 paycheck

6 revealed Karen received $6375 in monthly gross income. David also attached an updated

worksheet that calculated his child support obligation to $340.45.

¶ 17 To support his allegation that he attempted to make Mulvihill Technologies successful and

closed it in good faith, David attached a letter from Krishagni LLC that stated the chief executive

officer met with David in early May 2017 to discuss potential opportunities to collaborate;

however, “[d]iscussions did not materialize into any work performed.” He also attached an email,

dated 2014, requesting work from a Dave Gibson.

¶ 18 The court denied David’s motion to reconsider. This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, David argues that the court erred in finding that (1) his motivation to file the

motion to modify was based on the statutory change in calculating child support, (2) he closed his

business in bad faith, and (3) he failed to prove his income substantially changed. Even assuming

David’s contentions are correct, we nevertheless affirm the court’s decision by applying well-

established law. In re Marriage of Harms, 2018 IL App (5th) 160472, ¶ 36 (“We may affirm the

court’s ruling on any basis appearing in the record, even if it was not the basis relied upon by the

court.”).

¶ 21 Under section 510(a) of the Act, the court may grant a petition for modification of an order

“upon a finding of a substantial change in circumstances.” 750 ILCS 5/510(a) (West Supp. 2017).

The court’s determination regarding a substantial change in circumstances is given great deference

and will be reversed only where no reasonable person would agree with it. In re Marriage of

Connelly, 2020 IL App (3d) 180193, ¶ 13; In re Marriage of Garrett, 336 Ill. App. 3d 1018, 1020

(2003).

7 ¶ 22 The determination of whether a substantial change in circumstances was shown is a fact

specific inquiry that is not rendered to a precise formula. In re Marriage of Solecki, 2020 IL App

(2d) 190381, ¶ 73. Not all changes warrant modification. In re Marriage of Connelly, 2020 IL App

(3d) 180193, ¶ 18. “Changes in circumstances warrant modification of child support only when

‘equitable action by the court’ is necessary to protect the children’s best interests.” Id. (citing In re

Marriage of Singleteary, 293 Ill. App. 3d 25, 35 (1997)); In re Marriage of Solecki, 2020 IL App

(2d) 190381, ¶ 73. The party seeking modification has the burden to show there are substantial

changes in circumstances that justify modification of child support. In re Marriage of Verhines,

2018 IL App (2d) 171034, ¶ 51.

¶ 23 To illustrate that not all substantial changes warrant modification we look to In re Marriage

of Rash, 406 Ill. App. 3d 381 (2010). In that case, “there [was] no question that respondent had a

substantial change in his circumstances, in that he was permanently and totally disabled from

gainful employment as a result of a motor vehicle accident.” Id. at 388. However, this court found

that the lower court did not abuse its discretion in denying respondent’s petition to terminate his

support obligation where respondent’s income from his disability benefit was more than when he

was in the workforce, and respondent failed to show his obligations increased, his children’s needs

decreased, or mother’s income increased. Id. at 389.

¶ 24 Another example is In re Marriage of Verhines, 2018 IL App (2d) 171034, ¶¶ 92, 98, where

the Fourth District found there was no substantial change in circumstances to warrant a reduction

in child support although father’s income decreased from his good-faith retirement. The court

based its decision on the fact that father’s other assets were sufficient to pay the existing child

support obligation without jeopardizing father’s financial security. See id. ¶¶ 92-98. It noted that

in determining whether there has a been a substantial change in circumstances, the court “must

8 take a holistic view of the obligor’s financial position to determine whether he has the resources

to meet his existing obligation without unduly compromising his ability to meet his own needs.”

Id. ¶ 82.

¶ 25 In light of these decisions, we find an increase in David’s income—alone—does not justify

a roughly 21% decrease in child support, regardless of David’s motivations in filing his motion to

modify and good faith in closing his business. David did not allege that his financial obligations

increased, his children’s needs have decreased, or Karen’s income increased. Rather, he relied

solely on the changed circumstances of a roughly 25% increase in his monthly gross income to

support his petition to modify. By alleging only an increase in his income, David shows that he

remains capable of meeting his existing child support obligation without compromising his

financial position. David fails to provide—and this court has not found—authority supporting the

contention that an increase in obligor’s income warrants equitable action from the court to decrease

the child support obligation. Accordingly, the court did not abuse its discretion in denying David’s

motion to modify.

¶ 26 III. CONCLUSION

¶ 27 David’s alleged significant increase in income did not constitute a substantial change in

circumstances that warrant a decrease in child support. We therefore affirm.

¶ 28 Affirmed.