In re Marriage of Lindman

• Decision Date: 07 March 2005
• Docket Number: No. 2-04-0408.,2-04-0408.
• Citation: 291 Ill.Dec. 969,356 Ill. App.3d 462,824 N.E.2d 1219
• Parties: In re MARRIAGE OF David LINDMAN, Petitioner-Appellant, and Kayla Lindman, n/k/a Kayla Laswell, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

824 N.E.2d 1219

356 Ill. App.3d 462

291 Ill.Dec. 969

In re MARRIAGE OF David LINDMAN, Petitioner-Appellant, and

Kayla Lindman, n/k/a Kayla Laswell, Respondent-Appellee.

No. 2-04-0408.

Appellate Court of Illinois, Second District.

March 7, 2005.

Robert C. Pottinger, Laura A. Baluch, Barrick, Switzer, Long, Balsley & Van Evera, Rockford, for David Lindman.

Ronald T. Wade, Wade & Gorman, Rockford, for Kayla Lindman.

Justice BOWMAN delivered the opinion of the court:

In 1998, petitioner, David Lindman, obtained a court order dissolving his marriage to respondent, Kayla Lindman, n/k/a Kayla Laswell. As part of the dissolution, petitioner was ordered to pay a percentage of his earnings in child support. At the time, petitioner reported annual earnings of about $80,000. Petitioner thereafter moved to modify his child support obligation, and, in 2000, that obligation was reduced. In 2000 and 2001, petitioner reported earnings of well over $100,000. Citing this fact, the circuit court reinstated his original support obligation. Petitioner appeals that decision, arguing that the circuit court erred in including, in its calculation of his net income, money he earned from an individual retirement account (IRA). We disagree and affirm.

I. BACKGROUND

After nearly 19 years of marriage, petitioner divorced respondent in 1998. At the time, their son was 5½ years old.

The marital dissolution order that petitioner obtained incorporated a written agreement between the parties. The agreement provided for, among other things, child custody, child support, and distribution of the marital assets. Pursuant to the agreement, respondent took custody of the parties' child. She also received a few items of marital property, such as a minivan. For his part, petitioner took the house at 4403 Alpine Oaks Lane in Rockford, in which the parties had lived during their marriage. Petitioner also received an IRA. Finally, petitioner agreed to be responsible for maintenance of the Alpine Oaks home, and he also agreed to pay child support.

Around this time, that is the late 1990s, petitioner was reporting annual earnings of about $80,000. In 2000, in addition to his regular employment wages, petitioner received about $75,000 in IRA disbursements. That year, he reported earnings of over $160,000. Nevertheless, he obtained a court order reducing his child support obligation. In 2001, petitioner received about $80,000 in IRA disbursements. That year, despite losing his job because of his alcohol abuse, he reported earnings of over $120,000.

In 2002, the circuit court vacated the temporary order of 2000 and reinstated petitioner's original child support obligation.¹ As a preliminary matter, the circuit court found that petitioner's IRA disbursements were "income" for the purposes of determining the proper amount of his child support obligation. Then, noting that petitioner was reporting higher earnings than he had reported when the initial support order was entered, the circuit court reinstated the original support obligation. That is, it ordered him to pay the same amount of child support he had been required to pay in 1998, when he reported much lower earnings. Apparently unsatisfied with that result, petitioner filed this timely appeal.

II. ANALYSIS

A. The IRA Disbursements are Income

1. Standard of Review

At the outset, we note that there is some confusion regarding the proper standard of review here. Petitioner argues that the standard of review is abuse of discretion. That is, petitioner argues that we should consider whether the circuit court abused its discretion in reinstating his original child support obligation. Petitioner misunderstands his own case. Although the ultimate inquiry here may be whether the circuit court's decision amounted to an abuse of discretion, the more pressing issue, as we see it, is whether the circuit court correctly concluded that disbursements from petitioner's IRA are "income" for the purposes of calculating net income under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 2002)), upon which a child support calculation must be based. The proper construction of section 505 is a question of law. In re Marriage of Rogers, 213 Ill.2d 129, 136-37, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004). Thus, our review is de novo. Lee v. John Deere Insurance Co., 208 Ill.2d 38, 43, 280 Ill.Dec. 523, 802 N.E.2d 774 (2003)

. As the supreme court recently put it:

"Generally speaking, the modification of child support payments lies within the sound discretion of the trial court, and a trial court's order will not be disturbed on appeal absent an abuse of discretion. [Citation.] In this case, however, the only aspect of the circuit court's decision challenged by the father is its interpretation of `net income' under section 505 of the Act * * *. How a statute is interpreted is not a matter left to the trial court's discretion. It presents a question of law, which we review de novo." Rogers,213 Ill.2d at 135-36,289 Ill.Dec. 610,820 N.E.2d 386.

This case is similar to Rogers. However, we must note one difference. The petitioner in Rogers apparently clearly challenged the circuit court's reading of the Act. Rogers, 213 Ill.2d at 135-36, 289 Ill.Dec. 610, 820 N.E.2d 386. Conversely, in the present case, petitioner does not clearly address the circuit court's interpretation of the Act. Instead, as noted above, he claims that the circuit court abused its discretion in including his IRA disbursements in the calculation of his net income. But on the very same page of his brief, he also stresses that the statute makes no mention of such "income." In other words, to the extent petitioner is trying to attack the circuit court's interpretation of the Act, he lumps that argument with his assertion that the circuit court's ultimate calculation of the amount of child support was an abuse of discretion. Nevertheless, we believe that petitioner's first argument is that "income," as used in the Act, does not include his IRA disbursements. After all, "the first step in calculating a parent's `net income' is ascertaining `the total of all income from all sources' received by that parent. That determination, in turn, depends on what items may properly be considered `income.'" Rogers, 213 Ill.2d at 136, 289 Ill.Dec. 610, 820 N.E.2d 386. This being so, in this case, as in Rogers, we must consider whether the items at issue (here, IRA disbursements) are "income" within the meaning of the Act.² Thus, our review of petitioner's first argument is de novo. Lee, 208 Ill.2d at 43,

280 Ill.Dec. 523,

802 N.E.2d 774.

2. Statutory Construction

In reviewing the circuit court's interpretation of the Act, we adhere to well-settled principles of statutory construction. Our primary objective is to determine and give effect to the intent of the legislature. Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill.2d 237, 251, 288 Ill.Dec. 121, 817 N.E.2d 479 (2004). The best indicator of legislative intent is the language of the statute, and we must give that language its plain and ordinary meaning. Caveney v. Bower, 207 Ill.2d 82, 88, 278 Ill.Dec. 1, 797 N.E.2d 596 (2003). We may not read into the clear language of the statute exceptions that the legislature did not express. In re D.L., 191 Ill.2d 1, 9, 245 Ill.Dec. 256, 727 N.E.2d 990 (2000), quoting Garza v. Navistar International Transportation Corp., 172 Ill.2d 373, 378, 217 Ill.Dec. 260, 666 N.E.2d 1198 (1996).

The language of section 505 is expansive. Rogers,213 Ill.2d at 136-37,289 Ill.Dec. 610,820 N.E.2d 386. For purposes of determining the proper amount of child support, section 505 states that "net income" is "the total of all income from all sources," minus certain specified deductions (more on these in part "B" below). 750 ILCS 5/505(a)(3) (West 2002). The Act does not define "income." "In the absence of a statutory definition[,] * * * an undefined word must be given its ordinary and popularly understood meaning." In re Ryan B., 212 Ill.2d 226, 232, 288 Ill.Dec. 137, 817 N.E.2d 495 (2004). The supreme court has counseled that, consistent with its ordinary meaning, "income" is "`something that comes in as an increment or addition * * *: a gain * * * that is usu[ally] measured in money.'" Rogers,213 Ill.2d at 136,289 Ill.Dec. 610,820 N.E.2d 386, quoting Webster's Third New International Dictionary 1143 (1986). Additionally, "income" may be defined as the money or payment received from a variety of sources, including investments. Rogers,213 Ill.2d at 136-37,289 Ill.Dec. 610,820 N.E.2d 386, quoting Black's Law Dictionary 778 (8th ed.2004).

Consistent with the above understanding, Illinois courts have concluded that, for purposes of calculating child support, net income includes such items as a lump-sum worker's compensation award (In re Marriage of Dodds, 222 Ill.App.3d 99, 164 Ill.Dec. 692, 583 N.E.2d 608 (1991)), a military allowance (In re Marriage of McGowan, 265 Ill.App.3d 976, 202 Ill.Dec. 827, 638 N.E.2d 695 (1994)), an employee's deferred compensation (Posey v. Tate, 275 Ill.App.3d 822, 212 Ill.Dec. 69, 656 N.E.2d 222 (1995)), and even the proceeds from a firefighter's pension (People ex rel. Myers v. Kidd, 308 Ill.App.3d 593, 242 Ill.Dec. 170, 720 N.E.2d 1125 (1999)).

We see no reason to distinguish IRA disbursements from these items. Like all of these items, IRA disbursements are a gain that may be measured in monetary form. Rogers, 213 Ill.2d at 136-37, 289 Ill.Dec. 610, 820 N.E.2d 386. Moreover, IRA disbursements are monies received from an investment, that is, an investment in an IRA. See Black's Law Dictionary 789 (8th ed.2004); see also http://www.investorwords.com /2641/IRA.html (last visited December 22, 2004) (defining an "IRA" as "[a] tax-deferred retirement account for an individual * * * with earnings tax-deferred until withdrawals begin"). Thus, given its plain and ordinary meaning, "income" includes IRA...