NOTICE

Decision filed 04/05/16. The text of this decision may be NO. 5-15-0246 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of SHELLEY S. FORTNER, n/k/a ) Randolph County. Shelley S. Scanlan, ) ) Petitioner-Appellee, ) ) No. 06-D-62 and ) ) ROBBIE W. FORTNER, ) Honorable ) Eugene E. Gross, Respondent-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.

OPINION

¶1 The respondent, Robbie W. Fortner (Rob), appeals an order modifying child

support. The trial court found that the proceeds of a wrongful death settlement Rob

received did not constitute income for purposes of child support. However, the court

found that the settlement increased Rob's financial resources. As such, the court found

that it constituted a material change in circumstances justifying a one-time upward

deviation from the guideline amount of child support. The court therefore ordered Rob to

make a one-time payment of $15,000 as child support to the petitioner, Shelley S. 1 Fortner, n/k/a Shelley S. Scanlan. On appeal, Rob argues that (1) the court erred in

ordering child support on the basis of the wrongful death settlement proceeds despite the

court's finding that the proceeds did not constitute income; and (2) the court erred by

ordering him to pay an amount that exceeded the needs of the child. In response, Shelley

contends that the court erred in finding that the settlement proceeds did not constitute

income. We affirm.

¶2 The parties were married in June 2002. Their daughter, Kylie, was born in

October 2003. The parties separated in November 2004. In May 2006, Shelley filed a

petition for dissolution. Two days later, the court entered an order dissolving the parties'

marriage and incorporating the terms of their marital settlement agreement. Pursuant to

that agreement, Kylie was to reside with Shelley, and Rob was ordered to pay $295.79

per month for child support. Subsequently, child support was modified twice due to

changes in Rob's income. Prior to the petition to modify support that forms the basis of

this appeal, Rob was ordered to pay $313.11 per month as child support, and both parties

were directed to pay one-half of Kylie's private school tuition.

¶3 On June 18, 2014, Shelley filed a petition to modify child support, alleging that

Rob's income had increased. The court held a hearing in the matter in January 2015. At

the beginning of the hearing, counsel for Shelley clarified that Shelley was seeking a

modification of child support related solely to the proceeds of the wrongful death

settlement. He explained that although Rob's regular income had increased, the increase

was slight.

2 ¶4 Rob testified about his father's death and the wrongful death settlement. He

testified that his father, Gary Fortner, went to the emergency room, where he was

diagnosed with heartburn and sent home. At home, Gary experienced what he believed

to be symptoms of a heart attack. Rob testified that Gary did not want to go back to the

emergency room "because he felt like they didn't do what they should." Instead, he went

to his doctor's office. There, he suffered a fatal heart attack. Paramedics from Medstar,

an ambulance company, attempted to revive him, but were not successful.

¶5 Rob opened an estate for purposes of bringing a wrongful death action. He was

Gary Fortner's only heir. At the time of his death, Gary Fortner owned an RV and

various items of personal property; however, the only substantial asset of the estate was

the wrongful death claim. Ultimately, the case was settled for $250,000. After

deductions for attorney fees and litigation costs, Rob received $169,725.48.

¶6 A settlement statement was admitted into evidence. The statement showed the

deductions for fees and costs. It stated that the net proceeds of $169,725.48 were to be

distributed to "Robbie W. Fortner, as Independent Administrator." The statement did not

include any allocation of the settlement toward the different types of damages. Rob

testified that he was not aware of any document showing an allocation of the settlement.

He further testified that he never gave a deposition in the case, and he was never asked

about the nature of his relationship with his father. He testified, however, that his father's

death was one of the worst things he experienced in his life. He also testified that he did

not rely on his father for financial help.

3 ¶7 Rob testified about how he spent the settlement proceeds. He used $15,000 to pay

for Gary's funeral expenses, and he paid an $8,000 bill from Medstar. Rob purchased a

minivan for $19,000 and a used Camaro for $15,000. He used $80,000 as a down

payment on a house. In addition, he estimated that he spent $20,000 to $25,000 on

carpeting and flooring in the house. He testified that before buying the house, he was

living in a rental home because he previously lost a home to foreclosure. Finally, Rob

testified that he deposited approximately $1,000 to $1,200 of the funds into a bank

account.

¶8 Shelley testified regarding increased expenses for Kylie. She testified that she was

required to pay $4,780 out-of-pocket for Kylie's braces. Pursuant to an agreement, she

was paying $213 per month. She further testified that Kylie's health insurance cost $200

per month. In addition, Shelley testified that she incurred expenses for Kylie to

participate in sports. Finally, she testified that as Kylie grew up, her clothes and "in

general just everything" were more expensive. Shelley acknowledged that she did not

discuss Kylie's need for braces with Rob.

¶9 The trial court then considered the arguments of counsel. Rob argued that the

settlement was analogous to a personal injury settlement. He pointed to Villanueva v.

O'Gara, where the Second District held that damages for pain and suffering are not

considered to be income because they make the plaintiff whole rather than increasing the

plaintiff's wealth. Villanueva v. O'Gara,

(1996). Rob argued

that the wrongful death settlement "can only be shown" to represent damages for his grief

and suffering and for the loss of his father's society because he was not financially 4 dependent on his father. He further argued that such damages are similar to damages for

pain and suffering in personal injury suits. Thus, he contended, none of the settlement

proceeds are income for purposes of child support. He also pointed out that he no longer

had the settlement proceeds.

¶ 10 Shelley argued that the entire settlement should be treated as an inheritance

because Rob received the proceeds through the estate of Gary Fortner as Gary's sole heir.

She argued that an inheritance is income for child support purposes for two reasons.

First, an inheritance is analogous to a gift, and gifts have been held to constitute income.

Second, there is a presumption that funds received are income. She further argued that

Rob treated the settlement proceeds as income. Alternatively, Shelley argued that even if

the court did not find the settlement proceeds to be income, it should find that the

settlement was a substantial change in circumstances justifying a modification of child

support. She explained that the settlement increased Rob's resources and his ability to

pay support for Kylie.

¶ 11 On January 29, 2015, the court entered a detailed written order. The court first

noted that the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750

ILCS 5/101 et seq. (West 2014)) provides an expansive definition of income. However,

the court also noted that Illinois courts have found that the proceeds of personal injury

awards and settlements do not constitute income for purposes of child support. The court

stated that if Gary Fortner had been a wealthy man when he died, Rob "would have

inherited a sizeable estate." The court explained that such an inheritance "would have

increased his financial resources and quality of life," but "would not have been 5 characterized as 'income'." 1 The court found that "wrongful death proceeds are more akin

to an 'asset' in that it represents the value of life lost to the recipient and has no

resemblance to lost wages." The court thus held that no portion of the settlement

proceeds was income.

¶ 12 The court went on to consider whether there were any factors favoring an upward

deviation from the guideline amount of child support. The court found that the settlement

improved Rob's financial resources and "drastically improved" his standard of living.

The court further found that the settlement did not improve Kylie's standard of living,

which would have occurred if the settlement was received while the parties were married.

The court concluded that a one-time upward deviation from the guideline amount was

therefore appropriate. The court ordered Rob to make a one-time lump-sum payment of

$15,000.

¶ 13 Rob subsequently filed a motion to reconsider. The court denied the motion after

a hearing. This appeal followed.

¶ 14 Rob argues that the court erred in ordering him to pay a lump-sum payment of

additional child support on the basis of the wrongful death settlement proceeds after the

1 We note that although there are no published Illinois decisions addressing the

question of whether an inheritance constitutes income for purposes of child support, the

statutory definition of income is broad enough that it would likely include an inheritance.

See Erica Bertini, Inheritance is Income for Purposes of Child Support Under the

Marriage and Dissolution of Marriage Act, 25 DCBA Brief 26, 29 (2013).

6 court found that they did not constitute income. He further argues that the court erred in

awarding an amount that exceeded Kylie's needs. Shelley argues that the court erred

when it found that the settlement proceeds did not constitute income. Before addressing

the merits of these contentions, we must consider Rob's claim that Shelley's argument is

not properly before us.

¶ 15 Rob argues that we may not consider Shelley's argument because she did not file a

cross-appeal. An appellee may not raise claims of error unless she timely files a cross-

appeal or a separate appeal. See Lagen v. Balcor Co.,

(1995); Ill.

S. Ct. R. 303(a)(3) (eff. May 30, 2008). However, Shelley does not seek relief in this

appeal; she only asks this court to affirm the trial court's ruling. We may affirm the trial

court's ruling on any basis appearing in the record, whether or not that was the basis

relied upon by the court. Benson v. Stafford,

(2010). Thus, we

may consider Shelley's argument that the settlement proceeds are properly characterized

as income as an alternative basis for upholding the court's decision. See Paul B.

Episcope, Ltd. v. Law Offices of Campbell & Di Vincenzo,

(2007). We agree with Shelley that the settlement constitutes income.

¶ 16 Generally, we review a trial court's ruling on a motion to modify child support to

determine whether the trial court abused its discretion. In re Marriage of Rogers,

(2004). Here, however, our decision requires us to consider whether the

proceeds from the wrongful death settlement meet the statutory definition of income for

purposes of child support. See 750 ILCS 5/505(a) (West 2014). We review de novo the

7 trial court's interpretation of this statutory definition. In re Marriage of Rogers,

.

¶ 17 One key purpose of the Dissolution Act is to ensure "reasonable provisions for ***

minor children." In re Marriage of Sharp,

(2006); see In re

Marriage of Klomps,

(1997) (calling this one of the "overriding

purposes" of the Dissolution Act). The pertinent statute defines net income for child

support as "the total of all income from all sources" minus various enumerated

deductions. 750 ILCS 5/505(a)(3) (West 2014). Courts of this state have consistently

held that this is a broad and expansive definition. See, e.g., In re Marriage of Mayfield,

; In re Marriage of Rogers,

; Department of Public

Aid ex rel. Jennings v. White,

(1997). Our supreme court has

explained that " 'income' is simply '*** a gain or recurrent benefit *** received by an

individual' " (In re Marriage of Rogers,

(quoting Webster's Third New

International Dictionary 1143 (1986))) or " '[t]he money or other form of payment that

one receives' " (id. at 137 (quoting Black's Law Dictionary 778 (8th ed. 2004))). The

supreme court has also said that income "includes gains and benefits that enhance a

noncustodial parent's wealth and facilitate that parent's ability to support a child." In re

Marriage of Mayfield,

(citing In re Marriage of Rogers,

).

¶ 18 Most often, these gains and benefits come from sources such as employment,

investments, royalties, or gifts.

(citing In re Marriage of Rogers,

).

However, the definition of income is not limited to these types of payments. Illinois 8 courts have found all of the following types of payments received by noncustodial

parents to fall within the statutory definition of income: lump-sum worker's compensation

awards, individual retirement account distributions, military allowances, and pensions (In

re Marriage of Baumgartner,

(2008)); investment income and

earnings from bonds and securities (Jennings, 286 Ill. App. 3d at 218); severance pay and

deferred compensation payments (id.); distributions from a trust (In re Marriage of

Sharp,

); and gifts from parents (In re Marriage of Rogers,

).

¶ 19 Nonrecurring payments are included in the statutory definition of income.

; In re Marriage of Hart,

(1990). However, the fact that

such payments are unlikely to recur may be a reason to deviate below the guideline

amount. In re Marriage of Rogers,

.

¶ 20 Finally, we must emphasize that the Dissolution Act creates a rebuttable

presumption that any such gain or benefit is income for child support unless specifically

excluded by the statute. In re Marriage of Sharp,

; Jennings, 286

Ill. App. 3d at 218. With these principles in mind, we turn to the merits of Rob's

contentions.

¶ 21 Rob's argument that the court erred in ordering child support based on the

settlement is twofold. He argues that the settlement proceeds do not constitute "income"

within the meaning of the Dissolution Act. He further argues that Shelley did not

demonstrate that a substantial change in circumstances occurred.

9 ¶ 22 In support of his contention that the settlement proceeds did not constitute income,

Rob relies heavily on the Second District's decision in Villanueva v. O'Gara. That case

involved a settlement in a product liability case based on an injury to the noncustodial

father's hand. Villanueva,

. The mother filed a petition

requesting an increase in child support in the form of a one-time payment of 20% of the

father's net proceeds from the settlement.

. The trial court granted the mother's

petition, finding that the entire settlement constituted income for purposes of child

support.

¶ 23 On appeal, the Second District found that although portions of the settlement may

represent income, the trial court erred by including "the entire amount of the [father's]

settlement" in determining his income. (Emphasis in original.)

. The court

explained that while income generally represents a gain or an increase in wealth,

"personal injury awards serve to make an injured party whole."

. The court

went on to explain that damages for pain and suffering, disability and disfigurement, and

the reasonable cost of necessary medical care or treatment "are designed to recompense"

an injured party, while damages for lost wages are "meant to replace a party's lost stream

of income."

. The court held that only the damages attributable to

reimbursement of lost wages could be considered income for purposes of calculating

child support. The court therefore remanded the case to the trial court to determine what

portion of the settlement proceeds represented lost earnings.

¶ 24 Rob argues that damages for his grief and for the loss of his father's society are

similar to damages for pain and suffering. He further asserts that we must find that the 10 entire settlement represents damages for grief and loss of society because he testified that

he was not financially dependent on his father. We believe Villanueva was wrongly

decided, and we decline to follow it. For this reason, we reject Rob's argument.

¶ 25 We first note that neither this court nor our supreme court has directly addressed

the question of whether damages for either personal injury settlements or wrongful death

settlements constitute income for purposes of child support. The decisions of other

districts of the appellate court are not binding on this court. We may therefore "part

company" with the decisions of other districts if we find that those decisions were not

correctly decided. O'Casek v. Children's Home & Aid Society of Illinois,

(2008).

¶ 26 We believe the Second District's decision in Villanueva is at odds with the

principle that the broad and expansive statutory definition of child support includes all

benefits and gains received by a supporting parent unless such gains are excluded by

statute. See In re Marriage of Rogers,

; Jennings, 286 Ill. App. 3d at

217. The trial court in this case found that, with the exception of the $23,000 used to pay

for Gary's expenses, the settlement proceeds represented an increase in Rob's financial

resources. As we discussed at length previously, that is precisely what income

is−something which "enhance[s] a noncustodial parent's wealth and facilitate[s] that

parent's ability to support a child" (In re Marriage of Mayfield,

).

¶ 27 It is also worth noting the Villanueva court cited three out-of-state cases in support

of its decision. See Villanueva,

. Although the decisions of

11 other jurisdictions may be persuasive (see

), we do not believe these three cases

support the conclusion reached by the Villanueva court.

¶ 28 In the Montana case of In re Marriage of Durbin, for example, the trial court

found that a father's personal injury awards were not income for purposes of determining

child support. In re Marriage of Durbin,

(Mont. 1991). In reaching

this conclusion, the trial court reasoned that the father's damage award did not increase

his wealth because the award was intended to " 'restore him to the status quo ante.' "

The trial court also found that the father's future medical expenses resulting from his

injuries were " 'anticipated to be substantial' " and that the money received from the

award was needed to cover these costs.

¶ 29 In reversing this ruling on appeal, the Montana Supreme Court first noted that

under Montana law, much like Illinois law, courts are to consider "all income from all

sources" in determining child support.

The court then explained that it would be

inappropriate to exclude the personal injury awards from the father's income in part

because one purpose of the awards is to replace the father's lost income.

.

However, the court also found that it would be inappropriate to consider the awards as

income without taking into account the father's related medical expenses.

. The

court did not address the question of whether damages for pain and suffering were to be

considered income. However, the court remanded the matter to the trial court with

directions "to subtract [the father's] actual and necessary needs including those associated

with his medical care from his financial resources, and consider the remaining amount in

12 determining a future child support modification." (Emphasis added.)

. The

remaining amount would include any damages for pain and suffering.

¶ 30 Similarly, in the Arizona case of In re Marriage of Gallegos, the appeals court

found it necessary to consider the extent to which a personal injury award was intended

to provide resources to pay for the father's related medical expenses, but did not consider

the question of damages for pain and suffering. In re Marriage of Gallegos,

(Ariz. Ct. App. 1992). There, the trial court increased child support based on the

father's personal injury settlement "without any consideration or reduction for [his]

increased medical and other expenses, necessary to treat his quadriplegic condition."

. The appellate court reversed, directing the trial court on remand to determine the

amount of medical care and other expenses the father would be required to pay "from the

income he receives from his invested settlement amount, and [to] deduct those expenses

from gross income before applying the balance as set forth in the guidelines."

Again,

the balance would presumably have included damages for pain and suffering.

¶ 31 The Villanueva court also cited Geyer v. Geyer, No. 9-92-39,

(Ohio Ct. App. Nov. 25, 1992), an unreported decision of an Ohio appeals court. There,

the appeals court reversed an order modifying child support and remanded the matter to

the trial court with directions to determine what the father's personal injury settlement

was intended to compensate him for. Id. at *2. The Geyer court did not provide any

guidance concerning what elements of damages should be included in the father's income

or excluded from his income.

13 ¶ 32 Thus, while all three cases stand for the proposition that at least some portions of

damage awards should be excluded income for child support purposes, none of the cases

supports the conclusion that damages for pain and suffering, disability, or, as in this case,

damages for emotional grief and loss should be excluded from income. In light of the

broad, inclusive definition of income in the Dissolution Act, we conclude that such

damages are properly included as income within the meaning of the Dissolution Act. We

therefore conclude the settlement proceeds were income for purposes of child support.

¶ 33 This conclusion allows us to resolve Rob's remaining arguments easily. As stated

previously, Rob argues that Shelley did not demonstrate that a substantial change in

circumstances had occurred. Generally, child support may only be modified "upon a

showing of a substantial change in circumstances." 750 ILCS 5/510(a)(1) (West 2014).

However, child support may be modified without showing a substantial change in

circumstances if there is "an inconsistency of at least 20% *** between the amount of the

existing order and the amount of child support that results from application of the

guidelines" to the supporting parent's current income. 750 ILCS 5/510(a)(2)(A) (West

2014).

¶ 34 Here, the settlement proceeds resulted in such an inconsistency for the year in

which Rob received the settlement. As we stated previously, the court found that

$23,000 from the settlement was used to pay Gary Fortner's funeral expenses and his

Medstar bill. Although the court did not call the remaining $146,725 of the settlement

proceeds "income," the court did find that these funds increased Rob's resources and

improved his standard of living. Based on our foregoing discussion, we believe this 14 amount is more properly characterized as nonrecurring income in the year it was

received. Applying the guideline of 20% to this figure yields a result of $29,345 in total

additional child support, which is approximately $2,445 per month. This is far more than

20% above the $313 per month Rob was paying. Therefore, the court could properly

modify child support to order a one-time payment without finding any substantial change

in other circumstances.

¶ 35 Finally, Rob argues that the court abused its discretion in awarding child support

in an amount that exceeded Kylie's demonstrated needs. We disagree. We acknowledge

that most of Shelley's testimony regarding Kylie's increased financial needs was vague.

Shelley did testify that she incurred specified additional expenses for Kylie's braces and

health insurance. Beyond that, however, she merely asserted that Kylie's clothing and

"just everything for Kylie" had become more expensive. Nevertheless, we may presume

that a child's needs increase over time as she grows older and the cost of living increases,

particularly where, as here, there has been an increase in the noncustodial parent's

income. See In re Marriage of Adams,

(2004).

¶ 36 Moreover, we believe that the court properly considered the extent to which Kylie

would have shared in the increased standard of living Rob was able to afford by virtue of

the settlement proceeds had the marriage not ended. See 750 ILCS 5/505(a)(2)(c) (West

2014). We also note that the amount ordered was less than the 20% guideline. Although

this was justified by the nonrecurring nature of the income and the fact that Rob had

spent it, we nevertheless do not find it to be a "windfall" to Shelley and Kylie. See In re

Marriage of Singleteary,

(1997) (explaining that courts "must 15 consider the standard of living the children would have enjoyed absent parental

separation and dissolution," and that therefore "child support is not to be based solely

upon the shown needs of the child").

¶ 37 For the foregoing reasons, we affirm the order of the trial court.

¶ 38 Affirmed.

16

NO. 5-15-0246 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

In re MARRIAGE OF ) Appeal from the ) Circuit Court of SHELLEY S. FORTNER, n/k/a ) Randolph County. Shelley S. Scanlan, ) ) Petitioner-Appellee, ) ) No. 06-D-62 and ) ) ROBBIE W. FORTNER, ) Honorable ) Eugene E. Gross, Respondent-Appellant. ) Judge, presiding.

Opinion Filed: April 5, 2016 ________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Richard P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur ________________________________________________________________________

Attorney Jordan D. Gremmels, Fisher, Kerkhover, Coffey & Gremmels, for 1300 ½ Swanwick Street, P.O. Box 191, Chester, IL 62233 Appellant ________________________________________________________________________

Attorney Lucas H. Liefer, Cooper & Liefer Law Office, 205 East Market, for P.O. Box 99, Red Bud, IL 62278 Appellee ________________________________________________________________________