Benink v.
| Decision Date | 02 February 2018 |
| Docket Number | No. 2–17–0175,2–17–0175 |
| Citation | 2018 IL App (2d) 170175,113 N.E.3d 576 |
| Parties | IN RE MARRIAGE OF Suzette L. BENINK, Petitioner–Appellee and Cross–Appellant, and Eric H. Benink, Respondent–Appellant and Cross–Appellee. |
| Court | United States Appellate Court of Illinois |
Jody L. Booher and Laura A. Baluch, of Barrick, Switzer, Long, Balsley & Van Evera, LLP, of Rockford, for appellant.
D. Kevin Sommer, of Rockford, for appellee.
¶ 1 In this appeal and cross-appeal, the parties dispute the amount of modified child support owed by the respondent, Eric Benink, to the petitioner, Suzette Benink; the law to be applied to that calculation; and whether Eric presented a valid reason for his noncompliance with the judgment of dissolution.
¶ 3 Suzette and Eric were married in 1991 and had four children together. They divorced in 2010. Eric was employed by OSF St. Anthony Hospital as vice president and chief medical officer. Suzette did not work outside the home during the marriage.
¶ 4 Under the judgment of dissolution, the parties shared joint custody of the children, with Suzette as the residential parent. A property settlement agreement incorporated into the judgment contained the following child support provisions relevant here:
The property settlement agreement further required Eric to provide to Suzette, by April 15 of each year, a sworn statement of his income and copies of his W–2 forms from the previous year. Suzette was to receive $72,000 per year in maintenance from Eric.
¶ 5 In May 2012, the parties' oldest child (who was by then 18 years old) graduated from high school. Eric continued to pay the base $2,431 in biweekly child support.
¶ 6 In November 2012, Eric was offered employment with Northwest Community Hospital at a base salary of $420,000 per year plus a 25% performance bonus. In accepting the position, Eric sought an additional $30,000 signing bonus. He testified that he sought the signing bonus because he planned to sell his home in Belvidere and move to Algonquin and he anticipated that he would lose about that amount on the sale of his Belvidere home. Northwest Community Hospital agreed to pay him "a one-time signing bonus, to include moving expenses, of $30,000." Eric received the signing bonus in 2012. He did not disclose to Suzette that he had received the signing bonus or that in 2012 he had earned an additional $6616.67 from other sources for consulting work. Eric testified that he ultimately lost about $31,486 on the sale of his Belvidere home. His 2013 tax return listed $1994 in "moving expenses," which were incurred in the summer of 2013.
¶ 7 Eric remained employed by OSF St. Anthony through the end of 2012. His base salary through September 30, 2012, was $334,086. On December 10, 2012, Eric was notified that his 2012 bonus would be $51,783.33. On December 31, 2012, Eric paid Suzette $9694. In an email, he told her that this amount represented 32% of his net bonus of $30,293, indicating that he had unilaterally reduced the percentage being paid as child support because of the oldest child's graduation.
¶ 8 In February 2013, Suzette filed a multi-part petition seeking (1) modification of the amount of child support, based on her belief that Eric was now earning substantially more than at the time of dissolution; (2) a finding of contempt against Eric for his failure to comply with the judgment of dissolution, in that he had not paid her 40% of his net 2012 OSF St. Anthony bonus and had not provided her with any documentation of his income since the dissolution; and (3) educational expenses for the children. In the portion seeking a finding of contempt, Suzette also stated that she believed that Eric had received a signing bonus in connection with his new position at Northwest Community Hospital but had not reported any additional income to her. She sought payment of all amounts due her and attorney fees.
¶ 9 The trial court issued a rule to show cause. In March 2013, Eric filed his own petition for a rule to show cause, asserting that Suzette had interfered with his visitation. In the petition, Eric also sought to reduce his child support obligation, on the basis that some of the children were no longer minors. Around the same time, Eric paid Suzette the difference between the previously paid 32% of his OSF St. Anthony bonus and the 40% that Suzette asserted was due under the judgment of dissolution.
¶ 10 In May 2014, the parties' second child, who was 18 years old, graduated from high school. The parties' third child did likewise in May 2016.
¶ 11 For reasons that are unclear to us, the hearing on the two petitions did not commence until February 2016, almost three years after they were filed. The parties had settled the issue of educational expenses in the meantime, but the issues of the proper amount of child support and the parties' alleged noncompliance with the dissolution judgment remained pending. A second day of the hearing on these issues took place in June 2016. On June 24, 2016, the trial court entered an interim order for child support in the amount of $1664 biweekly, which was 20% (the statutory percentage for one child) of Eric's base salary, net of all statutory deductions (including maintenance) allowed under the most recent version of section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/505 (West 2016) ).
¶ 12 In August 2016, the trial court issued a memorandum decision. The trial court first addressed the issue of which version of the Act applied. It noted that, while the petitions were pending, the General Assembly had enacted Public Act 99–90 (new Act), a comprehensive revision of the Act, with an effective date of January 1, 2016. That enactment contained, among other things, a provision adopting and adding to section 801 of the existing Act ( 750 ILCS 5/801 (West 2014) ). The provision stated that the new Act applied to (1) new proceedings commenced after January 1, 2016, (2) "pending actions and proceedings commenced prior to [January 1, 2016] with respect to issues on which a judgment has not been entered," and (3) proceedings commenced after January 1, 2016, that sought "the modification of a judgment or order entered prior to" that date. The trial court characterized the petitions as pending proceedings raising issues on which a judgment had not been entered, and it declared that it would therefore apply the new Act.
¶ 13 The trial court then addressed the requests for modification of Eric's child support obligation. Construing the language of the parties' property settlement agreement, the trial court stated that, although the agreement provided that Eric's child support obligation continued only so long as each child was below age 18 or still in high school, it did not expressly provide for a recalculation of child support each year or upon a child's graduation from high school. In the absence of such a provision, the trial court stated that it would perform a "look back" to determine the proper amount of child support due over time, but it would modify the child support obligation only if the amount due during any given period was a substantial change from the amount due in the prior period. The trial court announced that it would apply a "threshold * * * of 20% or more of an increase or decrease" before granting any modification.
¶ 14 As to 2012, Suzette's petition sought only to enforce Eric's obligation to pay 40% of any bonus he received. The trial court held that, as Eric had eventually paid 40% of his OSF St. Anthony bonus, no further amounts were due and owing for 2012. The trial court did not address the signing bonus Eric received from Northwest Community Hospital.
¶ 15 For 2013, the trial court agreed with Suzette's calculation that Eric's net income was $378,397, which represented a substantial increase from the net income suggested by his prior child support obligation of $2431 biweekly. Accordingly, the trial court granted Suzette's petition to modify Eric's child support obligation, setting it at $10,090.59 per month (32% of Eric's net income, based on there having been three minor children during all of 2013).
¶ 16 The trial court found that Eric's 2014 net income was $448,097. As the second-oldest child graduated at the end of May, child support would be 32% of net income ($11,949.25 per month) for five months, and then 28% ($10,455.60 per month) for the remaining seven months. However, as neither of these amounts was at least 20% above the previous child support obligation of $10,090.59 per month, the trial court denied further modification and continued the $10,090.59 monthly obligation throughout 2014.
¶ 17 As to 2015, the trial court found that Eric's net income was $355,062. The amount of child support would be $8,274.78 per month ...
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