In re Ash

Decision Date17 December 2021
Docket Number1-20-0901
Citation2021 IL App (1st) 200901,193 N.E.3d 823,456 Ill.Dec. 583
Parties IN RE MARRIAGE OF Allison L. ASH, f/k/a Allison L. Matschke, Petitioner-Appellee, AND Mason H.C. MATSCHKE, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

Annette M. Fernholz, of Law Offices of Annette M. Fernholz, P.C., of Chicago, for appellant.

Aldo E. Botti and Jean Lasics-Wessels, of Botti Law Firm, P.C., of Oak Brook, for appellee.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Respondent, Mason H.C. Matschke, appeals the trial court's order modifying his maintenance and support payments. On appeal, Mason contends the court erred in (1) failing to include loans from petitioner Allison L. Ash's parents as her income in calculating child support and maintenance payments; (2) failing to reducing Mason's share of the children's medical, extracurricular, and educational expenses; and (3) ordering an amount of child support that deviated upward from the statutory guidelines. For the following reasons, we affirm.

¶ 2 I. JURISDICTION

¶ 3 On July 27, 2020, the trial court denied Mason's motion to reconsider, finding no just reason for delaying enforcement or appeal. He filed his notice of appeal on August 24, 2020. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), which allows for appeals although other matters remain pending.

¶ 4 II. BACKGROUND

¶ 5 The parties were married on September 23, 1995, and they subsequently had four children: James born in 1997, Benjamin born in 1999, William born in 2002, and Ian born in 2005. In July 2013, Allison filed a petition for dissolution of marriage. A judgment for dissolution was entered by the trial court on October 16, 2017.

¶ 6 At the time of judgment, Mason was employed by Raymond James & Associates (Raymond James), and Allison was a homemaker. The court averaged Mason's income from 2013 to 2016 in determining that his gross income was $262,867.50. After subtracting allowable deductions, Mason's average net annual income was $186,635.92. As three of the children were minors, the court set Mason's child support obligation at $2488.48, to be paid every two weeks. Mason also would pay 70% of the children's uncovered medical, dental and therapeutic costs; 100% of their extracurricular expenses; and 70% of their educational expenses.

¶ 7 James, at 19 years old, had achieved de facto emancipation. Allison maintained, however, that he was disabled due to alcoholism and attention deficit hyperactivity disorder

. The trial court found there was no evidence that either condition limited James's major life activities, and it declined to adjudge him disabled under section 513.5 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) ( 750 ILCS 5/513.5 (West 2020) ). Although James did not qualify for support from either party, the parties could voluntarily provide support if they chose to do so.

¶ 8 The trial court also found that Allison was a maintenance candidate. Following the statutory guidelines, Allison was entitled to a support payment of $3285.83 every two weeks. Since the parties were married 21 years, the payments would be permanent or for a period equal to the duration of the marriage. However, since Allison's parents funded an irrevocable trust in her name, the trial court deviated downward from the statutory guidelines and ordered support payments of $3000 every two weeks for 10 years.

¶ 9 The court further found that

"ALLISON's parents loaned her a total of $36,509.39 for expenses relating to the 5400 Franklin property. This Court also finds that the Ashes made payments in the amount of $206,912.46 on behalf of the parties’ minor children. Therefore it was the parties’ obligation to meet these expenses. The Court also finds that said loans were adequately substantiated by evidence such as copies of cashed checks and promissory notes. This Court finds that a total of $243,421.85 ($206,912.46 + 36,509.39) should be repaid to JOANNE and DAVID ASH. Said repayment shall come from the escrowed proceeds from the sale of 5400 Franklin. The balance of the escrowed proceeds, if any, shall be equally distributed between the parties."

¶ 10 On May 1, 2018, Mason filed a petition to modify his child support and maintenance obligations. The petition alleged that since the dissolution judgment "there has been a substantial and material change in circumstances relative to Mason's income." In the judgment, the trial court found Mason's average annual net income through March 2016 to be $186,635.92. Mason alleged that, at the end of 2016, his gross earnings were $155,411.47, his gross earnings at the end of 2017 were $166,401.19, and his gross earnings for the first four months of 2018 totaled $47,971.78. Furthermore, one of the parties’ minor children, Benjamin, had reached the age of emancipation. Mason requested a modification of his support and maintenance payments and of his share of the children's medical, extracurricular and educational expenses.

¶ 11 At the hearing on the petition, Mason testified that in 2018 his gross wages were $146,575 and he received approximately $5100 from the Chafee Family Trust. He testified that there have been changes since his latest financial affidavit. His gross income decreased from $12,122 monthly to $11,121, and his rent doubled to $1280 per month because he no longer lived with his girlfriend. Also, his monthly dental costs increased from $135 to $400 due to root canals and 10 broken teeth.

¶ 12 Mason testified that he is on a payment plan of $600 per month regarding his debt to the Internal Revenue Service (IRS). He currently has a 401(k) loan of $27,000, and his Visa bill exceeds $5000. In 2017, he paid Allison 50% of his net monthly income, but in 2018, maintenance and child support were garnished from his monthly pay. He testified that out of 13 pay periods in 2018, he received no income on 7 occasions. To pay his bills, Mason borrowed $20,000 from his individual retirement account.

¶ 13 On cross-examination, Mason stated that he now works in the Waukesha, Wisconsin, office of Raymond James on a 100% commission basis. He received $575,000 from his employer in the form of a paid loan, which he reported as income of approximately $80,000 per year for eight years. Raymond James paid him a bonus to cover taxes on the reported income. He did not give Allison any of his 2017 tax refund because it "went directly to the IRS." Mason anticipated that his 2018 tax refund would also go to the IRS. In 2017, Mason contributed $9865.77 to his 401(k). According to his December 31, 2018, pay stub, Mason contributed $4248.44 to his 401(k) that year and $6300 to another retirement account. He admitted that his gross income in 2017 and 2018 was more than his income in 2016.

¶ 14 The Raymond James bonus agreement of March 9, 2011, and the agreement dated January 2, 2009, were paid off in 2016. Mason denied that he has more available income as a result because he has "no control" over his income, which depends on his clients working with him and making monthly transactions. On redirect examination, Mason explained that his Raymond James bonus of approximately $80,000 to $100,000 per year for eight years "went to pay taxes." He stated that the amount was included in his gross income even though he never received the money.

¶ 15 Allison testified as an adverse witness. She stated that she has a bachelor's degree in sociology and was previously employed with Prudential Securities as an administrative assistant. She left her position to care for her children. She testified that she would seek employment in the future when her children are "in a better place." She has a 13-year-old and a 16-year-old at home, her 19-year-old is still at home, and her 21-year-old lives in California. Her 19-year-old, who is now emancipated, works part-time and attends school part-time.

¶ 16 Allison stated that her monthly expenses are $10,636.66. She uses the money she receives from Mason, and money she borrows from her parents, to pay her expenses. When she does not have money for her monthly rent of $2500, she borrows money from her parents. Allison signs notes "from time to time" for the money she has borrowed, but she has yet to pay back any monies. She "absolutely" plans on paying her parents after she gets a job and receives more money from Mason.

¶ 17 Allison meets with her parents on a monthly basis to "give them the bills that are owed—or due to my credit card." They write a check, and Allison signs an IOU that they have kept for the past five years. Her loans are detailed in a notebook/log. Allison uses a Nordstrom Visa card to pay her bills, and her parents never refuse to make the payments on the card. In 2017, her parents purchased cars for her and Ben as gifts.

¶ 18 Allison's financial affidavit showed loans from her parents amounting to approximately $700,000 and an additional loan for attorney fees of approximately $800,000. The affidavit showed that Allison was making monthly payments of $7656.65 on the Visa account. The affidavit also indicated that, currently, Allison is making no payments on the loans from her parents.

¶ 19 The trial court determined that Mason proved a substantial change in circumstances where one of the children has turned 18 years old and his income has decreased since the dissolution judgment. The court also found that the decrease in Mason's income was not the result of bad faith or for the purpose of avoiding his obligations. After considering the factors listed in section 510(a-5) and 504(a) of the Marriage Act, the court found that although Mason's income has decreased, the other factors were the same as at the time of judgment. Therefore, Allison remained a candidate for maintenance.

¶ 20 In calculating Mason's income, the court looked at the money he received from the Chafee Trust and his gross income from Raymond James. The court...

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