Carnes v. Dressen
| Decision Date | 18 June 1991 |
| Docket Number | No. 4-90-0809,4-90-0809 |
| Citation | 215 Ill.App.3d 166,158 Ill.Dec. 732,574 N.E.2d 845 |
| Parties | , 158 Ill.Dec. 732 Kathy J. CARNES, Plaintiff-Appellant, v. Kenneth A. DRESSEN, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Sandberg, Phoenix & von Gontard, P.C., Rodney M. Sharp, St. Louis, Mo., for plaintiff-appellant.
Fuller, Hopp, McCarthy, Quigg & Byers, Decatur (Richard W. Hopp, of counsel), for defendant-appellee.
Plaintiff Kathy Carnes appeals from an order of the circuit court of Macon County which increased child support payments required to be paid by defendant Kenneth Dressen from $30 to $40 per week but refused to order payment by defendant of retroactive child support payments, retroactive health insurance premiums, and attorney fees incurred by plaintiff. This action originated under the provisions of the Parentage Act of 1984 (Parentage Act) ().
This cause was previously before our court, at which time the same basic issues were considered. (See Carnes v. Dressen (Mar. 8, 1990, 4th Dist. Gen. No. 4-89-0517, unpublished order under Supreme Court Rule 23).) The decision in Carnes reversed the trial court's determination of child support because the amount was below that provided for by the child support guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill.Rev.Stat.1989, ch. 40, par. 505), and the judgment did not make an express finding as to why the ordered support was below the child support guidelines. Such express findings are required by section 505(a)(2)(e) of the Dissolution Act (Ill.Rev.Stat.1989, ch. 40, par. 505(a)(2)(e)). Child support ordered under the Parentage Act shall be determined by using the guidelines and standards as provided for under sections 505(a) and 505.2 of the Dissolution Act (Ill.Rev.Stat.1989, ch. 40, par. 505.2). Ill.Rev.Stat.1989, ch. 40, par. 2514.
Our decision in Carnes under Supreme Court Rule 23 (134 Ill.2d R. 23) provided, in part, as follows:
After remand and rehearing, the trial court increased child support payments from $30 to $40 per week. The court refused to provide for retroactive child support payments, retroactive health insurance premiums, or to require defendant to pay plaintiff's attorney fees and costs.
Defendant is paying $60 per week child support for a child born prior to the March 9, 1988, birth of plaintiff's son. At the time of rehearing defendant had married, and his wife has children by a previous marriage. Plaintiff had also married before the rehearing. Prior to the first appeal, defendant had used bankruptcy to discharge his debts, including a debt owed plaintiff. For practical purposes, the evidence indicates that both plaintiff and defendant had minimal assets; however, both were employed.
In a memorandum opinion on July 19, 1990, the trial court determined that plaintiff's current monthly gross income was $1,737 and defendant's current monthly gross income was $2,442. It further found plaintiff's expenses increased to $1,858 per month, "due largely to increased payments required by the purchase of a new home by her and her present husband." There is no evidence in the record to sustain the court's determination of the purchase of a new house, and the statement is strongly contested by plaintiff in her appellant brief. The trial court further found defendant's expenses "remained the same at $1,571 per month."
Net income, for purposes of determining support guidelines as provided by section 505 of the Dissolution Act, requires that Federal and State income taxes, social security (FICA) taxes, mandated retirement contributions, union dues, dependent and individual health and hospitalization insurance premiums, prior obligations of support or maintenance actually paid, and certain other debts and expenses be deducted from this gross income. (Ill.Rev.Stat.1989, ch. 40, par. 505(a)(3).) The only relevant items to determine defendant's net income for purposes of these guidelines are Federal and State income taxes, FICA taxes, union dues, and existing child support.
The trial court found defendant's total deductions were "Federal and State taxes and Union dues of $723 which leaves him [defendant] with net income of $1,719." The $723 figure is incorrect. Assume the 1990 gross income is $29,304. The maximum Federal income tax for a single person would be $4,199 per year ($350 monthly). The maximum State income tax would be $849 per year ($71 monthly). FICA taxes with medicare would be 7.65% of gross income, which would be $2,242 per year ($187 monthly). Union dues are assumed to be $3.30 per month. These items total $611 per month, not $723. Child support for the previous child is $60 per week, or an average of $260 per month. Net income per month, then, for the purposes of determining the guideline, is $2,442, less $611 and $260, for a net of $1,571. Regardless of the trial court's comments in the decision on rehearing, we find the only justification for lowering the award from the 20% statutory guideline amount would be the custodial parent's income. A weekly payment of $73 would be 20% of $1,571.
Defendant argues that provisions of section 505 of the Dissolution Act should be interpreted as providing a maximum amount of 25% for two children, regardless of whether the children reside in different households. His argument suggests the 25% amount should be determined, the previously ordered child support should be deducted, and the balance remaining should then go to the second child. His position appears to be inconsistent with the statutory provision requiring net income to be determined by deducting previously ordered and paid child support. See Ill.Rev.Stat.1989, ch. 40, par. 505(a)(3)(g).
The constitutionality of the minimum guidelines has been upheld by previous decisions of the appellate court. (In re Marriage of Blaisdell (1986), 142 Ill.App.3d 1034, 1042-47, 97 Ill.Dec. 186, 188-97, 492 N.E.2d 622, 624-31; In re Marriage of Cook (1986), 147 Ill.App.3d 134, 136, 100 Ill.Dec. 760, 761, 497 N.E.2d 1029, 1030.) This is not to say that the trial court can blindly apply the statutory guidelines. (In re Marriage of Tatham (1988), 173 Ill.App.3d 1072, 1093, 123 Ill.Dec. 576, 588, 527 N.E.2d 1351, 1363.) Where the relevant factors call for variance from the guidelines, variances should be made. Ill.Rev.Stat.1989, ch. 40, par. 505(a)(2); see also 1 H. Gitlin, Gitlin on Divorce p 10.02(G)(2), at 200-01 (1991).
Defendant suggests the problem with guideline provisions is that 20% of net income is to be awarded for the benefit of each child of several children born to a father from different mothers. Using the example of five children, each from a different mother and each living in a separate household, if 20% of net income is ordered support for each child, almost the entire net income would be paid to child support. (As long as prior-ordered child support is deducted in computing net income, 100% of net income would not be awarded.) Defendant appears to ignore the dictates of section 505(a)(2)(e) of the Dissolution Act, which gives the trial court necessary authority to avoid economic havoc.
Perhaps section 505 of the Dissolution Act should be amended to allow child support payments to be computed by pooling the total number of children, then applying the applicable percentage, and then dividing the amount awarded by the number of children in the pool. This does not seem advisable because of discretionary powers given to the trial court by section 505 of the Dissolution Act. Different circumstances, ages, and educational abilities of children can call for different support amounts. The custodial parent's circumstances can also justify a variance. We conclude that section 505(a)(1) of the Dissolution Act requires an allotment of 20% for plaintiff's child's support, unless the relevant factors call for a different result. In the present case, we conclude there would be variance from the 20%, but conclude the facts do not justify an amount as low as $40 per week. After considering the trial court's actions in this cause, we conclude it is incumbent upon this court, if for no other reason than for instructional purposes, to fix the child support at $53 per week. We have distaste for our invasion into the trial court's domain, but find it is necessary in this case.
Plaintiff filed the action against defendant under the Parentage Act on October 27, 1987. Defendant's attorney mailed a copy of defendant's response and appearance to plaintiff's attorney on November 18, 1987. The child was born on March 9, 1988. Defendant took two blood tests, both of which conclusively determined, for practical purposes, the child's parentage. He contested parentage even after the second blood test. On April 24, 1989, a motion for summary judgment was granted which found defe...
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