In Re Marriage of Tegeler

848 N.E.2d 173, 365 Ill. App. 3d 448, 302 Ill. Dec. 173, 2006 Ill. App. LEXIS 355
CourtAppellate Court of Illinois
DecidedApril 28, 2006
Docket2-05-0584
StatusPublished
Cited by17 cases

This text of 848 N.E.2d 173 (In Re Marriage of Tegeler) 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 Tegeler, 848 N.E.2d 173, 365 Ill. App. 3d 448, 302 Ill. Dec. 173, 2006 Ill. App. LEXIS 355 (Ill. Ct. App. 2006).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Petitioner, Paula L. Tegeler, n/k/a Paula L. James, appeals from the trial court’s orders relating to child support due from respondent, Virgil Scott Tegeler. On appeal, she argues that the trial court erred: (1) by ruling that a May 23, 2002, order was final; (2) by denying her petition, pursuant to section 2 — 1401 of the Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 2004)), requesting child support retroactive to August 1999; (3) in calculating respondent’s income; (4) by disallowing interest on back child support; and (5) by denying her attorney fees. We affirm in part, reverse in part, and remand.

I. BACKGROUND

Petitioner and respondent were married on September 19, 1981. They had two children during their marriage: Virgil Kyle (Kyle), born July 10, 1986, and Daniel Paul, born July 1, 1989. The parties’ marriage was dissolved on February 24, 2000, and an order dated May 23, 2002, addressed child custody, support, and property issues. The order incorporated the parties’ agreement that, although petitioner would be the children’s physical custodian, the children would equally divide their time with the parties. It also incorporated the parties’ agreement that they would share the children’s expenses and that there would be no exchange of child support.

The order was prepared by petitioner’s attorney and approved, as to its form, by respondent’s attorney. Although the order states that a joint parenting agreement would be filed with the order, no such agreement was attached or subsequently filed.

Over IV2 years later, on January 5, 2004, petitioner filed a petition to enter a joint parenting agreement or joint parenting order, and to determine child support. On January 28, 2004, petitioner filed a “Motion to Determine Child Support Arrearage.” On February 25, 2004, the trial court ruled that the May 23, 2002, order was final and that petitioner’s pending motions would be treated as requests for modification.

Petitioner filed a petition to modify child support on March 2, 2004. On April 2, 2004, she filed a motion to compel respondent to comply with discovery, and the motion was granted on April 15, 2004. Respondent was ordered to respond to petitioner’s written discovery requests by May 15, 2004. On May 21, 2004, petitioner filed a section 2 — 1401 petition, requesting, among other things, that she be awarded child support retroactive to August 1999, when she and the children allegedly left the marital home. She also moved for sanctions based on respondent’s failure to answer discovery. On May 27, 2004, the trial court granted petitioner’s motion for sanctions but reserved its ruling on the issue of the amount of attorney fees to be awarded. On June 24, 2004, it entered a mittimus order of indirect civil contempt against respondent; respondent purged the order on July 1, 2004, by fully responding to discovery.

On August 24, 2004, the trial court entered a joint parenting order granting the parties joint legal custody of Daniel, with petitioner continuing as the physical custodian (Kyle had since reached the age of majority). Respondent was to have visitation with Daniel three weekends per month during the school year and every other week during the summer.

The trial court conducted hearings on the issue of child support on October 14, 2004, and April 1, 2005. The trial court heard the testimony of the parties as well as of petitioner’s expert, a certified public accountant with a farming background. The testimony revealed that petitioner is employed as a “postmaster” in a post office, while respondent is a farmer whose sole income comes from farming.

During the hearings, the trial court stated that, for child support purposes, it would consider respondent’s income over the three-year period of 2002 through 2004. Respondent’s federal tax returns show that in 2002, he reported $441,614 in income and $427,485 in expenses (including $39,573 for depreciation), and paid $1,656 in taxes. In 2003, he reported $487,971 in income and $468,537 in expenses (including $33,486 for depreciation), and paid $2,422 in taxes. In 2004, respondent reported $528,456 in income and $514,648 in expenses (including $55,230 for depreciation), and paid taxes of $1,611. Thus, for federal tax purposes, respondent showed a net income of $14,129 in 2002, $19,434 in 2003, and $13,808 in 2004.

The trial court orally denied petitioner’s section 2 — 1401 petition on April 1, 2005. The same day, it requested that the parties submit their closing arguments in writing. On May 10, 2005, the trial court issued a written order. On the issue of child support, it stated:

“For the months from January through July, 2004, although the children spend one-half of the time with [respondent] and therefore it could be argued that no child support should go either way, given that [respondent] earns more money than [petitioner] earns, the Court calculates a fair amount of child support for each of those months to be $250.00 per month, with the total amount owed for the months of January through July, 2004 being $1750.00. Beginning in August, 2004, the child support shall be set at 20%, calculated without depreciation, and with the custody change effective in August, 2004, in the amount of $945.00, until [Daniel] reaches the age of majority. The total amount from August 2004 through May 2005 is $9450.00. The total ‘arrearage’ is $11,200.00.”

The trial court ordered respondent to pay $945 a month in child support beginning in June 2005, plus an additional $300 per month toward the $11,200 arrearage. It stated that the back child support was not a true arrearage that would accrue interest, because the court had not previously ordered respondent to pay child support.

The trial court did not provide a calculation showing how it determined respondent’s net income, but the $945 figure it used for child support beginning in August 2004 corresponds to alternative calculations set forth in respondent’s written closing argument. Although respondent argued that the trial court should consider depreciation expenses when determining his income, he also included calculations that did not subtract depreciation. According to these latter calculations, which correspond to the information in respondent’s tax returns, he had a “net income” of $52,046 in 2002; $50,498 in 2003, and $67,427 in 2004. Averaged over three years, 20% of that income, representing support for one child, results in monthly payments of $944.28.

Regarding the issue of attorney fees, the trial court awarded petitioner $2,500 based on its previous finding of contempt against respondent. However, it denied her request for attorney fees relating to the balance of the proceedings. Petitioner timely appealed.

II. ANALYSIS

We initially note that respondent has not filed a brief on appeal. However, we will address the issues presented based upon the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

The material in sections A and B is nonpublishable under Supreme Court Rule 23.

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Bluebook (online)
848 N.E.2d 173, 365 Ill. App. 3d 448, 302 Ill. Dec. 173, 2006 Ill. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-tegeler-illappct-2006.