Rule 23 order filed

January 27, 2022. Motion to publish granted NO. 5-21-0065 February 24, 2022. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of KRISTI BRITTON, ) Williamson County. ) Petitioner-Appellee, ) ) and ) No. 12-D-183 ) BRENT BRITTON, ) Honorable ) Carey C. Gill, Respondent-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court, with opinion. Justices Welch and Moore concurred in the judgment and opinion.

OPINION

¶1 Respondent, Brent Britton, appeals the trial court’s orders that (1) required him to

reimburse petitioner, Kristi Britton, for one-half of the cost of voluntarily-obtained supplemental

insurance; (2) shifted Brent’s obligation to pay the children’s health insurance premiums to Kristi;

(3) ordered Brent to reimburse Kristi for educational expenses incurred prior to the filing of the

modification petition; (4) imputed income to Brent; (5) determined Brent’s gross monthly income

was $14,529; (6) calculated Kristi’s gross income without interest or capital gain stemming from

a stock sale; and (7) calculated child support and awarded arrearage based on the erroneous

1 findings for income. For the following reasons, we affirm in part, vacate in part, and remand for

further proceedings.

¶2 I. BACKGROUND

¶3 Kristi and Brent were divorced on April 25, 2012. Two children were born of the marriage,

K.B., born 05/02/2003, and A.B., born 02/09/2005. The parties entered into a marital settlement

agreement (MSA) and a joint parenting agreement (JPA) that were incorporated into the judgment

of dissolution. Pursuant to the JPA, the parties shared joint custody of the children with Kristi as

the residential parent and Brent receiving parenting time. Pursuant to the MSA, Brent would pay

$200 per week in child support and maintain health insurance on the minor children with each

party responsible for “one half of all deductibles and expenses *** not covered by insurance.” The

parties also agreed to split the expenses for the children’s extracurricular activities up to $500 per

year. Based on the dissolution documents, both Brent and Kristi were employed, held equal shares

of Britton Trucking, Inc., Britton’s Wrecker Service, Inc., and Britton Transportation Services,

Inc., and would continue to use their company cars following the divorce. No income was listed

for either party.

¶4 On October 17, 2017, Kristi filed a petition to modify claiming that when the parties

divorced, Brent’s income was approximately $1030 per week. She alleged a substantial change in

circumstances since the dissolution, claiming that Brent’s income had increased substantially, the

needs of the minor children had changed, and the cost of providing for those needs had increased.

On November 22, 2017, Brent admitted his income had increased substantially but denied the

needs of the minor children had changed and the cost of providing for those needs increased.

¶5 On December 12, 2017, Brent filed a counterpetition to modify the JPA stating, inter alia,

that despite the joint custody classification, Kristi involved the children in numerous

2 extracurricular activities without Brent’s agreement which limited, hampered, or undermined his

parenting time. Brent also contended that Kristi had enrolled K.B. in a private school in Missouri,

against his wishes, which required him to drive 75-80 minutes each way to pick up and drop off

K.B. at school. Brent also filed a petition for rule to show regarding his allegedly disrupted

parenting time.

¶6 Kristi responded on December 21, 2017, admitting, inter alia, the parties mutually

modified the prior parenting time agreement and that she permitted the children to become

involved in the extracurricular activities. She affirmatively stated that she was “under no obligation

to discuss or obtain the agreement of [Brent]” and claimed that prior to the filing he “never objected

to the children’s extra-curricular activities or the time they occur.”

¶7 Following unsuccessful mediation, Kristi filed her financial affidavit on March 5, 2018.

The affidavit listed her gross income in 2017 as $157,533, which included pension fund money

used to build a house. It further listed her gross income in 2018 (through February 15, 2018) as

$8070.10. Her gross monthly income, before taxes, was $7603.19, which included her employment

($4635.92), child support ($866.67), and payments for her shares of the Britton businesses

($1050.30). The document also revealed that her new husband’s medical insurance policy covered

her and the children.

¶8 On December 27, 2018, Kristi filed a petition to allow attorney fees stating she was without

adequate funds to pay her attorney fees and that Brent earned “significant sums of money” and

was “well able to pay” Kristi’s incurred attorney fees. On the same date, Kristi also filed a petition

for rule to show cause claiming that Brent refused and failed to pay reimbursement related to

medical bills that were not covered by insurance and the children’s extracurricular activities. Brent

responded on January 10, 2019, admitting he was gainfully employed but denied the remainder of

3 the allegations. Brent also denied that he refused to pay any medical expenses or his portion of the

children’s extracurricular activities.

¶9 Kristi filed an updated financial affidavit on July 25, 2019, and an amended financial

affidavit on August 7, 2019. The amended financial affidavit listed gross monthly income of

$6190.84. The document claimed that Kristi received $2100.60 from Brent “as part of their

property settlement.” The document again noted that Kristi and the minor children were covered

under her new husband’s health insurance policy.

¶ 10 On July 31, 2019, Brent filed a pretrial memorandum that included a financial affidavit

dated July 30, 2019. The affidavit stated his gross income in 2018 was $55,768 and $21,750 in

2019 (through July 26, 2019). The affidavit listed Brent’s gross monthly income as $4902.42. He

claimed that his total available monthly income was negative $2594.31. Brent’s tax returns were

attached to the pleading.

¶ 11 On August 8, 2019, the parties proceeded to hearing. The trial court noted all pending

pleadings and stated the parties would present the evidence and testimony related to the children

first; thereafter, the court would proceed on the financial issues. Following the hearing, the trial

court ordered joint decision making as to the extracurricular activities, stated that K.B. would

continue to attend private school in Missouri, and amended the parenting time schedule to provide

additional time to Brent so long as the children were taken to all scheduled activities. The order

reserved ruling on holiday parenting time.

¶ 12 Kristi filed a “second corrected child support calculation” on October 30, 2019, based on

the new parenting time allocation. The document listed Brent’s income as $176,569 in 2018,

$216,305 in 2017, and $293,917 in 2016. The income amounts included section 179 (

(2018)) deductions of $107,700 in 2018, $174,322 in 2017, and $118,133 in 2016 reported

4 on Brent’s business taxes. Kristi averaged these amounts, divided the average by 12, and claimed

Brent’s monthly income was $19,077.

¶ 13 On October 31, 2019, the trial court issued its order as to holiday parenting time and reset

the financial hearing for a later date. At the hearing, Kristi tendered 22 exhibits for the financial

hearing with no objection from Brent and Brent submitted an amended financial affidavit. Brent’s

amended financial affidavit listed gross income of $98,070.01 in 2018 and total gross income in

2019 (through October 25, 2019) as $73,495.80. The affidavit listed $6618.33 in monthly gross

income comprised of $3117.50 in regular employment earnings, $135.42 in rental income,

$2613.87 in distribution and draws, and $1618.21 in-kind payment of health insurance from his

business. The affidavit listed Brent’s total available monthly income as negative $3447.63.

¶ 14 On December 26, 2019, Kristi filed an amended petition to modify. The amended petition

requested an increase in child support (as before) and contribution from Brent towards the

children’s educational expenses, including private school tuition, fees, books, lunches, and

extracurricular activities. Brent’s January 13, 2020, response denied that his income increased

significantly but agreed the needs of the minor children changed and increased. Brent admitted the

remaining allegations but denied Kristi was the sole source of funding for private school because

he had been paying child support for the benefit of the children since the judgment of dissolution

was entered and contended both parties should contribute to the support of the children.

¶ 15 On February 13, 2020, the case proceeded to hearing on the remaining financial issues.

Kristi testified that she was 39 years old and was employed by University of Illinois Extension

where she worked as a youth development educator. She stated that her amended financial affidavit

incorporated the raise she received the previous year, and she recently received another raise. Kristi

stated the children attended school at Saxony Lutheran in Jackson, Missouri, and the monthly

5 tuition was $1075. The children’s lunches were an additional $140 per month. She stated that she

had always been the only person to pay their tuition and that the children attended private school

since kindergarten. Kristi stated that she sold her ownership of the Britton businesses back to Brent

and those monthly amounts were included in her income on her financial affidavit. On cross-

examination, Kristi confirmed that her future State of Illinois salary was $57,907.25. She also had

additional income in the amount of $2100 per month for the sale of the business stock to Brent.

She admitted the total amount received was $22,897 and listed as a capital gain on her 2018 tax

return.

¶ 16 Brent testified that he was 39 years old and was the owner of Britton Trucking, Inc., Britton

Transportation Services, Inc., and Britton’s Wrecker Service, Inc. Britton Trucking owned the land

and building where it sat and rented it to the wrecker service. Britton Transportation Services, Inc.,

operated as a separate company because the federal motor carrier rules did not allow a broker

license in the same name of the trucking company, so it was for the broker license only. Britton’s

Wrecker Service, Inc., was a towing recovery business with locations in Metropolis, Vienna, and

Mounds, Illinois. Each location had its own heavy duty, light duty, and service trucks. Brent

confirmed the copies of his 2016, 2017, and 2018 tax returns. He also confirmed that his total

household income listed on the tax returns was $87,976 in 2018, $152,530 in 2017, and $128,897

in 2016.

¶ 17 Brent was provided copies of his July 30, 2019, and October 25, 2019, affidavits and was

asked about the discrepancies in the numbers during that three-month period. He confirmed that

he did not make $53,000 in three months. He stated that he was provided the first affidavit 12

hours before it was due, and he prepared the second one after he sat down with his accountant. His

accountant told him he had to include distributions from the company which was classified as

6 partnership distribution money. They calculated all those numbers and separated them out to make

the second affidavit more accurate, which also included his health insurance. Brent agreed that

based on his affidavit, he was spending $40,000 more a year than he was making.

¶ 18 Brent agreed that his real estate taxes were higher on the second affidavit because it was

revised to be more accurate. He stated that the mortgage listed on the affidavit was one-half of the

actual amount, the homeowner’s insurance was the full amount, and the electric bill was probably

one-half of the actual amount. The amounts for cable and internet were the full amounts. Groceries

were about $100 each week on average. Brent also stated that the car payment was double what it

showed. Repairs and maintenance along with insurance, license, and stickers were also “probably

double that.” Brent stated that the personal expenses listed on his affidavit were accurate and

included only his medical expenses. Brent confirmed that the household also paid medical

expenses for his wife. He was unsure how much he paid in out-of-pocket expenses for his wife the

year before. He thought they met their deductible, which he believed was $3500 per person.

¶ 19 Brent agreed that he included $300 per month for vacations and stated it was an average of

what he figured for himself. He agreed it would be double if they included his wife and more yet

if they included the children. He testified that he went on one cruise that year and five people went

on the cruise. He stated it was about $789 per person and with taxes it cost about $3600. Counsel

then stated that it would be $600 a month on average if his wife was included. Brent asked, “You

want to include her portion in this too?” Counsel stated, “Well her income is on your tax return,

isn’t it?” Brent confirmed that it was.

¶ 20 Brent was then asked about the $480 per month listed for doctor’s visits for his children

and the claimed medical expense of over $5000 per year. Brent explained that his son had a kidney

problem, and they were going to St. Louis on a regular basis. Brent also confirmed the average

7 monthly attorney fee of $1001.20. and the annual attorney fee of $12,000 in 2019. Brent agreed

his prior financial affidavit did not include attorney fees. Brent confirmed he currently had no

attorney fee debt. He agreed that he did not provide the fair market value of his businesses, stating

it would be hard to estimate without appraisals.

¶ 21 Brent confirmed that he ran a deficit of $3447 a month. Kristi’s counsel stated that doubling

the expenses would increase the deficit by over $2500, for a total of $6000 a month, and asked

Brent, “So *** that $72,000.00 a year that you’re spending in excess of your income. Where does

that money come from?” Brent stated it was all solely based on his personal income. Counsel again

asked, “Okay, back to where I was, where does this $72,000.00 come from that you spend in excess

of your income based upon your Financial Affidavit?” Brent stated that his wife worked too and

up until recently she had worked every day. Brent confirmed that his total household income listed

on his 2018 taxes was $87,000. Counsel then asked again, “Where does the extra money come

from that your budget reflects you spend above and beyond your income?” Brent stated, “If you

look in the tax returns on the back side where it shows distributions on those pages, those

distributions are reflections to this. So, those distributions are directly distributed to me. My wife

owns a business as well. Some of them are distributed directly to her.” Brent confirmed that his

monthly business distributions were listed as $2613.87 on his financial affidavit and that the

amount was included in the $6618.33 listed as his total income on the financial affidavit. Counsel

stated that “with the distributions you have shown on this Financial Affidavit, you got the $3447.00

deficit every month.” Brent stated, “I did something wrong. I don’t know. I really can’t answer

that question 100 percent. I don’t know how. I done something wrong.” Counsel then asked,

“Would it be fair to say you don’t know where all distributions come from that you incorporate

into your living expenses?” Brent replied, “No, that would not be. *** [T]he distributions come

8 from the corporations. The corporations are itemized in the tax returns of the distributions *** but

I did this on a basis, so I really don’t know the answer to that question. Sorry.” Counsel then stated,

“Let me ask the question another way. Would it be fair to say that you get distributions that go to

your monthly living expenses that don’t show up on your tax return as taxable income?” Brent

stated, “No.” He again confirmed the gross family income on the 2018 tax return as $87,976.

¶ 22 Brent stated that he lived in Tunnel Hill on six acres. He stated that the wrecker service

owned 113 acres that adjoined his property and agreed that he moved dirt on that property to create

a pond. He explained that they were flattening a hill to build a building in the future and stop

erosion on the property. He agreed that he kept horses on the property. He stated that the 113-acre

parcel was the future location for his business because he needed a bigger lot and building where

all the vehicles could be parked. He stated the price was cheaper than buying five acres in town.

All the trucks, including the wrecked semis, could be parked on the future location. He agreed the

company made the monthly payment on the 113 acres. He stated that 23 acres of the property were

fenced and that was where he kept his horses. He agreed that none of the trucks were on the 23

acres, and he currently had no business use on the 23 acres.

¶ 23 On cross-examination, Brent confirmed that, other than the 23 acres, there were no other

monthly expenses that he had or that his wife had that were paid by the business and that anything

that was paid by the business was distributed on the tax returns. He agreed that a few of the

expenses on his affidavit were paid by the business but they reflected the income for that on the

affidavit which included the health insurance payment. Brent had an accountant who prepared both

his personal and the business income taxes. The accountant would come in once a month and work

with the secretary to keep everything current. Brent stated that some of his businesses had very

substantial purchases in the last few years, including wreckers and equipment, which were

9 reasonable and necessary expenses associated with the business. He stated there were three

wrecker services with equipment at each location. Brent testified that the section 179 expenses

were necessary for the business and the information was contained in the tax returns. He was

unaware of any IRS or State of Illinois challenge to his tax returns. He further confirmed that no

state or federal agency ever challenged the section 179 expenses set forth on the tax returns.

¶ 24 On redirect, Kristi’s counsel stated that Brent had roughly $72,000 more in expenses than

his tax return reflected in income and again asked Brent where he was getting the money to pay

these expenses each month. Brent stated that counsel’s statement was incorrect. He stated there

were certain expenses, such as the property tax and health insurance, that the company directly

wrote checks for and that showed up on his tax returns, but it was not listed as personal income.

He included his half of that on his affidavit. He stated that some of the distributions went to his

wife and those were not listed on his financial affidavit. He disagreed with counsel’s claim of a

$70,000 error. Brent stated that he went over the numbers in detail with his accountant. He did not

believe that his deficit was greater than was shown on his affidavit.

¶ 25 On recross, Brent disagreed that he had roughly $70,000 in excess every month that was

paid toward his individual bills. On redirect, Kristi’s counsel again asked Brent how the expenses

were being paid if he did not have the extra money or new debt to show they were not being paid.

Brent responded that he did not have those kinds of expenses.

¶ 26 Following a break, Brent’s counsel called Brent back to the stand. Brent confirmed that his

2018 tax return contained income for both him and his wife. He stated his tax returns also contained

the K-1s that showed the amounts of income for distributions from the business. Brent’s financial

affidavit listed an income of $98,070.01. Brent agreed that his tax return reflected a different

amount of income. He agreed that his expenses, that were partially or in-whole paid by the

10 company, were accounted for in the distributions shown on his tax returns. This included the

mortgage, real estate taxes, insurance, cell phone, car payments, and gasoline. He confirmed that

his wife had income she received in addition to what was reported on his financial affidavit. He

disagreed that the $70,000 in expenses existed. On cross-examination, Brent confirmed that he

received $55,120 in wages from Britton’s Wrecker Service and his wife was paid $11,414.

¶ 27 The court stated it would allow the parties to submit posthearing briefs on the issue of

Brent’s income and the child support calculation. The court also asked about Kristi’s health

insurance. Kristi’s counsel clarified the issue was whether the secondary insurance, covered at his

client’s cost, should benefit Brent, or only applied toward Kristi’s share of the noncovered

medicals. After discussing the health insurance issue, the court stated:

“All right. I am going to rule on this. I don’t want a brief on the health insurance. What I

am going to rule is for that amount that was paid before, he is going credit—give her $50.00

a month for each of the months that she paid the $100.00. You’re both responsible for

health insurance. *** That’s my ruling. Going forward, I would hope that you can resolve

it. I have ruled on the health insurance.”

¶ 28 The court then moved on to the educational expenses. Brent’s counsel stated that the parties

should share the cost of the tuition with each paying half. The court asked Kristi’s counsel if she

was asking for something different than that, and he said, “No, your Honor.” Thereafter, the court

stated, “All right. And that will go back for the entire time that the child was in school—that the

children were in school; is that correct, Mr. Reed?” Kristi’s counsel stated, “If the court would

consider making it that far retroactive, your Honor.” Brent’s counsel asked that it only go “from

the date of the order forward.”

11 ¶ 29 Thereafter, the court noted four issues: (1) the party’s net income for child support,

(2) educational expenses and extracurricular expenses, (3) petitioner’s voluntary health insurance,

and (4) attorney fees, and stated:

“All right. As to net income, I will permit the petitioner to file an updated pay stub to

calculate her net income. I am going to impute some income to respondent. I will permit

the parties to brief the amount of imputed income and also arguments as to Section 179

deductions. *** [T]his *** ruling *** is significant because I find the testimony of the

respondent not credible as to his actual income and expenses.

Sir, your testimony, unfortunately, doesn’t give me the ability to figure out what

your income is. Accountants and preparation of tax returns can maybe, let’s say, massage

the numbers to give you better tax advantage or to do things, but you have to know what

you earn, and you have to know what you pay, and you have to be candid with the Court.

*** I find that your Financial Affidavit was not accurate. I think the one thing that I can

say was that likely did not reflect your actual expenses and your actual income. I heard

testimony that there were things listed as your expenses that the company paid. Sounded

like that might have also been included as income that you brought in that you had included

as your income but then you subtracted it out as your expense[,] but it wasn’t your expense.

It likely should have just been included in your income because it was in-kind payment to

you, but you were paying out the expense. It was an in-kind payment to you because they

paid it for you, but it was very difficult to follow, and not answering the questions doesn’t

give me the information that I need *** to determine your net income. So, I am going to

permit counsel to brief those amounts. You will be imputed some income. I do find that

12 the one thing I know is that you’re making more income than what your affidavit says. The

question is[,] how much more.

As to educational expenses and extracurricular expenses, I am going to rule that the

education expenses shall be shared 50/50 by the parties retroactive to the start of the school

year for 2019-2020. *** I will allow you to tender that agreement as to what that’s going

to look like. There is going to be a refund from the respondent to the petitioner for what’s

been paid for 2019-2020 school year or whether you are going to alternate payments on

years. I will permit that to be tendered to me by agreement. If you don’t reach an agreement,

I will come up with a way that I will order.

The parenting *** [p]lan remains as previously entered regarding the

extracurricular activities. So, it’s going to stay what it was. Share in it up to that dollar

amount, and I will let counsel look at what that was. But my ruling is that I find no reason

to change that.”

¶ 30 After confirming that Kristi had been paying the voluntary health insurance premiums

since June of 2014, and hearing arguments from counsel, the court continued:

“All right. We’re not going to go back an indefinite amount of time, but we’re going to—

you’re going to pay 50 percent of those voluntary premiums from 2018 to the present from

January 1st, 2018[,] to the present.”

¶ 31 The court also stated:

“All right. Future calculation of the child support shall take into consideration all

payments of health insurance regardless of where they fall. That should be able to be

accomplished under the new format. If it’s not, counsel, you can let me know and we’ll

13 figure out what we’re going to do. Perhaps it’s just better to look at what insurance is best

and cheapest and most accommodating.

Fourth, petitioner’s request for contribution to attorney’s fees, um, I am going to

reserve ruling and permit briefs on that issue.”

¶ 32 The trial court ordered Brent to provide the tax, mortgage, and insurance information

related to the 23 acres of the 113 acres owned by his business that was used to house the horses.

The trial court’s February 13, 2020, docket hearing entry confirmed, inter alia, that education

expenses would be shared 50/50 by the parties, “retroactive to the start of the school year or 2019-

2020,” and Brent was required to “pay for 50% of [Kristi’s] voluntary [health insurance] premiums

from 1/1/2018 to present.”

¶ 33 Kristi filed an updated paystub with the court on February 20, 2020, that listed her gross

monthly income as $4825.60. Following submission of the posthearing briefs, which included

Kristi’s claim that Brent’s monthly net income was $15,263 and Brent’s claim that his 2018

monthly gross income was $7636.78, and a hearing on June 16, 2020, at which time the court heard

arguments as to whether petitioner’s income should include money from the sale of the stock to

Brent, the court issued a docket entry ruling that found:

“1. THAT SAID STOCK SHALL NOT BE INCLUDED IN PETITIONER’S NET

INCOME AS IT IS MORE IN THE NATURE OF SHARES OF STOCK CAPABLE OF

BEING SOLD (IN RE MARRIAGE OF MARSH, 2013 ILL. APP. (2D) 130423 (2013)),

RATHER THAN UNVESTED STOCK OPTIONS (IN RE MARRIAGE OF

COLANGELO, 355 ILL. APP. 3D 383 (2005)).

2. HEALTH INSURANCE SHALL BE SHARED 50/50 BY PARTIES. MINOR

CHILDREN SHALL BE COVERED UNDER HEALTH INSURANCE OF

14 PETITIONER, SO LONG AS IT IS MORE COST-EFFECTIVE TO HAVE SAID

COVERAGE, OR BY AGREEMENT OF THE PARTIES.

3. INCOME OF RESPONDENT (AS TO ACTUAL AND IMPUTED) IS TAKEN

UNDER ADVISEMENT.

4. PETITIONER’S REQUEST FOR ATTORNEY’S FEES IS DENIED.

COURT RULES THAT RESPONDENT[’S] GROSS INCOME (AS TO ACTUAL

AND IMPUTED) IS SET AT $14,529.00 PER MONTH.”

¶ 34 The child support calculations were submitted on July 15, 2020. On September 29, 2020,

the trial court issued a docket entry order finding that Brent’s child support obligation beginning

in September 2020 would be $1010.66. The court also noted the new issue arose toward arrearages

and set the matter for a hearing which was held on November 24, 2020. Both parties filed their

closing arguments on child support arrearage on December 22, 2020.

¶ 35 On February 5, 2021, the trial court issued a docket entry order that ordered child support

arrearage back to November 1, 2017. Thereafter the court found that Brent’s child support from

(1) November 2017 to July 2019 was $1538.26 per month, (2) August 2019 to August 2020 was

$785.56, and (3) September 2020 going forward was $1010.66 per month. On March 5, 2021,

Brent appealed.

¶ 36 II. ANALYSIS

¶ 37 On appeal, Brent contends that the trial court (1) did not have subject matter jurisdiction to

order him to pay one-half of Kristi’s supplemental health insurance policy or revise the health

insurance obligation; (2) did not have subject matter jurisdiction to award educational expenses

prior to the date Kristi filed her amended petition to modify; (3) erred when imputing income to

Brent; (4) erred when it calculated Brent’s net income from the erroneous gross income; (5) erred

15 when it calculated Kristi’s gross income without interest or capital gain; and (6) erred in

calculating the child support and arrearage based on the erroneous incomes.

¶ 38 Health Insurance—Kristi’s Supplemental Policy

¶ 39 Whether a court has subject matter jurisdiction to grant the relief provided is a question of

law that is reviewed de novo. In re Marriage of Chrobak,

(2004).

Decisions issued without jurisdiction are void. Ligon v. Williams,

(1994).

As noted by Ligon:

“The court’s authority to exercise its jurisdiction and resolve a justiciable question is

invoked through the filing of a complaint or petition. [Citations.] These pleadings function

to frame the issues for the trial court and to circumscribe the relief the court is empowered

to order; a party cannot be granted relief in the absence of corresponding pleadings.

[Citations.] Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where

no justiciable issue is presented to the court through proper pleadings, the court cannot

adjudicate an issue sua sponte.”

¶ 40 The April 25, 2012, MSA stated that Brent “shall maintain health insurance” on the

children and “each party shall be responsible for payment of one-half of all deductibles and

expenses” not covered by insurance. None of the parties’ pleadings requested a contribution from

Brent toward the supplemental insurance. The relevance of Kristi’s health insurance stemmed from

the hearing on Kristi’s petition for rule to show cause at which time it was determined that Kristi

voluntarily obtained supplemental health insurance on the children, via her new husband’s

insurance at a cost of $100 per month, which covered amounts not paid by Brent’s primary health

insurance on the children. The issue was whether Brent could take advantage of the supplemental

policy towards his portion of the amounts remaining due after his insurance was used or if the

16 supplemental policy only applied to Kristi’s portion. Following the February 13, 2020, hearing,

the trial court’s docket entry order stated, inter alia, that “Respondent [Brent] shall pay for 50%

of those voluntary premiums from 1/1/2018 to the present.”

¶ 41 “ ‘[A] judgment, order or decree entered by a court which lacks jurisdiction of the parties

or of the subject matter, or which lacks the inherent power to make or enter the particular order

involved, is void and may be attacked at any time or in any court, either directly or collaterally.’ ”

(Emphasis omitted.) R.W. Sawant & Co. v. Allied Programs Corp.,

(1986)

(quoting Barnard v. Michael,

(1945)). On appeal, Kristi argues that the trial

court’s ruling was proper based on her rule to show cause prayer for relief which requested,

“judgment be entered in favor of petitioner and against the respondent for all sums found due.”

¶ 42 However, the purpose of a rule to show cause petition is to determine if a party has

complied with a prior court order, allows the allegedly noncompliant party the opportunity to

explain any noncompliance and, if necessary, allows the trial court to enforce the prior court order.

See In re Marriage of LaTour,

(1993). No part of the parties’ MSA

required Brent to pay 50% of Kristi’s supplemental insurance. As such, the trial court’s order

requiring Brent to pay 50% of Kristi’s supplemental insurance from January 1, 2018 (11 months

prior to the filing of Kristi’s rule to show cause petition), to February 13, 2020, pursuant to Kristi’s

rule to show cause petition is void for a lack of subject matter jurisdiction.

¶ 43 Health Insurance—Modification of the Obligation

¶ 44 Following the June 16, 2020, hearing, the trial court also modified the MSA to remove

Brent’s obligation to pay for health insurance and placed the obligation on Kristi. On appeal, Brent

contends that the trial court was without jurisdiction to make this modification. In response, Kristi

contends that the trial court’s ruling was exactly what Brent requested in “Respondent’s

17 Demonstrative Aid Exhibit 1” filed with the court during the February 13, 2020, hearing. Kristi

also argues that because health insurance is incorporated with child support that her petition to

modify child support also covers the health insurance.

¶ 45 While Brent contends on appeal that no petition to modify the health insurance obligation

was before the court, there is no dispute that both parties submitted documentation to the trial court

permitting the modification. On February 13, 2020, Brent submitted what was catalogued as

“Respondent’s Demonstrative Aid #1” with the court. In that document, Brent stated, “As this

Court can see, the Aids contemplate Respondent (Father) no longer carrying health insurance for

the children. There is no reason for both parties to carry health insurance and Petitioner (Mother’s)

policy is a much more inexpensive policy.”

¶ 46 On July 15, 2020, Kristi’s counsel sent correspondence to the court that stated, inter alia,

“The parties have agreed that primary coverage will be through Kristi’s *** employment and that

they will be dividing equally the portion of the premium attributable to their children.” The

remainder of this issue addressed the proposed order and the need to start the process for coverage.

¶ 47 Later that same day, Brent’s counsel submitted his child support calculations. His pleading

advised the court, “This Court further Ordered the parties to determine what the best insurance

situation would be and equally share in the cost of such health insurance. This has not been

finalized by the Parties and is still being worked on.” However, the pleading further stated that

placing an arrearage burden on Brent would “cause an unnecessary financial hardship going

forward especially in light of the fact that Respondent is going to continue to pay one-half of the

tuition, paying one-half of the health insurance, and also paying child support on the imputed

income set by the Court.” (Emphases added.) Nothing in Brent’s pleading contradicted the

statements by Kristi’s counsel regarding the health insurance agreement.

18 ¶ 48 “Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial

court proceeds and later claim on appeal that the trial court’s actions constituted error.” (Internal

quotation marks omitted.) Direct Auto Insurance Co. v. Bahena,

.

“A party cannot invite an error by the trial court and then use it as a basis for appeal.”

Here, the

record reveals that both parties invited the trial court to issue an order modifying the MSA’s health

insurance obligation to Kristi and that both parties would contribute equally toward that premium.

As such, we find the trial court did not err in modifying the health insurance obligation.

¶ 49 Education Expenses

¶ 50 Kristi’s amended petition to modify support requested contribution from Brent toward the

children’s education expenses and was filed on December 26, 2019. The trial court’s oral February

13, 2020, order ruled that “education expenses shall be shared 50/50 by the parties, retroactive to

the start of the school year or 2019-2020.” (Emphasis added.) The trial court’s February 5, 2021,

docket entry order clarified this was “essentially relating back to August 2019.”

¶ 51 There is no dispute that the trial court’s order was retroactive to the start of the school year,

which was prior to the filing of the amended petition to modify. While Kristi contends on appeal

that the order should be interpreted in a manner that would not require Brent to pay any of the

retroactive education expenses, Kristi’s interpretation is not what the trial court ordered.

¶ 52 Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act states, “Except as

otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section

505.2,[1] the provisions of any judgment respecting maintenance or support may be modified only

as to installments accruing subsequent to due notice by the moving party of the filing of the motion

for modification.” 750 ILCS 5/510(a) (West 2018). “[O]nce a petition has been filed and upon a

1 Neither of these sections are applicable here. 19 showing of a substantial change in circumstances, support payments can be modified as of the date

the petition was filed.” (Emphasis in original.) In re Marriage of Heil,

(1992). As the trial court’s order was retroactive prior to the date that Kristi filed the amended

petition addressing the educational expenses, the order was contrary to law, and therefore, must be

vacated.

¶ 53 Imputed Income

¶ 54 “In order to impute income to a party, the court must find that the payor is voluntarily

unemployed, is attempting to evade a support obligation, or has unreasonably failed to take

advantage of an employment opportunity.” In re Marriage of Liszka,

,

¶ 44. “If none of these factors are in evidence, the court may not impute income to the noncustodial

parent.” In re Marriage of Gosney,

(2009). The court’s decision to

impute income is reviewed under an abuse of discretion standard.

¶ 55 Here, Brent claims that the trial court erred by imputing his income because it failed to

provide one of the three above-stated reasons for the finding. However, the trial court found that

Brent’s testimony regarding his income was not credible at the February 13, 2020, hearing. One

of the issues at that hearing was “the setting of respondent’s income” to determine child support

pursuant to Kristi’s petition to modify. Given the trial court’s finding, and the undisputed issue at

the hearing, we conclude that the trial court imputed income to Brent because it believed that he

was attempting to evade a support obligation. As such, the trial court’s finding that Brent’s income

could be imputed is not against the manifest weight of the evidence.

¶ 56 Amount of Imputed Income

¶ 57 A trial court’s determination of income is reviewed under an abuse of discretion standard.

“The amount of income imputed by the court must be supported by evidence showing that it is

20 commensurate with the supporting parent’s skills and experience.” Liszka,

. The amount “should be based on his earning capacity, not his spending habits.” Id.

¶ 50.

¶ 58 Here, Brent’s income stemmed from his employment and ownership of the Britton

enterprises. The legislature provided the following guidance for calculating business income:

“For purposes of calculating child support, net business income from the operation of a

business means gross receipts minus ordinary and necessary expenses required to carry on

the trade or business. *** The court shall apply the following:

(A) The accelerated component of depreciation and any business expenses

determined either judicially or administratively to be inappropriate or excessive

shall be excluded from the total of ordinary and necessary business expenses to be

deducted in the determination of net business income from gross business income.

(B) Any item of reimbursement or in-kind payment received by a parent

from a business, including, but not limited to, a company car, reimbursed meals,

free housing, or a housing allowance, shall be counted as income if not otherwise

included in the recipient’s gross income, if the item is significant in amount and

reduces personal expenses.” 750 ILCS 5/505(a)(3.1) (West Supp. 2017).

¶ 59 Our colleagues addressed the 2017 statutory change related to section 505(a)(3.1)(A) in

In re Marriage of Hochstatter,

, stating:

“It is clear that section 505(a)(3.1)(A) now explicitly excludes accelerated

depreciation from the calculation of net business income and does not explicitly mention

nonaccelerated depreciation. [Citation.] The implication from the continued omission of

nonaccelerated depreciation from the plain language of the statute is that it could still be

21 deducted, but only if the court, in its discretion, determines it to be an appropriate and

reasonable business expense that is required to carry on the trade or business. [Citation.]

At a fundamental level, this is no different than the way nonaccelerated depreciation was

handled in the preamendment version of section 505.” (Emphasis in original.)

¶ 60 This court agreed with the Hochstatter discussion in In re Marriage of Burnett,

. In Burnett, we addressed depreciation and noted that

“under section 505, the court must first determine if any amount of the claimed depreciation

is accelerated depreciation. If so, that amount must be excluded as it is not allowed when

calculating income for the purposes of determining child support. Then the trial court must

look at the nonaccelerated depreciation and decide as to whether the depreciation is an

appropriate and reasonable business expense that is required to carry on the business.” Id.

¶ 149.

¶ 61 The trial court found that Brent’s imputed monthly gross income was $14,529. On appeal,

Brent argues that the basis of the trial court’s imputed gross income was unknown and therefore

its finding of net income was erroneous. Kristi agrees that the trial court’s gross income was not

supported by the evidence and now argues that Brent’s net income should have been set at

$18,721.59, because Brent’s gross monthly income should include the section 179 deductions, or,

in the alternative, Brent’s living expenses. 2 The parties correctly note that the trial court provided

no basis for Brent’s income calculation or discussion as to whether the amount was determined

2 “Ordinarily, when an appellee does not file a cross-appeal, the reviewing court will be confined to the issues presented by the appellant and will not consider issues presented by the appellee, except to the extent that they are related to the appellant’s issues.” People ex rel. Vuagniaux v. City of Edwardsville,

(1996). While there is no dispute that Kristi failed to file a cross-appeal pursuant to Illinois Supreme Court Rule 303(a)(3) (eff. July 1, 2017), it is equally undisputed that the argument involves the same issue raised by appellant. As such, we will consider Kristi’s argument. 22 pursuant to the business deductions or by Brent’s living expenses. As such, we decline to affirm

the trial court’s finding.

¶ 62 Regarding the business deductions, Brent’s tax forms specifically set forth the amount and

type of depreciation for his businesses. Just as in Burnett, the tax depreciation report revealed the

total depreciation; here the total was $340,653. The report also documented the “Method” used for

depreciation, which included the use of “DB” or “Declining Balance” methods, which are

accelerated depreciation methods. Of the total deductions, over $300,000 used the “Declining

Balance” accelerated depreciation method. There was no finding by the trial court that any of the

businesses’ accelerated depreciation was inappropriate or excessive; nor was any evidence

submitted before the trial court that any administrative proceeding made such finding. As such,

the accelerated depreciation amounts must be excluded from Brent’s income calculation under

section 505.

¶ 63 The remaining nonaccelerated depreciation must also be considered. In this regard,

“[a]ssuming no other aspect of the statute prohibits a particular type of deduction, the trial court

can now review each case and in its discretion determine whether a deducted expense is one which

is ‘ordinary and necessary *** to carry on the trade or business.’ ” Id. ¶ 144. The requirement to

prove the deducted nonaccelerated expense was repayment for debt has been eliminated. Id.

¶ 64 Regarding Brent’s living expenses, we do not find Kristi’s alternative argument persuasive.

Brent testified that his affidavit included his half of the business distributions which included his

mortgage ($656.43), electric bill ($280.89), repairs and maintenance ($125), and license and

stickers ($142.50), which equates to $1204.82 in section 505(a)(3.1)(B) in-kind income. Brent also

testified that the business pays 100% of his cell phone ($36.17), his gas ($246.99), his vehicle

23 ($475.56), and his health insurance ($1618.21), which equates to an additional $2376.93 in section

505(a)(3.1)(B) in-kind income for a total of $3581.75.

¶ 65 Brent’s testimony was consistent with his affidavit that revealed $2613.87 in business

distribution and draws, and $1618.21 for his health insurance which equated to $4232.08, an

amount slightly higher than his testimony, that was added to his $3117.50 in regular earnings and

$135.42 in rental income to determine his gross monthly income of $7485.

¶ 66 The remaining “expenses” claimed by Kristi consist of Brent’s vacation, his wife’s medical

bills, his wife’s personal expenses for clothing and grooming, the money used to purchase Kristi’s

stock, and the mortgage, property tax, and insurance related to the 113 acres. Contrary to Kristi’s

argument, the record reveals no testimony, or evidence, that any of the Britton businesses paid any

portion of Brent’s vacation, his wife’s medical bills, his wife’s personal expenses, or purchased

Kristi’s stock. As such, Brent’s spending habits are irrelevant and of no merit. Liszka,

.

¶ 67 Only Kristi’s claim regarding the monthly expenses associated with the 113 acres has merit

because this would also be section 505(a)(3.1)(B) in-kind income. We note, however, that Kristi’s

closing argument requested the trial court impute $257 to Brent’s monthly gross income, stating

his use of the 23 acres accounted for 20% of the $1285 monthly payment. On appeal, Kristi now

contends that the entire $1285 monthly payment should be imputed to Brent. “A party cannot invite

an error by the trial court and then use it as a basis for appeal.” Direct Auto Insurance Co.,

.

¶ 68 Here, it appears the trial court may have been persuaded by Kristi’s erroneous arguments

related to accelerated depreciation and Brent’s spending habits. As such we find the trial court’s

determination that Brent’s gross monthly income was $14,529 was in error and vacate the finding.

24 On remand, the trial court must determine which business deductions were accelerated, remove

them from consideration, and then determine from the nonaccelerated depreciation which amounts

were reasonable and necessary to carry on the business. Any amount the trial court finds does not

meet the reasonableness and necessary standard may be imputed to Brent’s income, at the court’s

discretion. We also leave it to the trial court’s discretion to determine whether it wishes to impute

the $257 related to the 113 acres pursuant to section 505(a)(3.1)(B) to Brent’s gross monthly

income of $7485.

¶ 69 Kristi’s Income

¶ 70 Brent argues that the trial court’s finding that Kristi’s income should not include the money

received from her sale of Britton stock after finding this case was “more in the nature of shares of

stock capable of being sold (In re Marriage of Marsh,

), rather than

unvested stock options (In re Marriage of Colangelo,

(2005)).” Brent

contends that the trial court’s interpretation of Marsh was in error because, in that case, there was

no “evidence or testimony that the sale yielded no profit or was otherwise sold at a loss.”

¶ 71 While Brent contends the trial court’s decision was in error, Brent has not provided an

adequate record for this court to address the issue. The trial court’s June 16, 2020, docket entry

reveals that arguments as to whether Kristi’s income should include money from the sale of the

stock were presented to the trial court on that date; however, no report of proceedings regarding

this issue was included in the record on appeal. The appellant has the duty of presenting a complete

record on appeal. In re Marriage of Naylor,

(1991). The record on appeal

shall consist of “the judgment appealed from, the notice of appeal, *** the entire original common

law record,” and “any report of proceedings.” Ill. S. Ct. R. 321 (eff. Feb. 1, 1994). “Where a party

desires to have a judgment reviewed it is incumbent upon him to present a record of the

25 proceedings and judgments sufficient to show the errors of which he complains.” Higgins v.

Columbia Tool Steel Co.,

(1979).

¶ 72 Here, Brent contends that the agreement to sell the stock was “tendered to the Court and

entered into evidence” but provides no cite to the record as to the location of this document

contained within the 809 pages of exhibits or 482 pages comprising the common law record. Brent

further contends that there “was no testimony as to the amount considered as the basis for the value

of the stock and what she sold it for,” but the record fails to include the record of proceedings from

the date of the argument or whether the trial court provided a rationale as to why this information

may not have been necessary. In the absence of a sufficient record, “it will be presumed that the

order entered by the trial court was in conformity with law and had a sufficient factual basis.”

Foutch v. O’Bryant,

(1984). “Any doubts which may arise from the

incompleteness of the record will be resolved against the appellant.”

As such we affirm the trial

court’s ruling.

¶ 73 Child Support and Arrearage

¶ 74 Since the trial court’s determination of Brent’s gross monthly incomes was in error, we

vacate its determinations for child support and arrearage. We remand the case back to the trial

court to recalculate the appropriate child support and arrearage after determining the proper

amount to impute to Brent’s monthly gross income based with the nonaccelerated business

deductions and whether it wishes to impute the $257 related to the 113 acres as in-kind income.

¶ 75 III. CONCLUSION

¶ 76 For the reasons stated herein, we vacate the trial court’s orders requiring Brent to reimburse

Kristi for her supplemental health insurance back to January 2018 pursuant to a rule to show cause

hearing, affirm the trial court’s order modifying the obligation to provide the children’s health

26 insurance, vacate the trial court’s order making the educational expenses retroactive to a date prior

to the filing of the petition, affirm the trial court’s decision to impute income to Brent, vacate the

trial court’s calculation of Brent’s gross and net income, affirm the trial court’s finding that Kristi’s

sale of stock should not be included in her net income, vacate the trial court’s orders regarding the

amount of child support and arrearage due in this case, and remand the case to address the issues

set forth herein in a manner consistent with this decision.

¶ 77 Affirmed in part and vacated in part; cause remanded.

27 ______________________________________________________________________________

No. 5-21-0065

______________________________________________________________________________

Rule 23 Order Filed: January 27, 2022 Motion to Publish Granted: February 24, 2022 Opinion Filed: February 24, 2022 ______________________________________________________________________________

Cite as: In re MARRIAGE OF BRITTON,

______________________________________________________________________________

Decision Under Review: Appeal from the Circuit Court of Williamson County, No. 12-D-183; the Hon. Carey C. Gill, presiding. ______________________________________________________________________________

Attorneys David M. Gotzh, Law Office of David Gotzh, 444 N. For Michigan Ave., Suite 1200, Chicago, IL 60610 Appellants: ______________________________________________________________________________

Attorney Gerald S. Reed, Reed, Heller & Cannell, 1100 Walnut, P.O. For Box 727, Murphysboro, IL 62966 Appellees: ______________________________________________________________________________

28