In re Gabriel
| Decision Date | 31 March 2020 |
| Docket Number | No. 1-18-2710,1-18-2710 |
| Citation | 2020 IL App (1st) 182710,157 N.E.3d 992,441 Ill.Dec. 635 |
| Parties | IN RE MARRIAGE OF Michelle GABRIEL, Petitioner-Appellee, and Hassamo SHAMOUN, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Alexander Michael, of Michael D. Ettinger and Associates, of Palos Heights, for appellant.
Marvin J. Leavitt, David C. Adams, and Laura M. Presto, of Grund & Leavitt, P.C., of Highland Park, for appellee.
¶ 1 In this appeal from a judgment of dissolution of marriage, respondent Hassamo (Sam) Shamoun challenges the trial court's awards of maintenance, child support, and attorney fees to petitioner Michelle Gabriel, as well as the court's division of the marital estate. For the following reasons, we affirm the trial court's awards of maintenance and attorney fees, but we reverse and remand with respect to the child support award because the court miscalculated Sam's guideline support obligation. We conclude that we lack jurisdiction to review the trial court's order dividing the marital estate because Sam's notice of appeal did not identify that part of the court's judgment.1
¶ 4 Sam and Michelle were married in August 2008 and have two minor children.
In October 2017, Michelle filed a petition for dissolution of marriage, seeking maintenance, child support, and attorney fees, as well as an equitable division of the parties' marital estate. She also asked the court to grant her significant decision-making responsibilities for the children.
¶ 5 In November 2017, at Michelle's request, the trial court entered a two-year order of protection prohibiting Sam from harassing, stalking, or physically abusing Michelle, granting Michelle sole possession of the parties' marital residence, and prohibiting Sam from entering the residence or Michelle's place of employment.
¶ 7 In March 2018, the trial court granted Michelle's request for temporary maintenance and child support, ordering Sam to pay $1,500 per month in unallocated support. When Sam failed to comply, Michelle filed a petition for a rule to show cause to hold him in contempt and requested attorney fees for her efforts to enforce the order. In June 2018, the court ordered Sam to pay Michelle $3,083.33 in overdue support and $1,600 in attorney fees.
¶ 8 In August 2018, in her post-trial petition for attorney fees, Michelle alleged that Sam had not complied with the court's June 2018 order. The court allowed Sam time to respond and set the matter for a hearing, but Sam failed to file a response or appear for the hearing. The court found that Sam had not complied with the June 2018 order and directed him to pay the amount due by October 2. When Sam again failed to comply, the court extended the deadline to October 8. On that date, Sam paid the past due support and related attorney fees.
¶ 9 Michelle then filed a petition for additional attorney fees arising from her attempts to enforce the June 2018 order. On November 19, 2018, the court ordered Sam to pay Michelle an additional $1,917.50 in attorney fees within seven days. When Sam failed to comply with that order, the court increased the amount of attorney fees by $225, issued and stayed a body attachment, and indicated that the stay would be lifted if Sam failed to pay the full amount by December 4, 2018. The record does not reveal whether Sam complied with this order.
¶ 11 In February 2018, Michelle served a notice on Sam to produce discovery documents, but neither the notice nor any description of the documents requested is included in the record on appeal. Sometime before trial, Michelle filed a motion in limine related to Sam's failure to comply with her discovery requests. The motion is likewise missing from the record on appeal. In addition, there is no transcript of any hearing on the motion in the record. The trial court granted the motion based on Sam's "deficient production of documents" and failure "to provide updated discovery." As a result, the court barred Sam "from testifying as to new information not timely disclosed or offering documents into evidence other than what had been previously produced."
¶ 12 The trial court held a two-day bench trial in August 2018, but there is no trial transcript in the record on appeal. Following the trial, Michelle filed a petition for attorney fees. Sam did not respond to the petition and neither he nor his counsel appeared at the hearing on the petition. The record contains no transcript of the hearing, which was held in Sam's absence.
¶ 14 The trial court entered judgment on November 28, 2018, dissolving the parties' marriage and resolving the ancillary issues of maintenance, child support, division of the marital estate, attorney fees, and allocation of parenting time and parental decision-making responsibilities.
¶ 15 The court began by determining the parties' respective incomes for maintenance and child support purposes. The court found that Michelle's gross annual income was $27,000. Sam's income, however, was "difficult to ascertain" because his testimony "was inconsistent, contradicted by other evidence, and not credible." As the court recounted, Sam testified that he was employed as a Christian apologist and Bible teacher, but he "could not remember" his income "for 2016, 2017, or 2018 year to date." Although Sam's 2016 W-2 form reported gross income of $116,500, he testified (and Michelle and the court accepted) that his gross income that year was only $100,000.
¶ 16 The income reported on Sam's 2017 W-2 form "dropped to $50,081 without explanation." Sam claimed that his 2017 income was even lower than the amount reported on his W-2, but he "could not credibly explain the discrepancy or inconsistencies [in] his statements." In addition, Sam conceded that he "regularly receives gifts and donations" not reported on his W-2 forms, but he testified that he "does not consider [those sums] to be income." Although "[n]o records of the actual amount of this additional income" were presented at trial, the court was able to identify an additional $15,078.24 of income that Sam received in 2017 based on deposits made to one of his checking accounts, raising his 2017 gross income to at least $65,159.24. However, as the court noted, Sam testified that gifts and donations were also deposited to his Patreon accounts,2 but he "provided no documents" for those accounts and could not remember "what the exact amounts of deposits [to them] have been from year to year."
¶ 17 Because Sam's income remained "difficult to ascertain with specificity" due to his lack of credibility and the fact that he had "additional income available to him other than what [he] disclosed," the court deemed it appropriate to use the average of his identifiable income in 2016 and 2017 when determining his maintenance and child support obligations. Using this method, the court found that Sam's gross annual income for support purposes was $82,579.62, although for unexplained reasons it used the slightly lower figure of $82,572 in the worksheets it used to calculate its maintenance and child support awards.
¶ 18 After determining the parties' respective incomes, the court concluded that Michelle was entitled to maintenance based on "her historical earnings[,] her current income and potential earning capacity especially in comparison to Sam's[,] the standard of living by the parties during the marriage[,] and her needs as established during the marriage." Under the statutory guidelines, the court calculated the amount of maintenance by subtracting 20% of Michelle's gross annual income from 30% of Sam's gross annual income but capping the sum of the resulting maintenance award and Michelle's gross income at 40% of the parties' combined gross income. See 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). Applying this formula, the court awarded Michelle maintenance of $1,402.42 per month for 43 months. See 750 ILCS 5/504(b-1)(1)(B) (West Supp. 2017) ().3
¶ 19 The trial court then calculated Sam's guideline child support obligation. That figure is calculated by taking each party's monthly net income; adding those numbers to arrive at the parties' combined monthly net income; determining the parties' combined support obligation based on a schedule established by the Illinois Department of Healthcare and Family Services, which "reflects the percentage of combined net income that parents living in the same household in this State ordinarily spend on their child[ren]," 750 ILCS 5/505(a)(1) (West Supp. 2017) ; and then calculating each party's share of the combined support obligation based on that party's share of their combined net income. See 750 ILCS 5/505(a)(1.5) (West Supp. 2017).
¶ 20 The court calculated each party's net income by subtracting the party's federal and state income taxes, Social Security and Medicare taxes, and self-employment taxes from each party's gross income. According to the court's calculations, Sam's monthly net income was $5,998 and Michelle's monthly net income was $2,470. The court then multiplied Sam's share of the parties' combined net income (70.83%) by the parties' combined support obligation under the guidelines schedule ($1,956) to arrive at Sam's guideline child support obligation of $1,385 per month. The court concluded, however, that an "upward deviation" from the guidelines was "appropriate" based on "the children's needs and [the] history of this case, Sam's demonstrated history of non-compliance with support, * * * Sam's lack of overnights and [Michelle's] disproportionate exercise of parenting time, and [the] fact that Sam receives additional income...
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