Shores v. Shores

• Decision Date: 16 May 2014
• Docket Number: No. 2–13–0151.,2–13–0151.
• Citation: 2014 IL App (2d) 130151,11 N.E.3d 35,381 Ill.Dec. 672
• Parties: In re MARRIAGE OF Clyde W. SHORES, Petitioner–Appellant, and Jane Shores, Respondent–Appellee.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130151

11 N.E.3d 35

381 Ill.Dec. 672

In re MARRIAGE OF Clyde W. SHORES, Petitioner–Appellant, and Jane Shores, Respondent–Appellee.

No. 2–13–0151.

Appellate Court of Illinois, Second District.

May 16, 2014.

Thomas G. Kenny, of Kenny & Kenny, of Wheaton, for appellant.

Richard C. Slocum and Thomas E. St. Jules, both of Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora, for appellee.

OPINION

Justice SPENCE delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Clyde W. Shores, appeals the trial court's award of an increase in child support, arguing that the trial court erred by including three items as income under section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(3) (West 2010)) in its child support calculation for January 1, 2010, through July 12, 2010. The three items were a bonus that petitioner received in 2011 for his performance in 2010 and two relocation reimbursements he received in the amounts of $20,355.21 and $14,487.62. In order to answer when an item counts as section 505(a)(3) income, we analogize child support income to the treatment of marital assets. We find that for purposes of child support, when future income is speculative, it is income not when earned but rather when received. Accordingly, we affirm in part, reverse in part, and remand.

¶ 2 I. BACKGROUND

¶ 3 This is an appeal from an order modifying child support, following a postjudgment, domestic relations proceeding. The proceeding followed the dissolution-of-marriage judgment originally entered on July 19, 1999, between petitioner and respondent, Jane Shores, in California and enrolled in the Kane County circuit court on May 17, 2007.

¶ 4 The parties were married on August 9, 1986, and they had two children during their marriage, Katherine born March 8, 1989, and Emily born July 13, 1992. After their marriage dissolution, the parties shared joint custody of the children, with respondent having primary residential custody. The judgment provided that petitioner would pay respondent child support of $2,900 per month (allocated as $1,088 for Katherine and $1,812 for Emily) until each child married, died, was emancipated, reached 18 years of age and was not a full-time high school student residing with respondent, or reached 19 years of age, or upon further order of the court, whichever occurred first.

¶ 5 On October 18, 2007, respondent filed a petition to increase child support and a petition for contribution to college expenses for Katherine. Thereafter, on October 24, 2009, petitioner filed a petition for contribution to college expenses for Emily. On August 31, 2009, petitioner filed a petition for modification of child support, alleging that he lost his job and was unable to pay child support.

¶ 6 The two petitions for contribution to college expenses were resolved on July 8, 2010, by an agreed order. The agreed order provided that each party would pay for half of each child's college expenses.

¶ 7 Regarding the petition to modify child support, the trial court held a nonevidentiary hearing on February 14, 2011. After considering the parties' briefs and holding oral argument, the trial court entered an order that provided, in relevant part, that all relocation reimbursement payments received by petitioner would be included in calculating child support. Furthermore, the order required that petitioner pay child support on all bonuses, incentive stock receipts, stock options, or any other type of compensation paid in 2011 for work performed in 2010 prior to July 13, 2010.

¶ 8 On March 3, 2011, the trial court entered an order setting the amount of child support petitioner owed from 2007, 2008, and 2009 (total: $30,721.65). The March 3 order also continued to April 26, 2011, the matter of 2010 support due, although the matter was not heard until September 4, 2013. In the interim, petitioner filed a motion on July 17, 2011, for termination of his obligation to Katherine, which the trial court granted on July 28, 2011, except for claims for contribution to expenses incurred prior to the child's emancipation.

¶ 9 On July 28, 2011, petitioner filed a motion to reconsider the February 2011 order. Petitioner argued that income he received after Emily's emancipation was not subject to child support, and he urged the court to reconsider that portion of its February 2011 order. The court eventually denied the motion for reconsideration on January 31, 2013.

¶ 10 At a September 12, 2011, hearing, the following documents were admitted: petitioner's 2010 jointly filed tax return for himself and his current wife; his letter of employment with Baxter Healthcare Corporation (Baxter) as vice president of global marketing, dated October 16, 2009, and confirming his eligibility to participate in the company's “Management Incentive Compensation Program” (MICP); his 2010 form W–2; his wife's form W–2; his wage/paycheck statement from Baxter, dated July 9, 2010; his March 18, 2011, wage statement from Baxter that included a $100,931.04 MICP bonus; a copy of the Baxter MICP policy; and copies of his 2009–10 and 2010–11 annual compensation review summaries from Baxter. Also, attached as an exhibit to respondent's request to admit was a summary of relocation expenses reimbursed to petitioner from November 19, 2009, through September 14, 2010, which provided a breakdown of $14,487.62 paid to petitioner after Emily's emancipation.

¶ 11 Petitioner testified to the following at the September 12, 2011, hearing, which was continued to June 11, 2012. He began working for Baxter on October 26, 2009, and he participated in the MICP offered by Baxter. He received a pro rata share of the MICP bonus in 2010 for his partial year of employment in 2009, and he was a full-year participant in 2010. When asked if he received an MICP bonus in 2011 for his work in 2010, he answered, “I received a[n] MICP bonus” in March 2011. His compensation in 2010 was $350,406.54, according to his 2010 W–2, and his wife's was $247,339 for the same year. He testified as to his Baxter pay stub for July 9, 2010—the last paycheck he received prior to Emily's emancipation—verifying that he received $10,984.62 for that pay period. He testified that he received a raise in March, although he was unable to confirm the exact amount.

¶ 12 Petitioner testified to his MICP bonuses received in 2010 and 2011, in amounts of $21,093.33 in 2010 for the 2009 performance year (a pro rata share of what he would have earned had he been employed for all of 2009), and $100,931.04 in March 2011 for the 2010 performance year. He further testified that, under Baxter's MICP, employees who are terminated prior to February 1 of a given year, for any reason other than those specifically permitted, were not eligible to receive an MICP bonus for performance during the previous or current year. Petitioner testified that, for example, he would have to have been employed as of February 1, 2011, to be eligible to receive his bonus for work in 2010.

¶ 13 Petitioner further testified that he received a relocation reimbursement in the amount of $14,487.62 after Emily's emancipation. Petitioner further acknowledged a $20,355.21 reimbursement on his July 9, 2010, pay stub. He had resided in St. Charles, Illinois, prior to accepting employment with Baxter, which had its offices 60 miles away from his St. Charles home, in October 2009. In November 2009, petitioner purchased a second home in Lake Forest, only eight or nine miles from the Baxter offices, because he felt that a daily commute of 120 to 130 miles was not sustainable. He testified that the reimbursements were for duplicate housing expenses that he incurred as a result of maintaining his home in Lake Forest. The reimbursements were for the actual expenses of his Lake Forest home (mortgage, interest, taxes, etc.), and he continued to make similar payments on his St. Charles home. He testified that he repaid both the $14,487.62 and the $20,355.21 reimbursements to Baxter in May 2011 after he voluntarily terminated his employment with Baxter, pursuant to his employment agreement. He ended his employment with Baxter to take a different position in California with an annual salary around $330,000. He chose to own two homes simultaneously while working for Baxter because of the promise of reimbursement for duplicate housing costs.

¶ 14 Counsel for petitioner and respondent made closing arguments on July 2, 2012. The trial court confirmed that the sole issue before it was the amount of child support due for January 1, 2010, to July 13, 2010, which was the date Emily was emancipated ( i.e., turned 18 and had graduated from high school). Respondent argued that the relocation reimbursement received by petitioner prior to July 13 in 2010—the payment of $20,355.21—was income for purposes of child support. Furthermore, respondent argued that the $14,487.62 relocation reimbursement, which petitioner received after Emily's emancipation but for expenses incurred prior to emancipation, should likewise be included in the child support calculation. With regard to the MICP bonus, respondent argued that the $100,931.04 bonus that petitioner received in March 2011 was for his work performance in 2010 and that therefore a prorated portion of that bonus should be included in calculating the 2010 child support. Respondent argued that 52.88% of that bonus should be subject to child support (basing the percentage on the proportion of time in 2010 before Emily was emancipated). The total balance respondent claimed for 2010 child support, based on the MICP bonus, reimbursements, and other income, was $21,329.61.

¶ 15 Petitioner argued that the MICP bonus received after Emily's emancipation was not subject to child support, because his continued employment after the child's emancipation was necessary to receive the bonus. Furthermore, petitioner argued that he repaid all of the reimbursements after he...