In re Marriage of Sweet

• Decision Date: 05 September 2000
• Docket Number: No. 2-99-1177.,2-99-1177.
• Citation: 735 N.E.2d 1037,249 Ill.Dec. 212,316 Ill. App.3d 101
• Court: United States Appellate Court of Illinois
• Parties: In re MARRIAGE OF Patricia Ann SWEET n/k/a Patricia Ann Chriss, Petitioner-Appellee, and Robert James Sweet, Respondent-Appellant.

735 N.E.2d 1037

316 Ill. App.3d 101

249 Ill.Dec. 212

In re MARRIAGE OF Patricia Ann SWEET n/k/a Patricia Ann Chriss, Petitioner-Appellee, and

Robert James Sweet, Respondent-Appellant.

No. 2-99-1177.

Appellate Court of Illinois, Second District.

September 5, 2000.

David M. Olson, Beckmire, Garrity, Vogt & Olson, Freeport, for Robert James Sweet.

Richard J. Hauser, Mahoney & Hauser, Ltd., Freeport, for Patricia Ann Sweet.

Justice McLAREN delivered the opinion of the court:

Respondent, Robert James Sweet, appeals the circuit court's order that increased to $170 per week his child support obligation to petitioner, Patricia Ann Sweet, now known as Patricia Ann Chriss. Respondent contends that (1) the trial court violated his constitutional right to pursue his chosen profession by ordering him to find other employment; (2) the court erred in modifying child support in the absence of evidence of changed circumstances; (3) the court abused its discretion in ordering a fully employed child support obligor to seek other employment; (4) the court failed to state its reasons for deviating from the statutory guidelines; and (5) the court abused its discretion in making the increase retroactive to the date the petition was filed.

The parties were married in 1979. They had two children together, Adam, born in 1981, and Amy, born in 1984. The circuit court dissolved their marriage in 1988. A settlement agreement incorporated into the judgment awarded petitioner custody of the children and required respondent to pay $75 weekly as child support. The parties later agreed to two increases in child support so that when the present petition was filed respondent was paying $96 per week.

Both parties have since remarried. At the time of the dissolution, respondent was employed as an exterminator with his take-home pay averaging $1,250 per month. Petitioner was and is a self-employed child-care provider. In 1992, respondent started his own exterminating business. In 1998, he purchased a new, $28,000 truck for his business. According to his 1998 tax return, the enterprise had gross receipts of $28,685 and earned a net profit of $11,187. Among the deductions was $4,279 for depreciation, which respondent testified was for the truck. In 1997, the business earned a net profit of $8,352. Respondent admitted filling out a loan application in which he stated that his monthly net income was $3,600. He stated that he did so in order to qualify for a lower interest rate.

In January 1999, petitioner filed a petition to increase child support. At the hearing, petitioner testified that the children's expenses had increased. Specifically, she was paying for car insurance for Adam, the children ate more, their clothes cost more, and they had additional expenses for social activities and optical and dental services.

At the conclusion of the initial hearing, the court questioned respondent's credibility because he had admittedly misstated his income in a loan application. The court continued as follows:

"He reports an income of $11,187. There are winos and bustouts that appear in this court on Thursday morning that make that kind of money and they get hired, not that you're in that category. But, however, there is no reason that these children should suffer while you drive around in a new truck at a deadend job."

The court took petitioner's petition under advisement, temporarily continuing respondent's child support obligation at $96 per week. The court continued the matter until July 15 and ordered respondent to apply for employment with at least 10 firms. The court stated as follows:

"A man of your health and your stature and your ability can certainly make more in today's labor market than $11,000 a year but I'm not going to sit here and have your children suffer because you choose to become involved in such an enterprise that produces so little."

The court denied respondent's motion to reconsider or clarify its order, stating:

"If he wants to have a deadend job that's fine but I'm going to set the support commensurate with his ability. You know, he wants to have a hobby farm going around and spraying roaches for eight hundred bucks a month that's his right, but he's not going to do it at the expenses [sic] of his children."

On July 15, respondent reported that he had not conducted a job search. Petitioner's attorney argued that respondent's support obligation should be based on the income he listed in his loan application. Counsel argued that the guideline amount—25% of net income for two children—applied to the $3,000 (actually $3,600) monthly income listed in the loan application was approximately $170 per week. Respondent's attorney replied that the court had already found respondent's income to be as stated in his tax returns.

The court stated:

"Well, as I recall it was not necessarily a finding that his income was as he stated. It was a finding that he either lied in court or lied on a loan application, either one of which is a felony under the laws of the State of Illinois. Further by his own testimony he indicated that he bought a brand new truck to ride around town performing a deadend business that nobody wanted to pay for and that he only according to his testimony netted about nine grand a year. And under the circumstances I advised the defendant [sic] that I didn't think that his children should bear the brunt of his new truck so that he could ride around doing nothing. * * * As far as I'm concerned we have an individual here that is either misrepresenting his income or willfully refuses to go to work and support his children even though he is able to do so."

The court increased respondent's child support obligation to $170 retroactive to the date the petition was filed. Respondent perfected this appeal. Respondent first contends that the court violated his constitutional right to pursue the career of his choice. This argument is easily disposed of because the court did no such thing. The court specifically stated that if respondent wants to continue working as an exterminator "that's fine" and "that's his right." The court merely required respondent to pay a greater amount of child support. Respondent may be able to pay this additional amount because his income is actually higher than what he reported for tax purposes. He may be able to pay an additional amount by working more diligently at his current job, by supplementing his income with part-time work, by cutting expenses elsewhere, by using savings, or by winning the lottery. All of these options would permit respondent to meet his child support obligation without abandoning his chosen career. Thus, the cases respondent cites, dealing with an expectancy of future employment, simply do not apply.

Respondent next contends that there was no evidence of changed circumstances to justify an increase in child support. A child support judgment can be modified only upon a showing of a substantial change in circumstances. In re Marriage of Pylawka, 277 Ill.App.3d 728, 731, 214 Ill.Dec. 651, 661 N.E.2d 505 (1996); In re Marriage of Stockton, 169 Ill.App.3d 318, 325, 119 Ill.Dec. 817, 523 N.E.2d 573 (1988). The party seeking the modification must show both a change in the children's needs and in the noncustodial parent's ability to pay. Pylawka, 277 Ill. App.3d at 731, 214 Ill.Dec. 651, 661 N.E.2d 505; Dull v. Dull, 73 Ill.App.3d 1015, 1019, 29 Ill.Dec. 864, 392 N.E.2d 421 (1979). The setting or modification of child support is within the trial court's discretion and will not be reversed absent an abuse of that discretion. In re Marriage of Mitteer, 241 Ill.App.3d 217, 227, 181 Ill.Dec. 534, 608 N.E.2d 607 (1993).

Respondent admits that his earnings have increased every year since he started his business. His tax returns show that the business netted more money in 1998 than in previous years. Therefore, the first element of changed circumstances is satisfied. Moreover, an increase in children's needs can be presumed on the basis that they have grown older and the cost of living has risen. Pylawka, 277 Ill.App.3d at 731, 214 Ill.Dec. 651, 661 N.E.2d 505. Here, petitioner testified that the children's expenses had increased since the most recent modification of the child support order. Specifically, she said that the children ate more, their clothes cost more, and they had additional expenses for social activities. Contrary to respondent's argument, petitioner was not required to list specific dollar amounts for each expense item. Evidence existed for the court to conclude that there had been a substantial change of circumstances.

Respondent's third contention is that the trial court lacked the authority to order him to seek other employment. He complains that the court could not order him to conduct a job search. This issue is essentially moot because the court never attempted to enforce its order that respondent apply to 10 companies. When respondent simply ignored the job-search requirement, the court did not hold him in contempt or undertake any other coercive measure. Thus, respondent may not complain about this order. See In re Marriage of Ruchala, 208 Ill.App.3d 971, 977, 153 Ill.Dec. 767, 567 N.E.2d 725 (1991) (contempt order not final and appealable until court imposes sanction).

Respondent contends, however, that although the court did not seek to enforce the job-search order, the court continued with that line of thinking by raising child support to a level commensurate with the income the court thought respondent should be making. Respondent argues that the court could not coerce him into looking for another job merely because it disapproved of his chosen field of endeavor. We disagree. Although we have found no Illinois case precisely on point, courts' authority to compel parties to family law proceedings to seek more lucrative employment, or to pay support at a level as if they had done so, is well established.

A party seeking to decrease his or her child...