In re Solecki

• Decision Date: 13 August 2020
• Docket Number: No. 2-19-0381,2-19-0381
• Citation: 166 N.E.3d 184,445 Ill.Dec. 155,2020 IL App (2d) 190381
• Parties: IN RE MARRIAGE OF Kimberly SOLECKI, Petitioner-Appellant, and Thomas J. Solecki Jr., Respondent-Appellee.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190381

166 N.E.3d 184

445 Ill.Dec. 155

IN RE MARRIAGE OF Kimberly SOLECKI, Petitioner-Appellant, and Thomas J. Solecki Jr., Respondent-Appellee.

No. 2-19-0381

Appellate Court of Illinois, Second District.

Opinion filed August 13, 2020

James J. Laraia, of Laraia & Whitty, P.C., of Wheaton, for appellant.

Joseph P. O'Brien, of Opal O'Brien LLC, of Wheaton, for appellee.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 In January 2015, the trial court entered a judgment dissolving the marriage of petitioner, Kimberly Solecki, and respondent, Thomas J. Solecki Jr. Incorporated into the dissolution judgment was a marital settlement agreement (MSA) by which respondent agreed to pay petitioner a percentage of his net income as monthly child support. The MSA further provided that each year the parties would conduct a "true-up," based on respondent's tax documents, to determine if he paid the proper amount of support in the prior year. Subsequently, respondent filed a motion to modify child support. He asked the court to reduce his monthly support obligation and calculate true-up amounts for the years 2015, 2016, and 2017. Following a hearing, the trial court granted the motion in part and denied it in part. Petitioner appeals, raising issues regarding the trial court's application of the MSA's true-up provisions, its finding that a substantial change in circumstances existed, and its directive that each party pay its own costs and attorney fees. We affirm as modified.

¶ 2 I. BACKGROUND

¶ 3 A. The MSA

¶ 4 The parties were married in 2003. The three children born of the marriage were still minors when the trial court entered the dissolution judgment. Filed with the dissolution judgment was a joint parenting order that incorporated the parties' joint parenting agreement (JPA). In the JPA, the parties agreed to joint custody of the children and to a parenting time schedule.

¶ 5 The MSA noted that respondent was "employed as a Chiropractor and Instructor earning approximately $240,000 annually." The MSA contained provisions on child support and maintenance. Article 3 of the MSA addressed child support, stating in relevant part:

"3.1. Husband shall pay to Wife as and for child support a total amount of thirty-two (32%) of his net income as defined by 750 ILCS 5/101 et seq. from all of Husband's sources of income for so long as Husband has an obligation to pay child support, including but not limited to bonuses, incentives, or any other type of compensation and including any net income generated by any of his various businesses/enterprises whether pre-marital, marital or postmarital. Based on the parties' calculations of Husband's current net income as of October 1, 2014, Husband shall pay to Wife thirty-two percent (32%) of his net income which is equivalent to the sum of four thousand seven hundred ($4,700.00) each month as and for his monthly child support obligation.

3.2. Husband's child support payments shall be paid directly by the Husband to Wife in two (2) equal installments of two thousand three hundred and fifty dollars ($2,350.00) which shall be due and payable on the 1st and 15th of every month. ***

3.3. Within thirty (30) days of Husband filing his taxes each year, Husband shall provide to Wife copies of his signed federal and state income tax returns with Form W-2's, Form 1099's and all schedules, including Form K-1's and any and all schedules relating to his businesses/enterprises.

3.4. Annually, when the tax return is furnished, the parties shall conduct a true up, wherein they shall compare the total net income earned by the Husband in the preceding year to the total amount of child support paid in order to determine whether the total support paid accurately reflects thirty-two percent (32%) of Husband's total net income for the year. If the Husband has not paid thirty-two (32%) of the net of all income received by him as defined in this Agreement, then he shall remit to Wife all sums due and owing within thirty (30) days thereof.

3.5. Husband's net income for purposes of the true up shall be determined in the following manner:

a. All income reported by Husband on his individual tax return reduced by federal income tax, state income tax and social security payments owed by Husband on said income; and,

b. All income received by Sport & Spine Rehab Institute, S.C. (‘Sport and Spine’), or any other company which Husband uses to collect income from his work as an independent contractor, including any and all cash payments made to Husband, reduced by thirty percent (30%) and further reduced by the total amount Husband paid in health insurance premiums that year for himself and the children."

¶ 6 As it existed in January 2015, section 505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/505(a)(1) (West 2014)) provided child support guidelines requiring the supporting spouse to pay, as "the minimum amount of support," a certain percentage of the spouse's income, based on the number of children to be supported. A trial court could deviate from the guidelines in the best interest of the child, as measured by various factors including the financial resources and needs of the parents. Id. § 505(a)(2)(b).

¶ 7 The MSA was consistent with section 505(a)(1) of the Act in that respondent was required to pay, for support of three children, 32% of his net income. Id. § 505(a)(1).

¶ 8 In article 6 of the MSA, respondent waived his right to maintenance and agreed to pay petitioner maintenance of $2500 per month for 36 months, commencing October 1, 2014.

¶ 9 The MSA also contained the following severability clause:

"Severability. It is expressly understood and agreed between the Parties that in the event a court of competent jurisdiction at any time after the entry of a Judgment of Dissolution of Marriage holds that a portion of this Agreement is invalid or unenforceable, the remainder hereof shall not be affected thereby and shall continue in full force and effect."

¶ 10 B. Respondent's Motion to Modify

¶ 11 In September 2017, respondent filed a motion to modify both the parenting-time schedule in the JPA and the child support specified in the MSA. In June 2018, the trial court entered an agreed order reducing respondent's parenting time.

¶ 12 In September 2018, respondent filed an "amended motion to modify." In count I, he sought a reduction in child support, based on the following changed circumstances: (1) petitioner was unemployed and earning no income at the time of the January 2015 divorce, but since that time she earned a certificate in massage therapy and became the owner and operator of a massage studio with the potential to earn at least $50,000 per year, and (2) respondent's workload decreased since the divorce; specifically, he no longer taught at universities and was presenting fewer seminars per year.

¶ 13 In count II, respondent requested that the trial court, for true-up calculations for 2018 and beyond, modify the true-up provisions to accord with the current version of section 505. Under that version, the court no longer determines base child support by reference to the supporting spouse's income alone. See 750 ILCS 5/505(a)(1.5) (West 2018). Rather, section 505 uses the "income shares" model, by which back child support is computed by determining the parents' combined monthly net income and then calculating each parties' percentage share of the support obligation. Id.

¶ 14 In count III, respondent asked the trial court to determine true-up amounts under articles 3.4 and 3.5 of the MSA for 2015, 2016, and 2017, as the parties could not agree on what respondent owed for those years. Respondent proposed that the definition of "net income" in section 505(a)(3) of the Act ( 750 ILCS 5/505(a)(3) (West 2014)), rather than article 3.5(b)'s concept of "net income" should apply to respondent's business income from his company, Sport & Spine Rehabilitation Institute (Sport & Spine), and other sources. Thus, respondent asked that the court apply all (pertinent) deductions in section 505(a)(3), rather than just the two deductions specified in article 3.5(b), namely, the flat 30% deduction and the deduction for health insurance premiums. Respondent attached to his motion proposed true-up calculations applying the deductions under section 505(a)(3) to all sources of respondent's income, including his business income.

¶ 15 In her response to the motion, petitioner denied that there were changed circumstances justifying a modification of child support. She further argued that the mere fact that the formula for computing child support changed since the MSA was signed did not warrant a modification of the true-up provisions. Finally, she argued that the trial court should strictly follow article 3.5b's definition of "net income" and not apply additional statutory deductions. Respondent attached her own proposed true-up calculations.

¶ 16 In February and March 2019, the trial court held a hearing on the amended motion to modify. Petitioner testified that she was not employed when the parties divorced in January 2015. She was previously employed with Sport & Spine, an S corporation that respondent formed in November 2010. Since January 2015, petitioner earned a university certificate in massage therapy and received her state license and national certification in that field. In April 2015, she formed her own S corporation, Riverwalk Therapeutic Massage (Riverwalk), through which she provides therapeutic massage. Petitioner is also currently enrolled in a nursing program and expects to graduate in about two years.

¶ 17 Petitioner stated that she arranges her Riverwalk business around her schooling and family responsibilities, which "come first." She generates between one and seven "contact hours" per week (an hour of massage equals one contact hour).

¶ 18 Petitioner's federal individual tax returns for 2015, 2016, and 2017 were introduced into evidence. Petitioner's 2015...