Janssen by Janssen v. Turner, 4-96-0922

• Citation: 685 N.E.2d 16,292 Ill.App.3d 219,226 Ill.Dec. 202
• Decision Date: 09 September 1997
• Docket Number: No. 4-96-0922,4-96-0922
• Parties: , 226 Ill.Dec. 202 In re the Parentage of Jennifer Marie JANSSEN, a Minor, by her Guardian and Next Friend, Mary K. JANSSEN, Petitioner-Appellee, v. Garry TURNER, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 16

685 N.E.2d 16

292 Ill.App.3d 219, 226 Ill.Dec. 202

In re the Parentage of Jennifer Marie JANSSEN, a Minor, by

her Guardian and Next Friend, Mary K. JANSSEN, Petitioner-Appellee, v. Garry TURNER, Respondent-Appellant.

No. 4-96-0922

Appellate Court of Illinois,

Fourth District.

Sept. 9, 1997.

Rehearing Denied Oct. 21, 1997.

Paul E. Adami, Mohan, Alewelt, Prillaman & Adami, Springfield, for Garry Turner.

Ronda D. Taylor Glenn, Bloomington, for Mary K. Janssen.

Justice McCULLOUGH delivered the opinion of the court:

In this paternity action, respondent father Garry Turner (respondent) appeals from the judgment of the circuit court of McLean County. The action was commenced by Mary K. Janssen, the mother of Jennifer Marie Janssen (born May 2, 1991) on October 4, 1993. This court entertained an earlier appeal relating to visitation. In re the Parentage of Janssen, No. 4-95-0938 (September 17, 1996) (unpublished order under Supreme Court Rule 23). The issues in this appeal are whether the trial court erred by (1) awarding retroactive child support to the date of birth; (2) setting the amount of current child support; (3) ordering respondent to pay all of petitioner's attorney fees; (4) directing respondent to provide life insurance on his life for the benefit of Jennifer; (5) directing respondent to pay for dependent medical insurance obtained by petitioner; and (6) directing respondent to pay for petitioner's pregnancy and delivery expenses. No issue is raised concerning the child's parentage. We affirm.

With regard to the issue of retroactive child support, respondent makes two arguments: (1) the relevant statute requires child support to be made retroactive only to the date of service of summons, not to the date of the child's birth; and (2) the awarding of retroactive child support to the date of birth in this case was an abuse of discretion or was against the manifest weight of the evidence. The trial court's order of October 10, 1996, directed respondent to pay child support at the rate of $1,500 per month, with support being retroactive to May 2, 1991. A judgment for retroactive child support was entered in the amount of $62,645, representing retroactive child support at $1,500 per month less a credit for $36,910 for child support payments made by respondent through October 1996. Respondent has waived any argument relating to any discrepancy in these calculations by failing to raise that issue on appeal.

Section 14(b) of the Illinois Parentage Act of 1984 (Parentage Act) provides as follows:

"The court shall order all child support payments, determined in accordance with such guidelines, to commence with the date summons is served. The level of current periodic support payments shall not be reduced because of payments set for the period prior to the date of entry of the support order. The Court may order any child support payments to be made for a period prior to the commencement of the action. In determining whether and the extent to which the payments shall be made for any prior period, the court shall consider all relevant facts, including the factors for determining the amount of support specified in the Illinois Marriage and Dissolution of Marriage Act [(Marriage Act) (750 ILCS 5/101 et seq. (West 1994))] and other equitable factors including but not limited to:

(1) The father's prior knowledge of the fact and circumstances of the child's birth.

(2) The father's prior willingness or refusal to help raise or support the child.

(3) The extent to which the mother or the public agency bringing the action previously informed the father of the child's needs or attempted to seek or require his help in raising or supporting the child.

(4) The reasons the mother or the public agency did not file the action earlier.

(5) The extent to which the father would be prejudiced by the delay in bringing the action.

For purposes of determining the amount of child support to be paid for any period before the date the order for current child support is entered, there is a rebuttable presumption that the father's net income for the prior period was the same as his net income at the time the order for current child support is entered." 750 ILCS 45/14(b) (West 1994).

Respondent's argument is, in essence, a request for this court to construe the statute.

"The cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the legislature. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill.2d 533, 540-41, 178 Ill.Dec. 745, 748, 605 N.E.2d 539, 542 (1992). The language of the statute is the best indicator of that intent, and aids for construing a statute will only be resorted to if the language of the statute is not clear. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill.2d 76, 81 196 Ill.Dec. 655, 657, 630 N.E.2d 820, 822 (1994)." Randall v. Wal-Mart Stores, Inc., 284 Ill.App.3d 970, 972, 220 Ill.Dec. 540, 542-43, 673 N.E.2d 452, 454-55 (1996).

Respondent does not contend the statute is ambiguous. Instead, he seems to argue that the first sentence of section 14(b) of the Parentage Act controls the remainder of the quoted portion of the statute. To hold as respondent suggests would ignore virtually the entire subsection and lead to an absurd result.

The language of section 14(b) indicates the legislature contemplated two categories of retroactive child support, both based on the guidelines referred to in section 14(a) of the Parentage Act (750 ILCS 45/14(a) (West 1994) (referring to sections 505 and 505.2 of the Marriage Act) (750 ILCS 5/505, 505.2 (West Supp.1995) (text of section 505 eff. July 1, 1996))). The first sentence of section 14(b) of the Parentage Act states that child support "shall * * * commence with the date summons is served." 750 ILCS 45/14(b) (West 1994). This is the type of child support "arrearage" briefly discussed by this court in People ex rel. Stockwill v. Keller, 251 Ill.App.3d 796, 800-01, 191 Ill.Dec. 226, 229-30, 623 N.E.2d 816, 819-20 (1993). Under this provision, the trial court must make the child support retroactive at least to the date of service of summons. However, section 14(b) of the Parentage Act also allows for retroactive child support for a period prior to the commencement of the paternity action. Such an award rests within the discretion of the trial court, and child support, retroactive to the birth of the child, "may" be awarded. See Carnes v. Dressen, 215 Ill.App.3d 166, 171-72, 158 Ill.Dec. 732, 735, 574 N.E.2d 845, 848 (1991). Therefore, in this case, the award of child support retroactive to the child's birth was not violative of section 14(b) of the Parentage Act.

In light of the presumption in section 14(b) that respondent's income for the prior period was the same as his current income and the trial court's finding that child support should be set at $1,500 per month currently and retroactively, the issue of whether the trial court erred in setting retroactive child support is interrelated with the determination of the propriety of the current support award. The standard of review for a current or retroactive child support award in paternity cases is whether the award is an abuse of discretion or the factual predicate for the decision is against the manifest weight of the evidence. Gay v. Dunlap, 279 Ill.App.3d 140, 144-45, 215 Ill.Dec. 691, 695, 664 N.E.2d 88, 92 (1996); Milligan v. Cange, 200 Ill.App.3d 284, 294, 146 Ill.Dec. 667, 674, 558 N.E.2d 630, 637 (1990).

In setting child support at $1,500 per month, the trial court found (1) respondent's net annual income for 1993, 1994, and 1995 was in excess of $205,000, resulting in a net monthly income of $17,000; (2) applying the 20% guideline would result in child support being set at $3,400 per month; (3) a deviation downward was warranted in this case for this child with no special needs; and (4) the trial court noted the language in In re Marriage of Bush, 191 Ill.App.3d 249, 260, 138 Ill.Dec. 423, 429, 547 N.E.2d 590, 596 (1989), in which respondent was one of the parties, but distinguished the case from the case at bar because petitioner's gross monthly income of $1,100 did not afford the advantages Jennifer should enjoy and was not sufficient to provide for the child's reasonable needs.

As already noted, section 14(a) of the Parentage Act specifies that child support be determined in accordance with sections 505 and 505.2 of the Marriage Act. Under section 505 of the Marriage Act, the minimum child support for one child is to be 20% of the supporting parent's net income. 750 ILCS 5/505(a)(1) (West Supp.1995). However, deviation from the guideline is permitted after consideration of the financial resources of the child, custodial parent, and noncustodial parent; the standard of living the child would have enjoyed if the parties had married; and the child's physical and emotional condition and educational needs. 750 ILCS 5/505(a)(2) (West Supp.1995).

Respondent, an anesthesiologist, alludes to his financial affidavit, which reflected gross monthly income of $15,000 and net monthly income of $8,216 from employment, interest, and dividends. The trial court expressly found respondent's affidavit to be untrustworthy. "The credibility and forthrightness of the noncustodial parent in disclosing income is a factor to be considered in accepting evidence of net income." In re Marriage of Olson, 223 Ill.App.3d 636, 652, 166 Ill.Dec. 60, 71, 585 N.E.2d 1082, 1093 (1992). Even accepting for the sake of argument the $8,216 figure, 20% would provide Jennifer with $1,643.20 child support per month. However, respondent's argument does not focus on the trial court's findings relating to his income.

Respondent points to the fact that he is currently paying $800 per month in child support for another child as a result of the dissolution of his marriage. The trial court's order and written opinion referred to the prior child...