APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
543 N.E.2d 277, 187 Ill. App. 3d 445, 135 Ill. Dec. 42 1989.IL.1245
Appeal from the Circuit Court of Cook County; the Hon. John P. Ryan, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
This is an appeal from an order of the trial court limiting the amount of child support to the amount granted by the Illinois Department of Public Aid , denying retroactive support and entering a withholding order applicable only to defendant's current employer. We reverse and remand for further proceedings.
On December 29, 1986, Renee Parks, a public aid recipient, filed a complaint alleging that defendant, John Romans, was the father of her minor child, Corey L. Parks. A paternity judgment was entered against Romans on February 24, 1987.
At a support hearing held on July 24, 1987, Romans testified that he was regularly employed, that his semimonthly net income was $644.86, and that he contributed to the support of a 35-year-old sister in Jamaica. His attorney later informed the court that he was also providing some support for another child attending college in New York.
The court took judicial notice that the assistance grant for a parent and two children is $341 per month, with $76.50 per month attributable to each child. The court held that the only consideration in the case was the amount of reimbursement due IDPA and entered an order for current support of $76.50 per month. Over the objections of plaintiff's counsel, the court ordered that payment would not begin until September 1, 1987. The trial court also entered a withholding order showing defendant's current employer as the payor over plaintiff's objection that the order should be made applicable to any payor. The court further held that the State's Attorney could not represent both the custodial parent and the IDPA in the proceedings and that the withholding statute, as written, was unenforceable.
On appeal plaintiff contends that the trial court erred in limiting the amount of support to the amount of the assistance grant as defendant's earnings mandated a higher award under the statutory guidelines. Plaintiff maintains that the minor child is entitled to 20% of defendant's net income under the statute ($128.97 semimonthly) and that the court impermissibly awarded a lesser amount without justifying doing so with written findings. Defendant contends that the child's public aid status and the amount of public aid received were relevant factors to be considered by the trial court under section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)), and therefore, the trial court's support order in the amount of the public aid award was not an abuse of discretion.
"n determining the amount of any child support award, the court shall use the guidelines and standards set forth in subsection (a) of Section 505 of the Illinois Marriage and Dissolution of Marriage Act . . .." Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).
Section 505(a) of the Dissolution Act sets the guidelines for a single child at 20% of the supporting parent's net income as determined under subsection 505(a)(3). Subsection 505(a)(2) provides that the 20% guideline shall be applied unless there is evidence to support deviation, lists some relevant factors and requires the court to make express findings to justify a lower award. Section 505(a) has been held to create a rebuttable presumption that a specified percentage of a noncustodial parent's income constitutes an appropriate child support award. (See In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1041-42, 492 N.E.2d 622.) Moreover, consideration of the statutory provisions of section 505(a) is mandatory rather than directory. (In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 416, 464 N.E.2d 795.) A trial court deviating from the guidelines is required to consider evidence on such factors as the financial resources and needs of the child and the custodial and non-custodial parents, the standard of living the child would have enjoyed if the household had been one, and the physical and emotional condition of the child and his educational needs. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).
The trial court here did not hear evidence on the above statutory factors. The court instead concluded that the only relevant issue was the amount of reimbursement due IDPA and held that the amount mandated by the guidelines could be awarded only if safeguards were established to prevent plaintiff and her other child from benefitting from the support money paid on behalf of the minor in issue here. While recognizing that the guidelines are mandatory, the court declined to follow them in the apparent belief that pursuant to the Deficit Reduction Act of 1984, Public Law No. 98 -- 369 (98 Stat. 494) (codified as amended in 42 U.S.C. § 602 (Supp. IV 1986)) to do so would require defendant to pay an amount that would result in the family's entire assistance grant being cancelled.
This concern is unwarranted. Although under the Deficit Reduction Act plaintiff's monthly grant would be reduced as a result of the support from the non-custodial father, the effect here would not cause plaintiff's grant to be cancelled. The first $50 per month of child support collected by the State from the non-custodial parent is "passed through" to the family receiving assistance. Plaintiff here, therefore, would receive her monthly assistance grant of $341 for herself and two children plus the first $50 of the child support payment assigned by plaintiff to the State. Assuming the minor's expenses were, in fact, $76.50 per month, the minor child would be "contributing" one-third of the $391 total grant or $131 to the household, $54.50 over the amount allocated to the minor by Aid to Families with Dependent Children . This result is more consistent with the purpose of the AFDC program, which ...