In re Marriage of Eberhardt

• Decision Date: 12 December 2008
• Docket Number: No. 1-07-0135.,No. 1-07-2142.,1-07-0135.,1-07-2142.
• Citation: 900 N.E.2d 319
• Parties: In re MARRIAGE OF Karen F. EBERHARDT, Petitioner-Appellee, and Stephen E. Eberhardt, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

900 N.E.2d 319

In re MARRIAGE OF Karen F. EBERHARDT, Petitioner-Appellee, and Stephen E. Eberhardt, Respondent-Appellant.

No. 1-07-0135.

No. 1-07-2142.

Appellate Court of Illinois, First District, Sixth Division.

December 12, 2008.

Stephen E. Eberhardt, of Tinley Park, IL, for Appellant.

Robert H. Farley, Jr., Ltd., of Naperville, IL, for Appellee.

Justice CAHILL delivered the opinion of the court:

Respondent Stephen E. Eberhardt appeals the trial court's denial of his postjudgment motions following the dissolution of his marriage to petitioner Karen F. Eberhardt. He argues the trial court erred in: (1) denying his motion to modify child support by "double counting" his withdrawals from individual retirement accounts (IRAs) he received in the property settlement; (2) denying his motion for sanctions; (3) ordering him to pay part of Karen's attorney fees; and (4) denying his claimed exemptions to garnishment. We affirm in part, reverse in part and remand for a hearing on attorney fees.

The judgment of dissolution was entered in December 2005. Karen and Stephen were married in 1979 and had three daughters, ages 20, 19 and 13, at the time of the judgment. Karen was given primary custody of 13-year-old Susan. Stephen was ordered to pay $982.58 per month in child support based on 20% of his personal net income as a self-employed attorney. In the allocation of marital assets, Stephen received $154,349.28 from Karen as his share of the equity in the family home. Stephen also received three IRAs.

Two months later, Stephen filed a pro se motion to modify child support. The proceedings on this motion generated other contested rulings on sanctions, attorney fees and garnishment. As a result, two appeals have been consolidated and four overlapping matters are at issue. We will review each of these matters separately, beginning with Stephen's motion for modification of child support.

As a preliminary matter, we deny Karen's motion to strike Stephen's brief and to dismiss this appeal for noncompliance with Supreme Court Rule 341(h)(6) (210 Ill.2d R. 341(h)(6)). This rule requires an appellant's brief to contain "facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record." 210 Ill.2d R. 341(h)(6). It is within our discretion to consider an appeal despite minimal citation to the record in the appellant's statement of facts. Silny v. Lorens, 73 Ill.App.3d 638, 29 Ill.Dec. 710, 392 N.E.2d 267 (1979). Stephen's brief is sufficient for review.

Stephen filed a motion to modify child support on February 23, 2006. He reported a substantial change in circumstances because he had $0 income in the first two months of 2006 and he expected his annual personal income to be substantially less than in 2005. He attached a financial disclosure statement, showing a balance of $71,249.63 in a "house & IRA proceeds account." Karen, who was represented by her brother, attorney Robert H. Farley, Jr., responded. Farley argued Stephen was not entitled to a modification because he had withdrawn the IRA funds he received in the property settlement and such proceeds must be counted as "income" for calculating child support under In re Marriage of Lindman, 356 Ill.App.3d 462, 291 Ill.Dec. 969, 824 N.E.2d 1219 (2005).

Farley also filed a petition for rule to show cause as to why Stephen should not be held in contempt for violating the terms of the dissolution. The allegations were that Stephen: (1) failed to pay child support and health insurance; (2) failed to pay Susan's high school tuition; (3) spent thousands of dollars on White Sox tickets and had $71,000 in a bank account and a $100,000 line of credit while failing to meet his support obligations; (4) failed to pay the college expenses of the couple's two older daughters; (5) failed to pay for Susan's extracurricular activities and uncovered medical expenses; and (6) failed to pay Susan's remaining grammar school expenses. Farley later withdrew the last two claims.

The trial court held a combined hearing on the petition for rule to show cause and on Stephen's motion to modify child support on November 2, 2006. Stephen first objected to exhibits attached to a memorandum Farley had submitted ex parte to the trial judge just days before the hearing. The judge said he had not read Farley's memo or looked at the exhibits and admonished both parties to "follow the rules."

Stephen, Karen and two of their three daughters testified at the hearing. Stephen admitted withdrawing IRA funds of $8,065.24 on January 31, 2006, and $5,759.30 on February 17, 2006. He admitted a financial disclosure statement he submitted on October 1, 2006, did not reflect these withdrawals.

The trial court denied Stephen's motion to reduce child support, finding no substantial change in circumstances. The court also found Stephen in contempt, stating:

"I truly don't understand a record like this where, Mr. Eberhardt, you tell me you get $154,000 in a buyout. You get IRA distributions, which clearly are income. Had you explained a little bit better in terms of your clear and convincing burden that you [paid] debts with these [distributions] and you submitted cancelled checks, receipts for payments, to give me some reason to believe your representations, then maybe you might have something there * * *. * * * [Y]ou just represent these things to me; and you expect me just to accept [them] at face value. That is not what a clear and convincing standard is. It is a higher burden; and if you gave me some documentation to support it, I might be inclined to go along with you. * * * [It] doesn't sound to me like somebody who is trying to be straightforward with this Court. It sounds like somebody who is trying to be evasive and not give me the full picture.

* * * [Y]ou are a private practitioner since [1992] to the time of judgment; and then all of a sudden, after judgment; things go down hill; and you expect me just to accept the fact that business is bad or things are tough out there[?] I understand things * * * go up and down. * * * [B]ut to go straight into the tubes after judgment, that doesn't sound very reasonable to expect this Court to believe you. * * * I don't. * * * [I]t is a very poor record for me to grant you the relief that you have been seeking[,] counsel."

Stephen filed a motion to reconsider, arguing that the trial court erred by double counting his IRA withdrawals and misapplied the law on double counting in In re Marriage of Lindman, 356 Ill.App.3d 462, 291 Ill.Dec. 969, 824 N.E.2d 1219. After a hearing, the trial court denied Stephen's motion for reconsideration:

"I do not believe there is anything inappropriate in considering IRA distributions as being income. I think that your concern about not considering the double counting issue is misguided because that was a small part of the reason for my findings. My concern with your failure to meet your burden was what I perceived as a lack of credibility on your part and your testimony, the lack of support of documentation to support your testimony, the failure to include — even by your own acknowledgment — the IRA on your [financial disclosure affidavit required under the Cook County circuit court rules].

* * *

Further, I have a record where your monies seem to be spent on things other than your court-ordered obligation. * * * [I]f you pay your support[,] everything else is your business; but you are coming to this court asking me to reduce your court-ordered obligation * * *. And it's your burden to show me that change, one, it occurred, and two, it warrants a modification of your court-ordered obligation, and you failed in that regard."

The hearing continued after this ruling with arguments on unresolved motions and petitions, including requests for sanctions and attorney fees. These matters are addressed individually later in this opinion. The court also purged its finding of contempt after Farley reported Stephen had fulfilled his child support obligations.

The modification of child support is governed by section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510 (West 2006)). A parent's child-support obligation may be modified if he or she can show a substantial change in circumstances. 750 ILCS 5/510(a)(1) (West 2006). The party seeking relief has the burden of showing a change in circumstances substantial enough to warrant a change in support. In re Marriage of Singleteary, 293 Ill. App.3d 25, 34, 227 Ill.Dec. 598, 687 N.E.2d 1080 (1997). A change in income is one of the grounds for modification. In re Marriage of Carpenter, 286 Ill.App.3d 969, 974, 222 Ill.Dec. 260, 677 N.E.2d 463 (1997). "Net income" is defined in section 505(a)(3) of the Act as "the total of all income from all sources." 750 ILCS 5/505(a)(3) (West 2006). "[T]he General Assembly has adopted an expansive definition of what constitutes `net income.'" In re Marriage of Rogers, 213 Ill.2d 129, 136, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004). "[T]he relevant focus under section 505 [of the Act (750 ILCS 5/505 (West 2006))] is the parent's economic situation at the time the child support calculations are made by the court." In re Marriage of Rogers, 213 Ill.2d at 138, 289 Ill.Dec. 610, 820 N.E.2d 386.

Stephen argues that the question of whether the trial court erred in counting his IRA withdrawals as income under the Act is a question of law, subject to de novo review, citing In re Marriage of Crook, 211 Ill.2d 437, 442, 286 Ill.Dec. 141, 813 N.E.2d 198 (2004) (when there are no factual or credibility issues, questions of law are reviewed de novo). Statutory interpretation is also subject to de novo review. In re Marriage of Rogers, 213 Ill.2d at 136-37, 289 Ill.Dec. 610, 820 N.E.2d 386.

In Lindman, this court conducted de novo review of the legal question posed here and concluded: "regardless of the property settlement, the disbursements [t...