Boris v. Blaisdell
| Citation | 97 Ill.Dec. 186,492 N.E.2d 622,142 Ill.App.3d 1034 |
| Decision Date | 29 April 1986 |
| Docket Number | No. 84-3088,84-3088 |
| Parties | , 97 Ill.Dec. 186, 54 USLW 2627 In the Matter of the Marriage of Elizabeth A. BORIS f/k/a Elizabeth A. Blaisdell, Petitioner-Appellee, v. William S. BLAISDELL, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Richard Gigante, Chicago (Paul R. Jenen, Wheeling, of counsel), for respondent-appellant.
Aviva Futorian, Illinois Task Force on Child Support, Robert P. Burns, Chicago, for petitioner-appellee.
Marygold Shire Melli, Madison, Wis. (Nancy Polikoff, Washington, D.C., of counsel), amicus curiae for Women's Legal Defense Fund.
Lewis A. Hoffman, Dunedin, Fla., amicus curiae for Men Intern., Inc.
This is an action commenced in June 1984, by Petitioner Elizabeth Boris, a divorced, custodial parent, to obtain a modification of a child support order that had been originally awarded in 1979 pursuant to a dissolution of marriage. Following hearings in October and November 1984, the trial court found that petitioner had shown a substantial change in circumstances. The trial court found further that an increase in the support order was justified in an amount authorized by section 505(a) of the Marriage and Dissolution of Marriage Act, which had become effective on September 12, 1984. (Ill.Ann.Stat., ch. 40, par. 505(a) (Smith-Hurd 1985 Supp.) (hereinafter "Section 505(a)").) The court ordered an increase in monthly child support payments.
Respondent William Blaisdell appeals the trial court's award. The issues presented for review are:
(1) Whether Section 505(a) violates any of the following provisions of the Federal or Illinois Constitutions:
(a) Ill. Const.1970, art. II, § 1, and art. IV, § 1, concerning the separation of powers and the vesting of the judicial power in the state court;
(b) Ill. Const.1970, art. IV, § 13, prohibiting special legislation;
(c) Ill. Const.1970, art. I, §§ 2, 18, and U.S. Const., amend. XIV, § 1, prohibiting deprivation of property without due process of law and prohibiting denial of equal protection of the laws;
(d) Ill. Const.1970, art. I, § 12, providing a right to a remedy for injuries.
(2) Whether the trial court abused its discretion in finding that an increase in child support was warranted.
(3) Whether the trial court abused its discretion in applying the statutory guidelines of Section 505(a) and in finding no justification for deviating from the guidelines.
The judgment for dissolution of marriage was entered in 1979. Under the terms of the decree, which incorporated the parties' agreement, petitioner was awarded custody of the couple's two-year-old son, Bart. Respondent was to pay $275 a month in child support, and both parties waived maintenance.
On June 8, 1984, when Bart was seven years old, petitioner filed a motion for an increase in respondent's child support payments, alleging both that the child had increased needs and that respondent had increased income. The trial court held hearings on the motion on October 17 and November 9, 1984. The evidence revealed that petitioner had a net monthly income of $2,046 and that respondent's current net monthly income was $1,986. The income for each party had increased since the entry of the decree of divorce.
Petitioner also introduced evidence showing that the needs of their son had increased. This was attributable to higher expenses for school tuition, camp, child care and counseling.
The trial court found that petitioner sustained her burden of showing the increased needs of Bart and the increase in respondent's ability to pay child support. The court also found that it "must follow the guidelines established by the new law passed by the legislature." Finding that respondent's net monthly income was approximately $2,000, the court ordered child support increased from $275 per month to $400 per month.
Respondent's motion for reconsideration was denied. This appeal followed.
Section 505 of the Marriage and Dissolution of Marriage Act provided in part as follows:
"Sec. 505. Child Support; Contempt; Penalties.
(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or any proceeding authorized under Section 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct, after considering all relevant factors, including:
(1) the financial resources of the child;
(2) the financial resources and needs of the custodial parent;
(3) the standard of living the child would have enjoyed had the marriage not been dissolved;
(4) the physical and emotional condition of the child, and his education needs; and
(5) the financial resources and needs of the noncustodial parent or parents.
In cases involving child support alone, the Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Income (Net)
1 20%
2 25%
3 32%
4 40%
5 45%
6 or more 50%
* * * * * *
In cases wherein health/hospitalization insurance coverage is not being furnished to dependents to be covered by the support order, the court shall order such coverage and shall reduce net income by the reasonable cost thereof in determining the minimum amount of support to be ordered.
The above guidelines, including dependent health/hospitalization insurance coverage are binding in each case unless the court makes express findings of fact as to the reason for departure below the guidelines. The guidelines may be exceeded by the court without express findings or by agreement of the parties. If the total gross income cannot be determined because of default or any other reason, the court shall order maintenance or support or both in an amount considered reasonable in the particular case.
Debts owed to private creditors are not to be considered in establishing a support obligation. Previous support orders and maintenance orders may be considered if the obligor is paying them."
(Ill.Ann.Stat., ch. 40, par. 505 (Smith-Hurd 1985 Supp.).) Statutes will be construed to avoid an unconstitutional result. (Lopez v. Fitzgerald (1979), 76 Ill.2d 107, 131-32, 28 Ill.Dec. 476, 390 N.E.2d 835.) There is a presumption that the legislative enactments are constitutional, with the burden of clearly establishing the contrary on the party that asserts unconstitutionality. Sayles v. Thompson (1983), 99 Ill.2d 122, 124-25, 75 Ill.Dec. 446, 457 N.E.2d 440.
Respondent's constitutional challenge is based on the assumption that under Section 505(a), courts are mandated to follow literally the schedule for child support. If this reading is correct, the function of the court is reduced to that of a computer or robot. In this case, the sole function of the court would be to determine the net income of the noncustodial parent, determine the number of children, and calculate the amount of child support by applying the percentage of net income stated in the schedule. However, respondent has failed to show that the statute can or should be read to effectively prohibit judicial discretion.
This fundamental failure to interpret correctly Section 505(a), P.A. 83-1404, is clearly evident from the legislative history of P.A. 83-1404. Prior to the enactment of this legislation, the Judges of the Domestic Relations Division of the Circuit Court of Cook County adopted "Guidelines for Support and Maintenance Orders," which stated:
"After numerous meetings the sitting Judges of the Domestic Relations Division have concluded it is desireable that all support orders be as uniform as possible where the facts are substantially the same. The judges have considered and reviewed guidelines established in the other 49 states, other Illinois Judicial circuits and the American Bar Association's studies and recommendations on the subject. In order to accomplish this end the judges of the division have decided to adopt GUIDELINES in setting support orders. The word 'Guidelines' cannot be emphasized enough since no judge intends to surrender his discretion in setting awards or waiving relevant factors which the court must consider under Chapter 40, Secs. 504 and 505 of the Illinois Revised Statutes. In addition, the court will continue to consider the tax consequences of such orders and any effect they would have upon 'Guidelines.'
The following guidelines are to be considered in establishing support orders for 'typical' medium-income situations. Upward or downward adjustments may be made by the court, depending on the needs of the children, the debts assumed by the non-custodial parent and other extenuating circumstances and relevant factors. The income of the non-custodial parent is not the only and sole controlling factor.
The term 'net income' means gross income less mandatory deductions such as federal and state withholding taxes, FICA, medical insurance, mandatory pension contributions, etc. Payment on a debt to the company credit union is not a 'mandatory deduction.'
Thus, in an attempt to gain uniformity in support orders and promote amicable settlements the following per cent guidelines of the 'net income' of the supporting party will be considered as a 'starting point' by the sitting judges of the Domestic Relations Division I.
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