In re Britton
| Decision Date | 24 February 2022 |
| Docket Number | 5-21-0065 |
| Parties | IN RE MARRIAGE OF Kristi BRITTON, Petitioner-Appellee, and Brent Britton, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
David M. Gotzh, of Chicago, for appellant.
Gerald S. Reed, of Reed, Heller & Cannell, of Murphysboro, for appellee.
¶ 1 Respondent, Brent Britton, appeals the trial court's orders that (1) required him to reimburse petitioner, Kristi Britton, for one-half of the cost of voluntarily obtained supplemental insurance, (2) shifted Brent's obligation to pay the children's health insurance premiums to Kristi, (3) ordered Brent to reimburse Kristi for educational expenses incurred prior to the filing of the modification petition, (4) imputed income to Brent, (5) determined Brent's gross monthly income was $14,529, (6) calculated Kristi's gross income without interest or capital gain stemming from a stock sale, and (7) calculated child support and awarded arrearage based on the erroneous findings for income. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.
¶ 3 Kristi and Brent were divorced on April 25, 2012. Two children were born of the marriage, K.B., born May 2, 2003, and A.B., born February 9, 2005. The parties entered into a marital settlement agreement (MSA) and a joint parenting agreement (JPA) that were incorporated into the judgment of dissolution. Pursuant to the JPA, the parties shared joint custody of the children with Kristi as the residential parent and Brent receiving parenting time. Pursuant to the MSA, Brent would pay $200 per week in child support and maintain health insurance on the minor children with each party responsible for "one half of all deductibles and expenses *** not covered by insurance." The parties also agreed to split the expenses for the children's extracurricular activities up to $500 per year. Based on the dissolution documents, both Brent and Kristi were employed; held equal shares of Britton Trucking, Inc., Britton's Wrecker Service, Inc., and Britton Transportation Services, Inc.; and would continue to use their company cars following the divorce. No income was listed for either party.
¶ 4 On October 17, 2017, Kristi filed a petition to modify claiming that when the parties divorced, Brent's income was approximately $1030 per week. She alleged a substantial change in circumstances since the dissolution, claiming that Brent's income had increased substantially, the needs of the minor children had changed, and the cost of providing for those needs had increased. On November 22, 2017, Brent admitted his income had increased substantially but denied the needs of the minor children had changed and the cost of providing for those needs increased.
¶ 5 On December 12, 2017, Brent filed a counterpetition to modify the JPA stating, inter alia , that despite the joint custody classification, Kristi involved the children in numerous extracurricular activities without Brent's agreement, which limited, hampered, or undermined his parenting time. Brent also contended that Kristi had enrolled K.B. in a private school in Missouri, against his wishes, which required him to drive 75-80 minutes each way to pick up and drop off K.B. at school. Brent also filed a petition for rule to show regarding his allegedly disrupted parenting time.
¶ 6 Kristi responded on December 21, 2017, admitting, inter alia , the parties mutually modified the prior parenting time agreement and that she permitted the children to become involved in the extracurricular activities. She affirmatively stated that she was "under no obligation to discuss or obtain the agreement of [Brent]" and claimed that prior to the filing he "never objected to the children's extra-curricular activities or the time they occur."
¶ 7 Following unsuccessful mediation, Kristi filed her financial affidavit on March 5, 2018. The affidavit listed her gross income in 2017 as $157,533, which included pension fund money used to build a house. It further listed her gross income in 2018 (through February 15, 2018) as $8070.10. Her gross monthly income, before taxes, was $7603.19, which included her employment ($4635.92), child support ($866.67), and payments for her shares of the Britton businesses ($1050.30). The document also revealed that her new husband's medical insurance policy covered her and the children.
¶ 8 On December 27, 2018, Kristi filed a petition to allow attorney fees stating she was without adequate funds to pay her attorney fees and that Brent earned "significant sums of money" and was "well able to pay" Kristi's incurred attorney fees. On the same date, Kristi also filed a petition for rule to show cause claiming that Brent refused and failed to pay reimbursement related to medical bills that were not covered by insurance and the children's extracurricular activities. Brent responded on January 10, 2019, admitting he was gainfully employed but denied the remainder of the allegations. Brent also denied that he refused to pay any medical expenses or his portion of the children's extracurricular activities.
¶ 9 Kristi filed an updated financial affidavit on July 25, 2019, and an amended financial affidavit on August 7, 2019. The amended financial affidavit listed gross monthly income of $6190.84. The document claimed that Kristi received $2100.60 from Brent "as part of their property settlement." The document again noted that Kristi and the minor children were covered under her new husband's health insurance policy.
¶ 10 On July 31, 2019, Brent filed a pretrial memorandum that included a financial affidavit dated July 30, 2019. The affidavit stated his gross income in 2018 was $55,768 and $21,750 in 2019 (through July 26, 2019). The affidavit listed Brent's gross monthly income as $4902.42. He claimed that his total available monthly income was negative $2594.31. Brent's tax returns were attached to the pleading.
¶ 11 On August 8, 2019, the parties proceeded to hearing. The trial court noted all pending pleadings and stated the parties would present the evidence and testimony related to the children first; thereafter, the court would proceed on the financial issues. Following the hearing, the trial court ordered joint decision making as to the extracurricular activities, stated that K.B. would continue to attend private school in Missouri, and amended the parenting time schedule to provide additional time to Brent so long as the children were taken to all scheduled activities. The order reserved ruling on holiday parenting time.
¶ 12 Kristi filed a "second corrected child support calculation" on October 30, 2019, based on the new parenting time allocation. The document listed Brent's income as $176,569 in 2018, $216,305 in 2017, and $293,917 in 2016. The income amounts included section 179 of the Internal Revenue Code ( 26 U.S.C. § 179 (2018) ) deductions of $107,700 in 2018, $174,322 in 2017, and $118,133 in 2016 reported on Brent's business taxes. Kristi averaged these amounts, divided the average by 12, and claimed Brent's monthly income was $19,077.
¶ 13 On October 31, 2019, the trial court issued its order as to holiday parenting time and reset the financial hearing for a later date. At the hearing, Kristi tendered 22 exhibits for the financial hearing with no objection from Brent, and Brent submitted an amended financial affidavit. Brent's amended financial affidavit listed gross income of $98,070.01 in 2018 and total gross income in 2019 (through October 25, 2019) as $73,495.80. The affidavit listed $6618.33 in monthly gross income comprised of $3117.50 in regular employment earnings, $135.42 in rental income, $2613.87 in distribution and draws, and $1618.21 in-kind payment of health insurance from his business. The affidavit listed Brent's total available monthly income as negative $3447.63.
¶ 14 On December 26, 2019, Kristi filed an amended petition to modify. The amended petition requested an increase in child support (as before) and contribution from Brent towards the children's educational expenses, including private school tuition, fees, books, lunches, and extracurricular activities. Brent's January 13, 2020, response denied that his income increased significantly but agreed the needs of the minor children changed and increased. Brent admitted the remaining allegations but denied Kristi was the sole source of funding for private school because he had been paying child support for the benefit of the children since the judgment of dissolution was entered and contended both parties should contribute to the support of the children.
¶ 15 On February 13, 2020, the case proceeded to hearing on the remaining financial issues. Kristi testified that she was 39 years old and was employed by University of Illinois Extension where she worked as a youth development educator. She stated that her amended financial affidavit incorporated the raise she received the previous year, and she recently received another raise. Kristi stated the children attended school at Saxony Lutheran in Jackson, Missouri, and the monthly tuition was $1075. The children's lunches were an additional $140 per month. She stated that she had always been the only person to pay their tuition and that the children attended private school since kindergarten. Kristi stated that she sold her ownership of the Britton businesses back to Brent and those monthly amounts were included in her income on her financial affidavit. On cross-examination, Kristi confirmed that her future State of Illinois salary was $57,907.25. She also had additional income in the amount of $2100 per month for the sale of the business stock to Brent. She admitted the total amount received was $22,897 and listed as a capital gain on her 2018 tax return.
¶ 16 Brent...
To continue reading
Request your trial