In re Marriage of Sorokin

2017 IL App (2d) 160885

• Court: Appellate Court of Illinois
• Decided: August 9, 2017
• Docket: 2-16-0885
• Status: Unpublished

Opinion

2017 IL App (2d) 160885 No. 2-16-0885 Opinion filed August 8, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court NATASHA SOROKIN, ) of Lake County. ) Petitioner-Appellant, ) ) and ) No. 13-D-834 ) ARON SOROKIN, ) Honorable ) Elizabeth M. Rochford, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Natasha Sorokin, appeals a postdissolution order granting the petition of

respondent, Aron Sorokin, to modify his child-support obligation. We affirm.

¶2 The parties were married in 1999 and have three children, all minors. On May 2, 2013,

petitioner petitioned to dissolve the parties’ marriage. On August 2, 2013, the trial court

awarded joint custody under a joint-parenting agreement, with petitioner as the primary

residential parent. On October 8, 2013, the court ordered respondent to pay temporary child

support of $1,700 per month, based on a finding that his net income, primarily from his

employment at Allstate, was $5,312.50 per month. The support amount was 32% of

respondent’s net income, in accordance with the guideline for supporting three children (see 750 2017 IL App (2d) 160885

ILCS 5/505(a)(1) (West 2012)). On February 25, 2014, petitioner petitioned to increase child

support, alleging that respondent received additional income from A&N, his computer-related

business. On July 14, 2014, the court increased respondent’s obligation to $1,950 per month,

finding that this was 32% of his net income, and reserved the issue of retroactivity.

¶3 On October 27, 2014, the court held a prove-up hearing at which respondent did not

appear, either in person or through counsel. As pertinent here, petitioner testified as follows.

Her annual income was $125,000 in base salary with a $20,000 bonus. To the best of her

knowledge, respondent’s annual income from Allstate exceeded $100,000. Documents obtained

in discovery showed that in 2012 respondent deposited approximately $280,000 into A&N’s

bank account. The parties’ joint tax return for 2012 listed the gross income from A&N at

$46,974. Respondent had filed an amended tax return for 2012 that listed the gross income from

A&N as $217,000; its cost of goods as $201,466; its business expenses as $10,000; and its net

income as $5,510. However, petitioner and her accountant had calculated gross receipts of

$265,493 and a net income of $198,267.

¶4 Petitioner testified further that, to her knowledge, respondent had not yet filed a tax return

for 2013. A document prepared by his accountant stated that, for 2013, A&N’s gross receipts

were $113,000 but its net income was only $1,000. Petitioner and her accountant had concluded

that, for less than all of 2013, A&N had gross receipts of $170,000 and a net income of $95,000.

¶5 Petitioner testified that, although the court increased respondent’s monthly child-support

obligation to $1,950, she had not received any payments at the new level. A&N had been

functioning since 2008 or 2009. Although respondent had represented that the business closed in

2013, the parties’ joint e-mail account still received inquiries from potential customers.

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¶6 On April 13, 2015, the court entered a dissolution judgment, incorporating the joint-

parenting agreement. As pertinent here, it provided as follows. Petitioner’s gross annual income

consisted of a base salary of approximately $125,000 and a bonus of $20,000. Respondent’s

gross annual income from Allstate was approximately $100,000, and his net income was

estimated at $74,000. Additionally, he was the proprietor of A&N, an active business.

¶7 The court stated that, in determining A&N’s income, it considered various sources. The

2012 joint tax return reported A&N’s gross receipts as $46,974 and profit as $396. Respondent’s

amended return listed A&N’s gross receipts as $217,579; its adjusted gross income as $16,113;

and its net income as $5,510. Petitioner’s testimony that respondent had underreported his

income was not credible. Respondent had not yet filed a tax return for 2013. Because he had not

complied fully with discovery or appeared at trial, it was difficult to determine A&N’s income.

The court found that, for 2012, A&N’s gross receipts were $265,000; the cost of the business

was $159,000; the gross income was $106,000; and the net income was $78,000. Thus,

respondent’s total net income was $152,000. Based on the 32% guideline, the court set his child-

support obligation at $4,053.33 per month, retroactive to February 28, 2014.

¶8 On January 29, 2016, respondent filed his petition to reduce child support. It alleged as

follows. Respondent no longer operated A&N. He received a gross annual salary of

approximately $97,000 from Allstate, but no other income. He could not afford to pay the

present level of child support. He requested that the court reduce his obligation and reallocate

the division of payments toward the children’s education, uncovered medical bills, and other

expenses.

¶9 On April 13, 2016, petitioner petitioned for a rule to show cause against respondent,

alleging that he was in arrears in paying child support and several marital debts. On June 28,

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2016, she moved per section 2-619(a)(4) of the Code of Civil Procedure (735 ILCS 2-619(a)(4)

(West 2014)) to dismiss respondent’s petition as barred by res judicata, alleging that it was in

reality a collateral attack on the dissolution judgment and not based on any change in

circumstances after April 13, 2015.

¶ 10 On June 28, 2016, and July 1, 2016, the trial court held a combined hearing on

respondent’s petition to reduce child support and petitioner’s petition for a rule to show cause.

Initially, the court denied petitioner’s section 2-619(a)(4) motion to dismiss, holding that it was

untimely and stating that respondent’s petition was not a collateral attack on the dissolution

judgment but was based on an alleged change in circumstances since then. The court then heard

evidence, which we summarize insofar as it is pertinent to this appeal.

¶ 11 Respondent testified on direct examination as follows. His current child-support

obligation was approximately $3,200 per month. He was also obligated to pay $67 monthly

toward the children’s medical expenses and 50% of their expenses for their tutoring, athletics,

and other extracurricular activities. In particular, his financial affidavit listed expenses of $403

per month for clubs and summer camps. He could not afford the current level of child-support

payments. He was spending far less on nonessentials than he had in 2013, and he no longer took

vacation trips with the children.

¶ 12 Respondent testified that, in 2015, his income from all sources was approximately

$96,000. According to his financial affidavit, his current gross income was approximately

$8,239 per month. He owed $13,000 in back federal taxes and had approximately $4,200 in

debts on three credit cards. His 401(k) account with Allstate contained $18,605. He had rolled

over his IRA from Walgreens, his prior employer, into an account with J.P. Morgan Chase; it

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currently contained $2,195. Respondent had no bank accounts other than his personal checking

account, which contained roughly $50 to $100.

¶ 13 Respondent testified that, in the spring of 2015, he was no longer running A&N, because

it was not making money despite the many hours he had been spending on it. He did not pay

A&N’s registration fees for 2014, 2015, or 2016. He had not attempted to sell the business,

because he did not think that it had any value.

¶ 14 Respondent testified on cross-examination as follows. He stopped running A&N in 2013,

“[r]ight around the time” that petitioner filed her dissolution petition. Notwithstanding the gross

receipts that he had deposited into A&N’s bank account in 2012, and the statements in the 2012

tax return and amended tax return, A&N had not been making any profit. Respondent had filed a

tax return for 2013; he agreed that the return listed $113,005 in gross receipts for A&N. He and

petitioner had had access to A&N’s account and had occasionally paid taxes and family expenses

out of it. However, his discontinuing A&N did not cut off the flow of money to pay these

expenses, as by then it was no longer generating income and the account balance was already

negative.

¶ 15 On redirect examination, respondent testified that A&N had bought computer parts and

resold them at a markup. In 2012, he spent 10 to 20 hours per week working on the business.

The company earned a profit of less than $50,000 that year, and in 2013 it earned less than it had

in 2012.

¶ 16 Petitioner testified that her annual base salary was $150,000. She was not paying a

mortgage, as the former marital home was in foreclosure. She drove a 2016 Lexus and had spent

$18,000 on vacations with the children in 2015. She and respondent contributed equally to the

children’s medical and extracurricular activities.

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¶ 17 At the close of the evidence, the court issued a rule to show cause as to some of the

unpaid obligations that petitioner had alleged. On respondent’s petition to reduce child support,

the court held as follows. The dissolution judgment had resulted from “[a]n ex parte trial” and

was based on petitioner’s evidence. In the judgment, the court had acknowledged that accurately

establishing respondent’s income had been difficult and that the court had relied on what little

evidence it had had. As to the evidence at the hearing on respondent’s petition, the court

credited his testimony that he was not now earning any income from A&N. It found further that

he had ceased operating A&N sometime before April 13, 2015. Further, he had acted in good

faith in terminating A&N, which had not been profitable.

¶ 18 The court acknowledged that the evidence had shown that the change in circumstances

had actually occurred before the court entered the dissolution judgment. Although the judgment

had found that, as of April 13, 2015, respondent’s annual net income from A&N was $78,000,

that had been incorrect. Thus, although respondent’s present net income was far less than what

the court found on April 13, 2015, the same had been true at the time of the judgment.

Nonetheless, the court would not deny respondent relief merely because the change in

circumstances had predated the judgment. “[F]or the Court to continue to impute [to] A&N

income when the evidence so clearly supports the finding *** that the A&N business is closed

would have an absurd result and would continue to create a situation where Respondent has an

absolute inability to pay *** the inflated child support number.”

¶ 19 The court reduced respondent’s support obligation to 32% of his present net income from

Allstate, based on the finding that he was no longer earning income from A&N. The reduction

was made retroactive to February 1, 2016. The court denied respondent any relief as to the other

child-related expenses; the parties would continue to divide these equally.

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¶ 20 On petitioner’s contempt petition, the court found respondent in contempt only as to his

failure to value and divide his 401(k) account, and it continued the matter for calculating the

value of the account and sentencing.

¶ 21 On August 8, 2016, the court entered an order embodying its findings and continuing the

cause for calculating child support. On September 23, 2016, it entered a judgment setting

respondent’s child-support obligation at $1,828 per month, based on a net income of $5,712.50

per month. The order also required respondent to purge his contempt by transferring the

remainder of the J.P. Morgan Chase IRA to petitioner. On October 21, 2016, petitioner filed an

appeal from the orders of August 8, 2016, and September 23, 2016.

¶ 22 On appeal, petitioner argues first that the trial court erred in denying her section 2-

619(a)(4) motion to dismiss respondent’s petition. We do not address the merits of this

argument. On an appeal, it is not proper to raise the denial of a section 2-619 motion to dismiss,

as the result of the denial merged with the final judgment from which the appeal was taken. In re

J.M., 245 Ill. App. 3d 909, 919-20 (1993); Davis v. International Harvester Co., 167 Ill. App. 3d

814, 818-19 (1988). 1 Therefore, we turn to petitioner’s remaining argument on appeal.

¶ 23 Petitioner contends that the judgment reducing respondent’s child-support obligation was

against the manifest weight of the evidence. She asserts that the court erred because (1) the

1 In any event, petitioner’s motion was unsound. Respondent did not seek (or receive)

any modification of the original judgment. He sought only a prospective reduction in his child-

support obligation, based on his allegation that the circumstances of January 29, 2016, were

substantially different from those set out in the judgment. He did not request that the trial court

reduce the amount of child support due before January 29, 2016, and, of course, the court had no

power to order such a reduction (see 750 ILCS 5/510(a) (West 2014)).

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change in circumstances occurred before and not after April 13, 2015, when the court entered the

dissolution judgment; and (2) A&N had been profitable, and thus respondent terminated it in bad

faith. We see no merit to either assertion.

¶ 24 We turn to the first assertion of error. A trial court’s finding of a substantial change in

circumstances may not be disturbed on appeal unless it was against the manifest weight of the

evidence. In re Marriage of Armstrong, 346 Ill. App. 3d 818, 821 (2004). For the reasons that

follow, we hold that the finding was not against the manifest weight of the evidence.

¶ 25 Initially, we note what petitioner does not argue. She does not contend that the evidence

failed to prove that respondent’s net income from January 29, 2016, on was substantially less

than what the trial court had found it was as of April 13, 2015. Indeed, she does not contest the

trial court’s finding that respondent’s net income was essentially his salary from Allstate. Thus,

she effectively concedes that, as of January 29, 2016, respondent’s child-support obligation

under the judgment far exceeded the statutory guideline of 32% of his net income. (Whether the

excessiveness resulted from respondent’s own bad-faith decision is a separate issue, which we

address next.) Thus, petitioner is not really contending, and cannot contend, that the evidence of

changed circumstances was insufficient to justify the reduction in respondent’s obligation.

¶ 26 Indeed, petitioner is essentially arguing that respondent’s evidence of changed

circumstances was too good. She contends that the evidence proved that the change not only

occurred but occurred much earlier than respondent alleged—and that, for this reason, he did not

deserve relief. Thus, for example, had respondent proved only that he stopped receiving income

from A&N as of January 29, 2016, petitioner would concede now that there had been changed

circumstances. But, she contends, because he proved that he actually lost his source of extra

income in April 2013, he was not entitled to any relief. Thus, she asks us to reverse the denial of

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the reduction in respondent’s obligation—not on the conventional ground that he had not become

poorer, but on the novel ground that he had actually become poorer much sooner.

¶ 27 The trial court rightly pointed out the absurdity inherent in petitioner’s argument. To

continue to impose an excessive and unaffordable obligation on respondent merely because he

overproved his case would deny him the relief that he would have received had his evidence

been less compelling. Moreover, such an absurd result was not compelled by either statute or

case law. Respondent did prove changed circumstances.

¶ 28 To obtain a reduction in his or her child-support obligation, a parent must prove that there

has been a substantial change in circumstances since the entry of the prior support order. 750

ILCS 5/510(a)(1) (West 2014); In re Marriage of Saracco, 2014 IL App (3d) 130741, ¶ 11.

Respondent did so. Crucially, the original judgment was res judicata as to the facts that existed

at the time of the judgment. See Nye v. Nye, 411 Ill. 408, 416 (1952); In re Marriage of

Heldebrandt, 301 Ill. App. 3d 265, 268 (1998). Thus, the trial court was bound by its finding

that, as of April 13, 2015, respondent’s net income was approximately $152,000. And the

evidence from the hearing on his petition amply demonstrated that, from January 29, 2016, on,

his net income was far less—essentially, as the court found, the $74,000 in take-home pay from

Allstate. On this basis alone, we must conclude that the trial court’s finding of a substantial

change in circumstances was not against the manifest weight of the evidence. Therefore, we

need not consider the additional evidence of changed circumstances that respondent notes, such

as the increase in petitioner’s salary, her ownership of a luxury automobile, and the presumption

that the children’s expenses had increased with their ages and the cost of living (see In re

Marriage of Sweet, 316 Ill. App. 3d 101, 105 (2000)).

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¶ 29 We turn to the second assertion of error. Petitioner contends that, because the trial court

had found in the dissolution judgment that A&N had earned a net income of $78,000 in 2012,

and because respondent had deposited money into A&N’s account in early 2013, the trial court

erred in finding that he terminated the business in good faith. Thus, she contends, the court

should have imputed additional income to him.

¶ 30 We note that petitioner’s cursory argument cites neither pertinent pages of the record nor

any legal authority. Therefore, we consider it forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,

2016); Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991).

¶ 31 In any event, petitioner has not established error. She is correct that, to have his support

obligation decreased, based on a voluntary change in employment, the supporting parent must

prove that he made the change in good faith and not to evade his financial responsibility to his

children. Sweet, 316 Ill. App. 3d at 106. The trial court found that respondent’s decision to

close down A&N (essentially a change in employment) was made in good faith. We cannot say

that this conclusion was against the manifest weight of the evidence.

¶ 32 Petitioner notes the timing of respondent’s decision and the evidence of how much he

deposited into A&N’s bank account in 2012 and the first quarter of 2013. The trial court was

aware of this evidence, but it was also aware of, and entitled to credit, other evidence that

pointed to good faith. At the hearing that preceded the entry of the dissolution judgment, the

court received evidence that, in 2013, A&N made a profit of only about $1,000, down from

$5,510 in 2012. It also heard evidence that respondent had been spending 10 to 20 hours per

week on the business, in addition to his full-time employment with Allstate. Respondent

discontinued the business in light of his difficult financial condition, the depletion of his

retirement account, and the limitations on his activities with the parties’ children. Although the

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evidence did not all count one way or the other, there was sufficient ground for the court to

conclude that his decision to terminate A&N was made in good faith.

¶ 33 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 34 Affirmed.

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