In re Marriage of Baylor

• Decision Date: 03 August 2001
• Docket Number: No. 4-00-0983.,4-00-0983.
• Citation: 324 Ill. App.3d 213,753 N.E.2d 1264,257 Ill.Dec. 638
• Parties: In re the MARRIAGE OF Grant A. BAYLOR, Petitioner-Appellant, and Kim K. Baylor, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

753 N.E.2d 1264

324 Ill. App.3d 213

257 Ill.Dec. 638

In re the MARRIAGE OF Grant A. BAYLOR, Petitioner-Appellant, and

Kim K. Baylor, Respondent-Appellee.

No. 4-00-0983.

Appellate Court of Illinois, Fourth District.

August 3, 2001.

Charles S. Watson, Watson Law Offices, Springfield, for Grant Baylor.

Walter R. Filbert, Feldman, Wasser, Draper & Benson, Springfield, for Kim K. Baylor.

Presiding Justice STEIGMANN delivered the opinion of the court:

In September 1995, the trial court entered a judgment dissolving the marriage between petitioner, Grant A. Baylor, and respondent, Kim K. Baylor, and incorporating the parties' marital and joint-parenting agreements. Those agreements provided that (1) the parties would share joint custody of their child, Blake (born November 19, 1993); (2) Blake would live with Grant; (3) Kim would have reasonable visitation; and (4) Kim was financially able to pay child support. (The record does not show that the dissolution judgment set a child support amount.)

In November 1999, Grant filed a petition requesting that the trial court (1) order Kim to pay reasonable child support and (2) terminate joint custody. In March 2000, Kim filed a counter-petition seeking custody of Blake and child support. Following a June 2000 hearing, the court (1) denied Grant's petition to terminate joint custody; (2) denied Kim's petition to change custody; (3) modified Kim's visitation schedule; and (4) ordered Kim to pay $350 per month in child support. In October 2000, Grant filed a motion to reconsider, which the court later denied.

Grant appeals, arguing only that the trial court erred by failing to include Kim's military allowances in calculating her net income to determine her child support obligation. We reverse and remand with directions.

I. BACKGROUND

The evidence presented at the June 2000 hearing showed the following. Kim was a noncommissioned officer in the United States Air Force. In addition to her gross annual base pay, which totaled $21,960, Kim earned approximately $2,678 annually from nonmilitary part-time work. She also received certain military allowances to supplement her off-base housing and other living expenses. Those military allowances, which totaled $9,876.92 annually, were not subject to federal income tax.

Following the hearing, the trial court took the matter under advisement. In September 2000, the court entered an order providing, in pertinent part, as follows:

"Child support should be set at $350 per month. This amount slightly exceeds the guideline amount [(750 ILCS 5/505(a)(1) (West Supp.1999) (effective June 1, 2000))] based upon Kim Baylor's net income of $20,000 per year from military pay and outside employment."

In October 2000, Grant filed a motion to reconsider, arguing, inter alia, that (1) in In re Marriage of McGowan, 265 Ill. App.3d 976, 980, 202 Ill.Dec. 827, 638 N.E.2d 695, 698 (1994), the First District Appellate Court held that military allowances should be included in calculating a noncustodial parent's net income for child-support purposes; and (2) the trial court should have included Kim's military allowances in its calculation of her net income. Following a hearing, the court denied Grant's motion, stating, in pertinent part, as follows:

"With respect to the net income, [Grant's counsel] has raised a very good point. However, I just don't believe it's a point that requires me to get into the types of calculations that I think are far beyond my abilities insofar as making those determinations of net income and things of that nature."

This appeal followed.

II. ANALYSIS

A. Kim's Motion for Attorney Fees

Initially, we address Kim's motion requesting that we award her reasonable attorney fees incurred for this appeal, which was taken with this case. This court is without jurisdiction to award attorney fees. In re Marriage of Emery, 179 Ill.App.3d 744, 752, 128 Ill.Dec. 569, 534 N.E.2d 1014, 1019 (1989); In re Marriage of Stockton, 169 Ill.App.3d 318, 329, 119 Ill.Dec. 817, 523 N.E.2d 573, 581 (1988). Kim should have addressed the issue of appellate attorney fees to the trial court. See In re Marriage of Talty, 166 Ill.2d 232, 240, 209 Ill.Dec. 790, 652 N.E.2d 330, 334 (1995) (section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a)(3) (West 1998)) "expressly authorizes a circuit court to make a prospective award of attorney fees to a party for the defense of an appeal").

B. The Trial Court's Calculation of Kim's Net Income

Grant argues that the trial court erred by failing to include Kim's military allowances in calculating her net income to determine her child support obligation. We agree.

This issue involves the application of law to undisputed facts; therefore, our review is de novo. See Gay v. Dunlap, 279 Ill.App.3d 140, 145, 215 Ill.Dec. 691, 664 N.E.2d 88, 92 (1996) (reviewing de novo whether the trial court should have allowed certain deductions from the noncustodial parent's gross income to determine his child support obligation).

The starting point for determining a child support award is to arrive at the noncustodial parent's net income. 750 ILCS 5/505 (West Supp.1999) (effective June 1, 2000); In re Marriage of Benish, 273 Ill.App.3d 955, 958, 210 Ill.Dec. 468, 653 N.E.2d 55, 57 (1995). Section 505(a)(3) of the Act defines "net income" as "the total of all income from all sources," minus the following deductions: (1) federal income tax; (2) state income tax; (3) social security payments; (4) mandatory retirement contributions required by law or as a condition of employment; (5) union dues; (6) dependent and individual health insurance premiums; (7) prior child support obligations or maintenance actually paid under a court order; and (8) "[e]xpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts." 750 ILCS 5/505(a)(3) (West Supp.1999) (effective June 1, 2000).

In McGowan, 265 Ill.App.3d at 978, 202 Ill.Dec. 827, 638 N.E.2d at 697, the First District Appellate Court held that the plain, broad language of section 505 of the Act "must be given effect to include military allowances in the computation of child support." In so holding, the McGowan court reasoned as follows: (1) the exemption of military allowances from federal income tax was not sufficient to shield the allowances from inclusion in a party's net income; (2) whether military allowances "can be reached by garnishment is also not appropriate in considering what is included in the child support formula" (see Rose v. Rose, 481 U.S. 619, 635, 107 S.Ct. 2029, 2039, 95 L.Ed.2d 599, 614 (1987)) ("while it may be true that [veterans' disability benefits] are exempt from garnishment or attachment while in the hands of the [a]dministrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require that veteran to use them to satisfy an order of child support"); and (3) if the legislature had intended to define income for child support purposes in a manner parallel to the income tax definition, then the language of section 505 of the Act would so indicate. McGowan, 265 Ill.App.3d at 979, 202 Ill.Dec. 827, 638 N.E.2d at 697-98.

We agree with McGowan and thus conclude that the trial court erred by failing to include Kim's military allowances in calculating her net income. Accordingly, we reverse the trial court's child support determination and remand for further proceedings. On remand, the court should do the following, which are the steps that the court should have taken when it first addressed the issue of child support:

(1) Determine Kim's net income, pursuant to section 505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West Supp.1999) (effective June 1, 2000)), including her military allowances. Although not statutorily required, it would be desirable for the court to state how it calculated net income.

(2) Determine the amount of child support that the statutory guidelines would require Kim to pay. See 750 ILCS 5/505(a)(1) (West Supp.1999) (effective June 1, 2000) (under the Act, a presumption exists that the stated percentage of the noncustodial parent's income is an appropriate level of support; the guideline amount for one child is 20% of the noncustodial parent's net income).

(3) Indicate either that (a) it is ordering Kim to pay child support based on the statutory guidelines, or (b) after considering relevant factors under section 505(a)(2) of the Act (see 750 ILCS 5/505(a)(2) (West Supp.1999) (effective June 1, 2000)), including Blake's needs and resources, the needs and resources of both parties, and the standard of living Blake would have enjoyed had the marriage not been dissolved, it is deviating from the statutory guidelines. If the court deviates from the guidelines, it must explicitly state the reasons why it has chosen to do so. 750 ILCS 5/505(a)(2) (West Supp.1999) (effective June 1, 2000); see In re Marriage of Stanley, 279 Ill.App.3d 1083, 1085, 216 Ill. Dec. 890, 666 N.E.2d 340, 341 (1996).

As a final matter, we note that the trial court erred by failing to follow McGowan. "It is the absolute duty of the circuit court to follow the decisions of the appellate court." In re A.A., 181 Ill.2d 32, 36, 228 Ill.Dec. 905, 690 N.E.2d 980, 982 (1998). This was not a case in which the trial court was faced with conflicting decisions from various appellate districts, and, in the absence of controlling authority from its home district, was free to choose between the decisions of other appellate districts. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill.2d 533, 540, 178 Ill.Dec. 745, 605 N.E.2d 539, 542 (1992). Instead, the only Illinois court to rule upon the issue of whether military allowances should be included in the calculation of net income for child support...