In re the Marriage of O'Daniel

• Court: Appellate Court of Illinois
• Decided: June 2, 2008
• Docket: 4-07-0250 Rel
• Status: Published

Opinion

Filed 6/2/08 NO. 4-07-0250

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from JEROME B. O'DANIEL, JR., ) Circuit Court of Petitioner-Appellee, ) Sangamon County and ) No. 94D397 SUSAN B. O'DANIEL, ) Respondent-Appellant. ) Honorable ) Steven H. Nardulli, ) Judge Presiding. _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

In September 2006, the trial court issued a

postjudgment order modifying terms of the April 1995 judgment

dissolving the marriage of Jerome and Susan O'Daniel. In Febru-

ary 2007, after both Jerome and Susan filed motions to reconsider

the court's September 2006 order, the court filed another

postjudgment order. Susan appeals both the September 2006 and

February 2007 postjudgment orders, arguing the court erred (1) in

calculating the child support due from Jerome, (2) in failing to

hold Jerome in contempt for failing to maintain health insurance

for their children, and (3) in not ordering Jerome to pay enough

of Susan's attorney fees. We affirm.

As the parties are aware of the facts in this case, we

only briefly discuss those facts relevant to the issues Susan

raises. On June 1, 2005, Jerome filed a petition to modify

judgment, alleging (1) the custodial circumstances of his and Susan's four children had changed and that (2) he had been laid

off from his employment with Levi, Ray & Shoup. Over the next

month and a half, Susan filed two petitions for rule to show

cause, alleging Jerome had failed (1) to provide income-tax

information as required by the judgment, (2) to pay 75% of the

children's medical and dental expenses not covered by insurance,

and (3) to provide medical insurance as required by the judgment.

On October 7, 2005, Susan filed a petition to modify the judg-

ment, seeking (1) modification of (a) child support and (b) the

allocation of dependency exemptions and (2) proof of life insur-

ance.

On July 6, 2005, Jerome obtained employment with CDS

Office Technologies (CDS), where he earned a monthly salary of

$4,166.66 plus commissions. He lost that job on November 8,

2005. He again received unemployment. In April 2006, Jerome

began working for Professional Liability Management.

In his September 2006 written trial brief, Jerome

argued the trial court should take into account his periods of

unemployment when setting child support and submitted child

support be set in the amount of (1) $600 per month for the

periods from June 15, 2005, through December 31, 2005, (2) $400

per month for the period from January 1, 2006, through June 30,

2006, and (3) $600 per month thereafter. He argued the money he

withdrew from his individual retirement account (IRA) in 2005 and

- 2 - 2006 should not count as income for purposes of determining the

amount of child support he owed because he used that money "to

meet his mortgage and other expenses, to pay the [COBRA (Consoli-

dated Omnibus Budget Reconciliation Act)] cost of insurance, and

[to] make some child[-]support payments during time he was on

unemployment." According to Jerome's argument, "The funds that

[he] had in his IRA were, just like any savings or bank account,

already accumulated funds." He also argued any money he earned

from a rental property he owned with Bob Shaver went to Shaver

because Shaver advanced Jerome's share of the purchase price of

the property. According to Jerome's trial brief, "For support

purposes the rental property is a wash, where the income received

is used to pay the debt created to secure the income."

In her September 2006 written argument to the trial

court, Susan argued the money Jerome withdrew from his IRA

($43,000) and half of the rental income earned from the rental

property ($739) in 2005 should count as income for determining

child support. According to Susan's argument, Jerome's child

support for 2005 should have been set at $2,067.40 per month for

the period between June 1 and December 31. As for 2006, Susan

argued the court should include the following in Jerome's pro-

jected gross income: (1) rental income of $8,340 (2) $57,666.10

in withdrawals from his IRA (Jerome had withdrawn $28,864.72 and

anticipated withdrawing the rest), (3) $7,600 in unemployment

- 3 - income, and (4)$33,332 in projected income for the period May

through December 2006 from his employment with Professional

Liability Management.

Susan stated the trial court should deduct estimated

health-insurance premiums of $8,064 ($672 per month) in determin-

ing child support. Susan noted her and Jerome's second oldest

child attained her majority on June 3, 2006, when she graduated

from high school. As a result, Susan argued the court should

find Jerome owed child support of $1,964 per month for the first

five months of 2006 and $1,718 per month thereafter.

In its September 2006 order, the trial court declined

Susan's request to include the IRA withdrawals Jerome made while

he was unemployed for purposes of determining child support. The

court also declined to include any income from the rental prop-

erty in which Jerome had a partial ownership interest. The court

set child support at $973 per month for the couple's three

children who had not reached majority for the period between June

1 and October 31, 2005. The court based this figure on the fact

Jerome's net income before paying child support was $3,039 per

month while he was working at CDS. However, Jerome was not

working for CDS during the month of June 2005, as he was unem-

ployed. For the period between November 1, 2005, and May 31,

2006, the court set child support at $791 per month for three

children based on Jerome's net income of $2,472.42 per month at

- 4 - Professional Liability Management after deducting $720 per month

for the cost of medical insurance for the children through COBRA

obtained from CDS. The court did this even though Jerome did not

begin working at Professional Liability Management until April

2006 and was unemployed during a significant portion of this

period of time. Effective June 1, 2006, the court lowered the

child support to $692 per month because only two of the children

had not reached the age of majority.

The trial court also ordered Jerome to continue to

provide the children with medical insurance as long as it was

available to him. When it was no longer available, Jerome and

Susan were to split the cost of medical insurance for the chil-

dren. The court also ruled that the parties were to split

equally the out-of-pocket medical expenses for the children.

The trial court further found Jerome's failure to

provide medical insurance for the children during certain periods

of his unemployment was not willful given Jerome's financial

condition at the time. The court did find Jerome in willful

contempt for failing to pay his share of medical expenses as

ordered by the court. The court also ordered Jerome to pay $900

of Susan's attorney fees that it found were "reasonably incurred

by Susan relative to her enforcement of the orders with regard to

production of income[-]tax information, life[-]insurance informa-

tion, and the payment of medical expenses not otherwise covered

- 5 - by medical insurance."

In October 2006, Susan filed a motion to reconsider the

trial court's postjudgment order, in which she argued the points

she raises on appeal.

In February 2007, the trial court filed another

postjudgment order. In that order, the court found once again

that the withdrawals Jerome made from his IRA should not be

included in his gross income when calculating child support. The

court continued to deny Susan's efforts to have Jerome held in

contempt for failing to maintain medical insurance while he was

unemployed. The court also denied Susan's request for additional

attorney's fees.

Jerome has not filed an appellee's brief. We

nevertheless still choose to review this case on its merits. Our

supreme court has stated:

"[T]he judgment of a trial court should not

be reversed pro forma for the appellee's

failure to file its brief as required by

rule. A considered judgment of the trial

court should not be set aside without some

consideration of the merits of the appeal.

* * *

We do not feel that a court of review

should be compelled to serve as an advocate

- 6 - for the appellee or that it should be re-

quired to search the record for the purpose

of sustaining the judgment of the trial

court. It may, however, if justice requires,

do so. Also, it seems that if the record is

simple and the claimed errors are such that

the court can easily decide them without the

aid of an appellee's brief, the court of

review should decide the merits of the ap-

peal. In other cases if the appellant's

brief demonstrates prima facie reversible

error and the contentions of the brief find

support in the record the judgment of the

trial court may be reversed." First Capitol

Mortgage Corp. v. Talandis Construction

Corp., 63 Ill. 2d 128, 131-33, 345 N.E.2d

493, 494-95 (1976).

Susan first argues the trial court erred in failing to

properly calculate the child support due from Jerome. We do not

disturb a trial court's decision to modify child support unless

we find the court abused its discretion. Posey v. Tate, 275 Ill.

App. 3d 822, 825, 656 N.E.2d 222, 224 (1995). An abuse of

discretion occurs only where no reasonable person would take the

view adopted by the court. Posey, 275 Ill. App. 3d at 825, 656

- 7 - N.E.2d at 224. Susan argues the court abused its discretion

because it ignored substantial sums of income earned by Jerome in

2005 and 2006, resulting in a support award less than required by

law.

According to Susan, the trial court should have in-

cluded the withdrawals Jerome made from his IRA in determining

his income. Susan relies on the Second District's decision in In

re Marriage of Lindman, 356 Ill. App. 3d 462, 824 N.E.2d 1219

(2005), for this proposition. In Lindman, the Second District

held that "IRA disbursements are 'income' for purposes of calcu-

lating 'net income' under section 505 of the [Illinois Marriage

and Dissolution of Marriage Act (Act)] (750 ILCS 5/505 (West

2002))." Lindman, 356 Ill. App. 3d at 466-67, 824 N.E.2d at

1223.

The Second District reached this result by relying on

the supreme court's decision in In re Marriage of Rogers, 213

Ill. 2d 129, 820 N.E.2d 386 (2004). The Lindman court stated:

"The supreme court has counseled that, con-

sistent with its ordinary meaning, 'income'

is '"something that comes in as an increment

or addition ***: a gain *** that is usu[ally]

measured in money.'" Rogers, 213 Ill. 2d at

136,[ 820 N.E.2d at 390,] quoting Webster's

Third New International Dictionary 1143

- 8 - (1986). Additionally, 'income' may be

defined as the money or payment received from

a variety of sources, including investments.

Rogers, 213 Ill. 2d at 137[, 820 N.E.2d at

390], quoting Black's Law Dictionary 778 (8th

ed. 2004).

***

*** Like all of these items, IRA

disbursements are a gain that may be measured

in monetary form. Rogers, 213 Ill. 2d at

136[-37, 820 N.E.2d at 390]. Moreover, IRA

disbursements are monies received from an

investment, that is, an investment in an IRA.

*** Thus, given its plain and ordinary

meaning, 'income' includes IRA

disbursements." Lindman, 356 Ill. App. 3d at

466, 824 N.E.2d at 1223.

It would appear from the above quote that the Second

District would find that any IRA disbursement would constitute

income. We disagree and do not find Rogers supports this

proposition. The Second District's decision does not adequately

take into account that IRAs are ordinarily self-funded by the

individual possessing the retirement account. Except for the tax

benefits a person gets from an IRA and the penalties he or she

- 9 - will incur if he or she withdraws the money early, an IRA

basically is no different than a savings account, although the

risks may differ. The money the individual places in an IRA

already belongs to that individual. When an individual withdraws

money he placed into an IRA, he does not gain anything as the

money was already his. Therefore, it is not a gain and not

income. The only portion of the IRA that would constitute a gain

for the individual would be the interest and/or appreciation

earnings from the IRA.

Susan does not state in her brief what portion of

Jerome's IRA was made up of his contributions. As a result, we

cannot say what portion of Jerome's withdrawals might have

constituted income for child-support purposes.

Susan also argues the trial court erred in failing to

include income from Jerome's rental property. The court did not

specify in its postjudgment order why it was not including the

rental income. However, in the trial court, Jerome argued the

money he earned from the rental property went to the other

individual, Bob Shaver, who owned the property with him because

Shaver advanced Jerome's share of the purchase price of the

property. Jerome argued this income would fall under section

505(3)(h) of the Act (750 ILCS 5/505(3)(h) (West 2006)) because

the income received was used to pay the debt created to secure

the income. The trial court evidently agreed. Susan does not

- 10 - give us any indication in her brief why the trial court would

have erred in doing so.

Susan also argues the trial court erred in not

considering Jerome's unemployment compensation. While it is true

that at least one court has considered unemployment checks income

(see In re Marriage of Olsen, 229 Ill. App. 3d 107, 117, 593

N.E.2d 859, 867 (1992)), the trial court in this case did not

abuse its discretion in favor of Jerome in not considering those

payments because it ordered him to pay child support during his

periods of unemployment based on his net income while he was

employed. The court set Jerome's child support at $973 per month

for the period between June 1 and October 31, 2005, based on his

net income per month at CDS, even though he was unemployed

between June 1 and his start date at CDS, which was July 6, 2005.

Further, the court ordered Jerome to pay $791 per month, based on

his net monthly income at Professional Liability Management, for

the period between November 1, 2005, and May 31, 2006, even

though he did not begin working at Professional Liability

Management until April 2006 and was unemployed during a large

part of the period between November 1, 2005, and April 1, 2006.

Susan also argues the trial court erred in assuming

Jerome would be paying $720 per month for medical insurance

through COBRA for the 18-month period after November 1, 2005. We

disagree. Based on a check Jerome wrote for $2,688 for four

- 11 - months of premiums, Susan argues he is only paying $672 per month

for health-insurance premiums. However, Susan does not point

this court to anything more definitive than this check and asks

this court to speculate that he was paying the same premium for

all four months. From respondent's exhibit No. 35 contained in

the record, which was the information CDS sent to Jerome about

continuing his medical coverage after he lost his employment, it

is quite clear Jerome's monthly premium was scheduled to be $720.

From that exhibit, it appears his premium for November 2005 was

probably prorated because he was not terminated from CDS until

November 8. According to the exhibit:

"As explained in the first few pages of this

communication, your first premium payment

must cover the period beginning on the date

immediately following the date of your

qualifying event. Please complete sign and

date the Election/Enrollment Form and return

it to this office. We will then notify you

of the amount of your initial premium

payment."

Based on the arguments made by Susan, we do not believe

the trial court abused its discretion in the way it set Jerome's

child-support obligations.

Susan next argues the trial court erred in failing to

- 12 - hold Jerome in contempt of court for his failure to maintain

health insurance for the children. In its September 2006

postjudgment order, the trial court found Jerome's "failure to

provide medical insurance for any period of time was not willful

given Jerome's financial circumstances at the time." The court

did find Jerome in willful contempt for failing to pay his share

of the children's medical expenses as ordered by the court.

Susan cites no case law in support of her argument. She does

concede this was a discretion call for the court. We do not find

the trial court abused its discretion.

Susan next argues the trial court erred in the amount

it awarded her for her attorney fees. An appellate court reviews

the amount a trial court awards in attorney fees under an abuse-

of-discretion standard. In re Marriage of Powers, 252 Ill. App.

3d 506, 508-09, 624 N.E.2d 390, 392-93 (1993). We do not find

the trial court abused its discretion in the amount of attorney

fees it awarded.

Affirmed.

KNECHT and COOK, JJ., concur.

- 13 -