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06/21/94 MARRIAGE BRENDA BURRIS N/K/A BRENDA WILL

June 21, 1994

IN RE MARRIAGE OF, BRENDA BURRIS, N/K/A BRENDA WILL, PETITIONER-APPELLEE, AND RANDY BURRIS, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Perry County. No. 89-D-37. Honorable Robert N. Gandy, Judge Presiding.

Chapman, Rarick, Welch

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

This appeal involves the determination of child support obligations on behalf of Brenda and Randy Burris for the periods of time since their divorce during which each of the parties has had custody of their minor child, Robyn. We affirm.

On November 21, 1989, Brenda was awarded custody of Robyn, and Randy was ordered to pay Brenda rehabilitative maintenance for 30 months and child support of $550 per month. Brenda maintained physical custody of Robyn until about March 1, 1992, when Robyn began residing with her maternal grandparents, Lacey and Norma Dunn. On April 16, 1992, the judgment of dissolution was modified so that Randy's child support payments would thereafter be paid to Norma Dunn.

On or about February 7, 1993, Robyn moved in with her father, who continued to pay child support to Norma Dunn. Dunn returned the money to Randy each month. Based upon the change in circumstances of the parties, Randy filed a petition to modify which prayed for custody of Robyn and child support from Brenda. On June 4, 1993, before the petition to modify was heard, Robyn returned to live with her mother.

On June 3, 1993, Randy's union, the United Mine Workers of America, went on strike. Randy began receiving strike benefits of $150 per week. At the hearing on July 20, 1993, Randy testified that after 60 days into the strike he expected to receive benefits of $175 per week and after 120 days into the strike, $200 per week. On June 14, 1993, he filed a second count to his petition to modify and requested a decrease in his original child support obligation of $550 per month. In response to Randy's petition to modify, Brenda filed a petition to modify, which requested child support payments to be sent to her instead of Norma Dunn. Following a hearing on the petitions, the court ordered Brenda to pay Randy $25 per month as child support for the four-month period that Robyn resided with him. The court further found that Randy's gross income for 1992 was $55,520.27, and that he currently receives strike benefits of $150 per week. As the court found that there was no evidence as to when the strike would be resolved, it reduced Randy's child support to $150 per month. The court further ordered that when Randy's strike benefits increased to $200 per week, his support obligation would automatically increase to 20% of $200 per week.

The first issue on appeal is whether the trial court abused its discretion in determining that Brenda owed only $25-per-month child support for the four months that Randy had custody of Robyn. Randy argues that because Brenda was earning approximately $12,000 annually during the four months he had custody, the $25 child support award was grossly inadequate. Section 505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) sets the minimum statutory amount of support for one child at 20% of the supporting party's net income. (750 ILCS 5/505(a)(1) (West 1992).) Only if the court imposes more or less than the minimum standard required under section 505(a)(1) is it required to consider the relevant factors of section 505(a)(2). In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093, 527 N.E.2d 1351, 1363, 123 Ill. Dec. 576.

The relevant factors to be considered under section 505(a)(2) are the child's financial resources, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the parents remained married, the physical, emotional, and educational needs of the child, and the financial resources and needs of the noncustodial parent. 750 ILCS 5/505(a)(2); In re Marriage of Baptist (1992), 232 Ill. App. 3d 906, 917, 598 N.E.2d 278, 285, 174 Ill. Dec. 81.

Robyn attends public school. During the four-month period in which Randy had custody of Robyn, he earned an annual gross wage of $55,520. Brenda earned a gross income of approximately $15,000 a year. Brenda testified that while Robyn was living with her father, she stayed at Brenda's house on most weekends. Randy agreed that Robyn spent perhaps three weekends at his home in Cape Girardeau, Missouri, during this four months. Brenda testified that with the exception of two weekends when Robyn stayed with her, Brenda would drive from her job in Carbondale, Illinois, to Cape Girardeau, Missouri, to get Robyn, then on to Brenda's home in Pinckneyville, Illinois. Randy did not reimburse Brenda for mileage for these trips. During this four-month period Brenda continued to pay for Robyn's clothing and personal items and purchased Robyn's prom dress.

Modification of child support payments lies within the sound discretion of the trial court, and its decision will not be disturbed on appeal absent an abuse of discretion. ( People ex rel. Hines v. Hines (1992), 236 Ill. App. 3d 739, 744, 602 N.E.2d 902, 906, 177 Ill. Dec. 7; In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 599, 493 N.E.2d 666, 671, 97 Ill. Dec. 859.) Section 505(a)(2) of the Act provides that the court may deviate from the established child support guidelines only after considering all of the relevant factors set forth in the statute. The record indicates that the trial court complied with this mandate. The court heard evidenceas to Robyn's needs and the parties' income and needs. It is apparant from the court's decision that the court considered the disparity in the parties' incomes and the facts that Robyn continued to spend most weekends with her mother and that Brenda continued to pay for Robyn's clothing, doctor's expenses, and personal needs. We cannot find that the trial court's award of $25-per-month child support was an abuse of discretion.

Randy next argues that the trial court abused its discretion by failing to make express findings as to its reasons for setting Brenda's child support obligation below the minimum statutory guideline. Section 505(a)(2) of the Act states:

"If the court deviates from the guidelines, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, or any other relevant factor, it shall make express findings as to its reason for doing so. * * *" (750 ILCS 5/505(a)(2) (West 1992).)

The requirement that the court make "express findings" does not mandate that the findings be written or incorporated into the court's order. In re Marriage of Kern (1993), 245 Ill. App. 3d 575, 577, 615 N.E.2d 402, 404, 185 Ill. Dec. 843; In re Marriage of ...


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