No. 2-15-0291 Opinion filed March 21, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

BRIAN D. McCLURE, ) Appeal from the Circuit Court ) of Du Page County. Petitioner-Appellant, ) ) v. ) No. 09-F-525 ) ALIX P. HAISHA, ) Honorable ) Linda E. Davenport, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶1 The petitioner, Brian McClure, was successful in gaining custody of his daughter from

her mother, the respondent, Alix Haisha. (The parties never married.) He then moved to

terminate or modify his child support obligation. The trial court granted his motion in part,

decreasing his monthly support obligation, but refused to impose any child support obligation on

Alix. Brian appeals, arguing that it was improper to order him to continue paying such a high

level of child support now that he has legal custody of his daughter. He also argues that Alix

should have been ordered to contribute to their daughter’s support. We affirm the trial court’s

ruling regarding Brian’s child support obligation, but modify the amount of Brian’s child support

obligation to reflect a mandatory statutory offset of $10 per month in child support by Alix.

¶2 I. BACKGROUND

¶3 On July 8, 2007, the parties had a daughter, Jessica. Brian signed a voluntary

acknowledgment of paternity. About two years later, after Alix moved herself and Jessica to

California, Brian filed a petition to establish his paternity. He was found to be Jessica’s father,

and shortly thereafter petitioned for custody of Jessica. Alix and Jessica returned to Illinois.

¶4 In September 2009, the trial court entered an agreed order under which Brian was to pay

Alix $4,750 per month in child support for Jessica. In September 2010, and again in February

2012, the trial court entered agreed orders under which Alix was given sole legal custody of

Jessica. In an agreed order entered on February 22, 2012, Brian agreed to pay Alix $5,000 per

month in child support for Jessica.

¶5 Although the parties dispute the exact figures, they agree that Brian’s income greatly

exceeds Alix’s income. In 2013, Brian’s net income was about $795,000, as shown on his

Illinois W-2 form. In February 2015, the parties filed financial disclosure statements. Brian’s

stated that his gross income in 2014 was about $933,000 and that his current gross monthly

income was about $39,000, while Alix’s statement averred that her gross income in 2014 was

about $9,500 and that her current net income was about $929 per month.

¶6 As relevant to the present appeal, in February 2014, Brian filed a motion to modify

custody. After briefing and a trial on the issue, on July 30, 2014, the trial court issued a letter

opinion containing its findings. Among other things, the trial court found that joint custody was

not possible due to conflicts between the parents; both parents had a good relationship with

Jessica and desired to have her live with them; and Brian was more willing than Alix to facilitate

a close and loving relationship between Jessica and the other parent. For these and other reasons,

the trial court found that Brian should have sole legal custody of Jessica. Regarding child

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support, the trial court noted that Brian had made no request to modify child support. The trial

court stated, “The statute [(750 ILCS 5/505 (West 2014))] is clear that both parties have the

financial obligation to support the child and Brian’s income provides him with an extraordinary

ability to provide [Alix] with the same amount of support so that she will have a home for the

child when the child is with her.”

¶7 That same date, the trial court entered a judgment order incorporating its letter opinion

and transferring sole legal custody of Jessica to Brian. (Later that day, the trial court entered an

amended judgment that made certain minor corrections.) Parenting time was divided as follows:

winter and spring school breaks, Jessica’s birthday, and other holidays were split evenly between

the parties; during the school year, Jessica would spend her time outside of school roughly

equally with both parents; and during the summer, the same schedule would apply, but Jessica

would spend the pick-up and drop-off days primarily in Brian’s care and each parent would have

a 14-day block of uninterrupted time with Jessica for vacations. Regarding child support, the

judgment order stated: “All provisions for the payment of child support shall remain in full force

and effect.” Alix filed an appeal from this order but then voluntarily dismissed the appeal.

¶8 In October 2014, Brian moved to terminate his child support obligation and establish

Alix’s child support obligation. Brian argued that Alix should pay child support of at least $10

per month, which is the statutory minimum under section 14 of the Illinois Parentage Act of

1984 (Parentage Act) (750 ILCS 45/14 (West 2014)). He also requested that his own child

support obligation be terminated or reduced as he was now the “custodial parent” of Jessica, and

Alix no longer had the majority of parenting time. Alix filed a motion to strike Brian’s motion

(this motion to strike was later denied), but did not otherwise file any written response.

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¶9 On February 26, 2015, the trial court held an evidentiary hearing on Brian’s motion.

Alix, Brian, and Brian’s business accountant, Howard Gamer, testified. Gamer stated that

Brian’s gross income for 2014 was about $39,000 per month. (Brian’s financial statement

reflected tax and FICA deductions of about $18,000, resulting in a net monthly income of a little

less than $21,000.) Gamer estimated that Brian’s 2014 W-2 form would likely show about

$600,000 in gross income. He also testified that Brian’s business’s income had decreased in the

last few years because one of its major clients filed bankruptcy in 2012. Brian likewise testified

that his income had decreased. However, he had three cars, including an Audi A8, a Jaguar, and

a Cadillac Escalade, and he bought a new Harley Davidson in 2014, paying $27,000 in cash.

Brian also took multiple expensive vacations and deposited over $52,000 into his 401(k)

account. As noted above, Alix’s financial statement (filed on the date of the hearing) stated that

her current monthly income was about $929. She also testified that, although various adults

including Brian’s son from another relationship lived with her for various periods of time, none

of them contributed financially to the household by paying utility bills or rent.

¶ 10 In ruling on Brian’s motion, the trial court first addressed Brian’s request to terminate or

modify the prior child support order. Noting that a prior child support order was in place, it

stated that Brian bore the burden of proof to justify any change in that order. It found that Brian

had shown a substantial change in circumstances since the prior order, based upon the change in

legal custody. It then found that termination of Brian’s child support obligation was not

appropriate, as section 505 of the Illinois Marriage and Dissolution of Marriage Act (Marriage

Act) (750 ILCS 5/505 (West 2014)) specifically provides that both parents have an obligation to

support their children, and termination of all support would greatly diminish Alix’s ability to

provide a stable home for Jessica during Alix’s parenting time. Regarding the appropriate

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amount of support that Brian should pay, the court found that, although some of Brian’s

testimony was not credible regarding his need to borrow money during the previous year in order

to pay his income taxes, nevertheless the evidence supported Brian’s contention that his income

had decreased. The trial court therefore decreased Brian’s child support obligation by $1,000 per

month, to $4,000 per month. Finally, as to Brian’s argument that the Parentage Act required

Alix, as the noncustodial parent, to pay at least some amount of child support, the trial court

stated that the issue was “not before the Court” because Brian had not filed a petition requesting

such relief. The written order entered on February 26, 2015, stated only that, for the reasons

stated on the record, the trial court granted Brian’s motion to modify and reduced child support

to $4,000 per month, retroactive to January 1, 2015. Brian filed a timely notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 Brian raises a number of arguments in this appeal, in a rather scattershot manner. We

address these arguments not in the order in which they are raised, but as they are relevant to our

analysis. We begin with a discussion of the statutes involved.

¶ 13 The Parentage Act (750 ILCS 45/1 et seq. (West 2014)) governs the rights and duties of

parents who have never married each other. The Parentage Act declares that “Illinois recognizes

the right of every child to the physical, mental, emotional and monetary support of his or her

parents” (750 ILCS 45/1.1 (West 2014)), and that “[t]he parent and child relationship, including

support obligations, extends equally to every child and to every parent, regardless of the marital

status of the parents” (750 ILCS 45/3 (West 2014)). Section 14 of the Parentage Act permits a

trial court to enter judgments that determine which parent shall have custody of a child, establish

visitation or parenting time schedules, and determine child support obligations. 750 ILCS

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45/14(a)(1) (West 2014). With reference to child support determinations in parentage cases,

section 14(a)(1) provides, in pertinent part:

“Specifically, in determining the amount of any child support award or child health

insurance coverage, the court shall use the guidelines and standards set forth in

subsection (a) of Section 505 *** of the *** Marriage Act [(750 ILCS 5/505 (West

2014))]. For purposes of Section 505 of the *** Marriage Act, ‘net income’ of the non-

custodial parent shall include any benefits available to that person under the Illinois

Public Aid Code or from other federal, State or local government-funded programs. The

court shall, in any event and regardless of the amount of the non-custodial parent’s net

income, in its judgment order the non-custodial parent to pay child support to the

custodial parent in a minimum amount of not less than $10 per month ***.” (Emphasis

added.)

Thus, section 14 of the Parentage Act directs that child support for the children of unmarried

parents must be calculated in the same manner as support for the children of married parents,

applying the guidelines and presumptions of section 505 of the Marriage Act. However, section

14 of the Parentage Act also explicitly requires a minimum payment by the noncustodial parent

to the custodial parent of not less than $10 per month.

¶ 14 Section 505 of the Marriage Act, in turn, states that “[t]he duty of support owed to a child

includes the obligation to provide for the reasonable and necessary educational, physical, mental

and emotional health needs of the child.” 750 ILCS 5/505(a) (West 2014). To accomplish the

goal of enforcing this obligation, “the court may order either or both parents owing a duty of

support to a child of the marriage to pay an amount reasonable and necessary for the support of

the child, without regard to marital misconduct.”

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¶ 15 Section 505(a) sets out guidelines establishing presumptive levels of support, requiring

the payment of a certain percentage of the “supporting party’s” income that varies depending on

the number of children requiring support. When there is only one child, as in this case, section

505 guidelines require the payment of 20% of the supporting party’s net income. 750 ILCS

5/505(a)(1) (West 2014). A trial court may, after considering certain factors, order child support

in an amount different than the amount required under the guidelines, but it must set out the

reasons for its deviation from the guidelines. 750 ILCS 5/505(a)(2) (West 2014). The factors to

be considered in setting child support include both parents’ “financial resources and needs,” and

the “physical, mental, *** emotional,” and educational needs of the child.

¶ 16 In In re Marriage of Turk,

, our supreme court considered the question of

whether section 505 of the Marriage Act permitted a trial court to order a father with legal

custody of the children to pay child support to the noncustodial mother. The father argued that,

under section 505, child support obligations could be imposed only on noncustodial parents.

Id. ¶ 16. The supreme court rejected this argument, noting that “section 505 expressly confers on

courts the option to ‘order either or both parents owing a duty of support to a child of the

marriage to pay an amount reasonable and necessary for the support of the child.’ ” (Emphasis

in original.) Id. (quoting 750 ILCS 5/505(a) (West 2012)). None of the statutory factors to be

applied in determining whether a deviation from the guidelines should be ordered suggested that

custody of the child was a dispositive consideration. “Rather, the statute makes clear that a range

of considerations may affect the court’s assessment, including the means, needs and capacity to

produce income of both parents, custodial and noncustodial alike, with the ultimate objective of

serving the best interest of the child.” Id. ¶ 18. Noting the disparate incomes of the parties (the

custodial father had income of about $150,000 per year while the noncustodial mother’s income

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was less than $10,000 per year) and the fact that, under the visitation schedule, the children

would be in the mother’s care “for periods that rival those of the custodial parent and at

commensurate cost” (id. ¶ 24), the supreme court held that, “under section 505, a trial court may

order the custodial parent to pay child support to the noncustodial parent where circumstances

and the best interest of the child warrant it” (id. ¶ 31).

¶ 17 In the present appeal, Brian offers little argument regarding why Turk should not be

dispositive on the issue of whether the trial court could order him to pay child support to Alix.

He argues that Turk is distinguishable on its facts because there, the noncustodial mother earned

only $10,000 per year, lived alone, and had substantially equal parenting time with the child.

However, here the income disparity is even greater than in Turk: Alix earned less than $10,000 in

2014 and was likely to earn only slightly more in 2015 (and there was no evidence that any of

the adults who have stayed with her from time to time contributed to the household income),

while Brian earns substantially more than the custodial father in Turk. And, as in Turk, both

parties have similar amounts of parenting time with the child. (Brian’s argument that Alix has

only 34% of the total parenting time incorrectly fails to account for the time Jessica spends at

school on the transfer days; when that time is added in, the parties have similar amounts of

parenting time.)

¶ 18 Moreover, Turk involves the same legal and policy principles. Although Turk involved

divorced parents rather than never-married parents, the Parentage Act expressly states that child

support obligations under that statute “extend[] equally to every child and to every parent,

regardless of the marital status of the parents.” 750 ILCS 45/3 (West 2014). Further, section 14

of the Parentage Act commands that child support in parentage cases must be determined with

reference to section 505 of the Marriage Act, and thus both Turk and this appeal involve the

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application of section 505 of the Marriage Act. Accordingly, we find Turk to be directly on

point. By contrast, the cases cited by Brian—Department of Public Aid ex rel. Nale v. Nale,

(1998), and In re Marriage of Blaisdell,

(1986)—involve

different facts and legal questions. Moreover, as those cases are older and were issued by the

appellate court rather than the supreme court, we are bound to follow the rule laid down more

recently in Turk. We thus find that the trial court was authorized to order Brian to pay child

support, despite his status as the custodial parent.

¶ 19 Brian argues that the trial court “exceeded its judicial authority” by awarding child

support to Alix when she had not filed any petition seeking child support. Similarly, he argues

that the trial court erred in placing the burden on him to show grounds for modifying child

support rather than requiring Alix to show why she should receive child support. Both of these

arguments misstate the procedural posture of the case, however. When Brian gained custody in

July 2014, a court order requiring him to pay child support was already in place. Although a

change in legal custody is usually a “substantial change in circumstances” for the purposes of

modifying a prior child support order, nothing in the statutory scheme required the trial court to

automatically terminate or modify its prior order. Thus, Alix was not required to file any new

petition for child support. After Brian filed his motion to terminate or modify his own child

support obligation, he bore the burden of showing that the prior order should be modified or

terminated. In re Marriage of Sassano,

(2003).

¶ 20 Brian also contends that the child support award was excessive and provides Alix with a

windfall. A trial court enjoys broad discretion in determining the modification of child support,

and we will not overturn its decision unless there is an abuse of discretion. In re Marriage of

Hill,

, ¶ 17. An abuse of discretion occurs when the trial court’s ruling

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is arbitrary, fanciful, or unreasonable, or when its ruling rests on an error of law. People v.

Olsen,

. Here, the record reflects that the trial court made

credibility findings and carefully considered the evidence presented regarding both parents’

resources and needs as well as the child’s needs—the very factors it was required to consider

under section 505(a) of the Marriage Act. Further, given that Brian’s net monthly income was a

little less than $21,000, the $4,000 monthly child support order appears to be roughly in line with

the 20% statutory guideline for one child. For all of these reasons, we do not find that the trial

court abused its discretion in setting the amount of Brian’s child support obligation.

¶ 21 We next consider Brian’s challenge to the trial court’s refusal to consider whether Alix

should be ordered to pay him some amount of child support. The trial court stated that it would

not order such relief because Brian had not requested it. At least in terms of the written record,

this statement is incorrect. Brian’s motion specifically requested that Alix be ordered to pay him

child support: that request appears in the title (“Father’s Petition to Terminate His Child Support

Obligation and To Set Mother’s Child Support Obligation”); the body of the motion (conceding

that Alix “perhaps should not pay guideline child support because of Father’s substantially-

higher gross income—she should pay the statutory minimum of $10 per month, however”); and

the concluding prayer for relief (asking the trial court to set Alix’s child support obligation at no

less than $10 per month). Thus, the written record reflects that Brian did request such relief.

¶ 22 However, the record of the oral argument on Brian’s motion contains ample basis for the

trial court’s error: the confusion created by the statements of Brian’s attorney during closing

arguments. There, the following colloquy occurred:

“MR. RUGGIERO [Brian’s attorney]: To perfectly clarify, the Paternity [sic] Act

says the noncustodian shall pay even if she is on public aid and no less than $10.00 a

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month. The Paternity Act only incorporates by reference very limited portions of 505A,

the guidelines.

THE COURT: Just so that I’m clear, your petition is to reduce and you also have

a petition that she pay.

MR. RUGGIERO: No. No.

THE COURT: So you didn’t file a petition asking her to pay you child support,

did you?

MR. RUGGIERO: Actually even our motion to reduce even says we’re not

looking for child support from mom.

THE COURT: Okay. So the arguments that even if she was on public aid she

would have to pay. How is that relevant since you are not seeking that she pay you a

dime?

MR. RUGGIERO: Well, she could pay the ten dollar minimum --

THE COURT: Yeah, but you just said you are not asking for it nor did he ever file

a petition asking that she be ordered to pay you child support.

MR. RUGGIERO: That’s not a waiver of what the Paternity Act states. We are

not seeking anything more than -- we’re not really seeking child support from the mother.

THE COURT: Okay. I absolutely agree you haven’t filed anything asking for

that. So your argument about whether -- Mr. Ruggiero, I know you understand me. Did

you file -- I don’t have any pleading that says you ever filed anything asking that she be

ordered to pay you child support.

MR. RUGGIERO: Oh, that’s true.

THE COURT: That’s all I said.

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MR. RUGGIERO: Okay. I just didn’t understand you.

THE COURT: No. I just want to make sure. Because when you argue that the

statute says that even if she was on public aid she would have to pay but you never asked

me to make any findings about that. You never pled anything like that asking her to be

ordered to pay child support.

MR. RUGGIERO: My client is not seeking child support from the mother in this

situation.

THE COURT: Okay.

MR. RUGGIERO: Not looking for child support from her. The Act [--] for the

purposes of the Act it says [--] the Act says she shall pay no less than ten. That doesn’t

mean that we’re waiving the protection under the Act that my client as custodian is now

on the paying end of child support.

THE COURT: I don’t understand what you just said.

MR. RUGGIERO: Okay. [Attorney then makes lengthy argument that Brian is

contributing financially in other ways besides child support and that Alix has the

resources and ability to contribute to the support of Jessica by paying “all of the costs she

incurs while the child is *** in her care and custody.”]

*** So for those reasons, your Honor, because my client is willing to pay these

other costs of the child and he is not seeking I should say anything more than the ten

dollar a month minimum, it’s a [de minimis] amount that the Paternity Act requires in my

position. That [sic] his child support should be if you are not going to eliminate it as a

matter of law to be reduced to an amount that the Court determines. ***”

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Given these contradictory statements by Brian’s attorney, we do not in the least blame the trial

court for concluding that Brian was waiving or abandoning his request that Alix be required to

pay some child support. Nevertheless, the “last word” by Brian’s attorney on the subject was

that Brian did wish Alix to contribute the statutory minimum in child support, although he did

not seek any contribution greater than that: “he is not seeking *** anything more than the ten

dollar a month minimum.” This request essentially echoed Brian’s prayer for relief in his written

motion. In light of the plain language of section 14 of the Parentage Act requiring the

noncustodial parent to make such a contribution, we therefore hold that the trial court should

have granted Brian the only relief he did not waive and should have imposed the statutory

minimum support obligation on Alix.

¶ 23 Alix argues that section 14 of the Parentage Act governs only the initial child support

order, while modification of child support orders is governed by section 16 of that statute, which

provides that “[a]ny support judgment is subject to modification or termination only in

accordance with Section 510” of the Marriage Act. 750 ILCS 45/16 (West 2014). Alix argues

that the $10 minimum contained in section 14 thus does not apply. However, there was no prior

judgment requiring Alix to pay child support. Thus, as to her, the trial court must make an initial

determination regarding the child support she should pay, and that determination is governed by

section 14 of the Parentage Act. Alix also argues that Anderson v. Heckman,

(2003), holds that child support in parentage cases may be modified only in conformity with

sections 505 and 510 of the Marriage Act. However, the statutory minimum payment of $10 per

month was not at issue in Anderson, which involved a prior support order imposed against a

noncustodial spouse. Thus, Anderson is inapposite.

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¶ 24 Under Illinois Supreme Court Rule 366(a)(5), we may “enter any judgment and make any

order that ought to have been *** made.” Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994). As

imposition of the $10 minimum child support obligation upon Alix was the only relief

unequivocally sought by Brian before the trial court, and section 14 of the Parentage Act requires

the imposition of that obligation upon Alix as the noncustodial parent, we modify the trial court’s

ruling as to Brian’s child support obligation to $3,990 per month, reflecting a $10 per month

setoff for Alix’s own child support obligation.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the order of the circuit court of Du Page County dated

February 26, 2015, granting Brian’s motion to modify child support, but modify that order to set

Brian’s net monthly child support obligation at $3,990.

¶ 27 Affirmed as modified.

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