Rushing v. Rushing
| Decision Date | 30 November 2018 |
| Docket Number | NO. 5-17-0146,5-17-0146 |
| Citation | 2018 IL App (5th) 170146,431 Ill.Dec. 236,127 N.E.3d 769 |
| Parties | IN RE MARRIAGE OF Emily R. RUSHING, n/k/a/ Moore, Petitioner-Appellee, and James S. Rushing, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 Respondent, James S. Rushing, appeals from an order of the circuit court of Marion County modifying the amount of child support to be paid to petitioner, Emily R. Rushing n/k/a Emily R. Moore. The trial court took into consideration the income of James' current wife, Jamie Rushing, to establish the amount of child support to be paid to Emily pursuant to section 505(a) of the Illinois Marriage and Dissolution Act (Marriage Act) ( 750 ILCS 5/505(a) (West 2014) ). The court's order also provided that, in order for the child support award to be reduced and to rely solely on James' income, James and Jamie had to be physically separated, in the context of their legal separation. The issues raised in this appeal are: (1) whether the trial court erred in considering Jamie' income in determining the child support obligation owed by James; and, (2) whether the trial court erred in considering the legal separation allegations set forth by James, proffered to the court after the conclusion of the hearing on Emily's petition to modify child support; and, (3) whether the trial court erred in ruling that James and Jamie must be physically separated for the court to consider only James' income for child support purposes. For the reasons that follow, we affirm that portion of the circuit court's award of $467 per month in child support, as well as the award of arrearage and payment thereof. We find, however, that the circuit court abused its discretion in considering the status of James and his wife, Jamie, subsequent to the hearing, and therefore vacate the findings of the trial court related to the legal separation and award of the reduced amount of child support.
¶ 3 The parties married on August 12, 1995. Two children were born to the parties during the marriage. The trial court entered a judgment of dissolution on May 19, 2009, in which it awarded "sole care, custody[,] and education" of the two minor children to Emily, and ordered James to pay Emily $112 per week in child support.
¶ 4 At the time of the parties' divorce, James was self-employed in the heating and cooling business, earning $400 per week. On July 1, 2010, the parties filed a stipulation in which they agreed that James' "effort at self-employment" had failed and that he was currently employed by the City of Centralia, Illinois. The parties stipulated that the court should reduce James' child support obligation to $200 per month. On that same day, the circuit court entered an agreed order reducing James' child support payments to $200 per month.
¶ 5 On August 13, 2010, James' attorney filed an "Order/Notice to Withhold Income for Child Support" that alleged that James' child support obligation was terminated. This notice bears the signature of only James' attorney, and the record does not include a written order or docket entry establishing that the circuit court ordered the termination of James' child support obligation. Emily subsequently admitted that she agreed to the termination of James' child support obligation at that time.
¶ 6 On October 26, 2015, Emily filed the petition to modify child support that is the subject matter of the present appeal. As of that date, the parties had only one minor child, and James had married Jamie Rushing. In her petition to modify, Emily alleged there had been a substantial change in circumstances in that expenses for the minor child had increased, considering the fact that the child was older and involved in extra-curricular activities. Emily also alleged that the cost of living had increased, and it was likely James' income had increased.
¶ 7 On November 20, 2015, James filed a response to Emily's petition to modify in which he asserted that no child support was warranted. James alleged that their minor child wanted to reside with each parent "as close to one-half time as practicable such that neither party should pay the other child support."
¶ 8 On July 11, 2016, just two weeks before the scheduled hearing date, James filed a petition for modification of the trial court's May 11, 2009, visitation order. That order had awarded sole custody of the parties' then minor children to Emily and established the visitation schedule with James. In his petition for modification, James sought to have his parenting time modified to conform to the parenting time schedule the parties had been following, to provide additional parenting time, and to allow him to claim the minor child as a dependent tax exemption in alternating years.
¶ 9 On July 26, 2016, a hearing was held on the respective petitions filed by Emily and James. Prior to the hearing, James filed a financial affidavit which allegedly reflected his income from his business, Rushing Investigations, a limited liability company, which specialized in performing background checks and investigations. The affidavit averred that James took a "Draw-as available," but failed to provide any weekly, monthly, or annual salary. Essentially, James reported no income.
¶ 10 The affidavit filed by James also indicated his total monthly living expenses were $5788.17 per month, including a house payment of $1198.85 per month with taxes and insurance. Attached to the affidavit was a document that was represented to be a copy of James' 2015 Individual Income Tax Return, Form 1040. It showed that Rushing Investigations incurred a net operating loss of over $2700.
¶ 11 James testified at the July 26, 2016, hearing that he had been operating his company, Rushing Investigations, for "about three years," and that he was in the process of developing clients. He presented an exhibit purporting to be a profit and loss statement that showed his business had generated $4345.41 in net income for the period between January 1, 2016, and June 30, 2016.
¶ 12 James stated that the last time he paid child support was in 2012. With regard to his day-to-day household expenses, James testified that he paid "half of what I can." He stated that 2016 had been "a pretty good year" up to that point, but that he did not have enough income to pay all the expenses listed on his financial affidavit. James admitted that he could not pay the household expenses, such as the house mortgage, utilities, and taxes, as identified in his financial affidavit, and that his wife, Jamie, helped with paying those expenses. He acknowledged that he and Jamie had joint checking and savings accounts, but he did not know how much money was in either account. James further testified that sometimes he writes the checks, and sometime his wife does. He stated he had "no idea" what his wife, Jamie, made in a year. James further testified that he owed approximately $8500 on credit cards, and that he paid the debt through his business.
¶ 13 The Individual Income Tax Return, Form 1040 attached to the affidavit showed that James and Jamie filed a joint tax return in 2015, but the return attached to the affidavit included only income tax information for James. Upon questioning, James admitted that the tax return was not the actual tax return that he and Jamie had filed with the Internal Revenue Service (IRS). The income portion of the tax return showed negative numbers in the income section of the return. James testified that he did not know what those numbers represented, as his wife had prepared their tax return, and he was not sure what expenses had been listed for his business. The return showed that his business had a net operating loss in 2015. Overall, the specifics regarding the financial resources available to James were not clearly ascertainable through his testimony.
¶ 14 With respect to child support, James testified that he would like to have his daughter "half the time * * * [t]hat way [he could] pay for anything she needs."
¶ 15 Emily's counsel also called Jamie Rushing as a witness at the hearing held on July 26, 2016. Jamie testified that she purchased the house they were living in prior to their marriage, and that she lived in the house with James and two of her children. Jamie explained that James moved into her house near the end of 2013, prior to their marriage, on January 2, 2014. After they were married, James adopted her son. Emily's counsel sought to elicit testimony from Jamie regarding James' current living situation, and the financial resources available to him. When Emily sought to introduce evidence showing that James benefitted from Jamie's income with respect to payment of the monthly expenses James had claimed in his affidavit, James' attorney objected. James' counsel claimed this testimony regarding Jamie's income was irrelevant to the issue of James' child support obligation. The trial court allowed the testimony regarding Jamie's income, but gave the parties additional time to present case law as to what weight should be given to this testimony and took the objection under advisement.
¶ 16 Thereafter, Jamie testified that she was self-employed as an infertility consultant. Simply put, she helps people who cannot have children find egg donors and surrogate mothers. She testified that her income from her business varied from year to year and that she did not know "off the top of [her] head" how much she usually made in any given year. She concluded that she made less than $100,000 per year. Both parties questioned Jamie about the expenses that James had listed on his financial affidavit. Jamie testified that some of the expenses listed by James were household expenses for James, herself, and her two children, including the $1198.85 monthly expense listed for their house payment, plus taxes and insurance. Jamie also testified that the expenses listed on James' financial affidavit...
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