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02/23/95 MARRIAGE CYNTHIA HASSIEPEN F/K/A CYNTHIA

February 23, 1995

IN RE: THE MARRIAGE OF CYNTHIA HASSIEPEN, F/K/A CYNTHIA VON BEHREN, PETITIONER-APPELLANT, AND KEVIN M. VON BEHREN, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Sangamon County. No. 82D682. Honorable Theodis P. Lewis, Judge Presiding.

As Corrected March 31, 1995.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J. Knecht, P.j., and Green, J., concur.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In January 1991, Cynthia Hassiepen, petitioner, filed a petition to increase child support payments she received from Kevin Von Behren, respondent, for support of their three children. In May 1991, Kevin filed a petition to decrease those payments. In June and July 1993, the trial court held hearings on these motions and ultimately increased Kevin's child support payments. Cynthia also filed a petition requesting the court order Kevin to pay her attorney fees. After a hearing in January 1994 on this motion, the court awarded Cynthia a small portion of the requested amount.

Cynthia appeals, arguing that the trial court erred by (1) increasing Kevin's child support obligation to only $1,500 per month, and (2) awarding her only a small portion of her attorney fees. We agree with both of these contentions and therefore reverse and remand both issues to the trial court.

I. BACKGROUND

In October 1984, Cynthia and Kevin were granted a dissolution of their seven-year marriage. During their marriage, they had three children, Kevin (born December 1978), Jacob (born August 1980), and Joshua (born October 1981). Cynthia was awarded custody of the children, and Kevin was ordered to pay $400 per month in child support. By agreement of the parties, the amount of child support was increased to $500 per month in June 1987.

In 1988, Cynthia married John Hassiepen, an attorney with Caterpillar. Cynthia and John live in Peoria with Cynthia's three children and their son Andrew, born in early 1991. In 1989, Kevin married Brenda, and they live in Springfield and have one child together.

The voluminous record demonstrates that relations between Cynthia and Kevin after the dissolution of their marriage have been strained. In January 1991, Cynthia filed a petition to increase the child support payments to $950. At this point, Cynthia's husband, John, was acting as her attorney. Kevin responded by filing a petition in May 1991 to decrease the child support payments. In June 1991, Cynthia amended her petition seeking an increase in child support, asking that Kevin be required to pay $1,475 per month in child support. In July 1991, Kevin filed a petition requesting the trial court to review the custodial arrangement and change custody by appointing him custodial parent of their three children.

In May 1993, the trial court held several hearings regarding custody of the children and decided not to change the custodial parent; instead, the court altered the visitation schedule. Then, in June and July 1993, the trial court held several additional hearings regarding child support payments. The following is a summary of the evidence presented at those hearings.

In 1985, Kevin began living with Brenda. At that time, Kevin ran a bait shop and archery business. In September 1985, Kevin was discharged in bankruptcy, but continued to attempt to run these businesses. Because these businesses continued to cause financial difficulties, he and Brenda decided to start an electrical contracting business, called Von Behren Electric. Kevin started this business with only an old pickup truck and a drill which his father had given him. Brenda's credit cards were used to purchase other business supplies and materials. Brenda handled the general office work, including taking phone calls, picking up mail, preparing bills, banking, and preparing bids. Kevin performed the electrical contracting work. When they began the business, Brenda was also a court reporter, and she continued to receive income from this job for about two years thereafter.

After Kevin and Brenda began living together, they opened a joint checking account, which they used for all personal and business transactions. They did not pay themselves wages or a salary, but instead withdrew money from the account for both personal or business reasons. They put any money received into this joint account. At the time of the 1993 hearings, they continued this practice for handling money.

Von Behren Electric proved to be quite prosperous. In November 1991, Kevin and Brenda incorporated Von Behren Electric upon the advice of their accountant, Carol Nelson. Nelson kept track of their expenses, separating all their transactions into personal and business categories. She also prepared a yearly profit and loss statement for the business. After incorporating, Kevin and Brenda paid themselves an annual salary of $12,000 each. However, if they needed any additional money for personal expenses, they would merely withdraw this from the joint checking account.

The 1992 profit and loss statement for Von Behren Electric showed a net income of approximately $134,000 made on gross revenues of slightly over $500,000. In 1985, before Kevin was released in bankruptcy, he acquired a piece of property which he later commercially developed after the electrical contracting business began to prosper. The 1992 profit and loss statement for this property, under the name of Von Behren Properties, showed an additional net income of over $53,000. Kevin and Brenda's joint 1992 Federal tax return showed an income of about $23,000 and rental income of around $43,000, for a total of $66,000. However, at the time of the hearings, Kevin and Brenda had not yet filed their 1992 tax return and had only completed it a few days earlier. Furthermore, Kevin had not filed a tax return for years 1989, 1990, and 1991 until May 1993, and owed taxes and penalties for those years.

The evidence revealed that Cynthia was a homemaker, having last worked outside the home in 1991. Since 1991, when Andrew was born, Cynthia has stayed home to raise her four children.

In August 1993, after the hearings regarding child support, Cynthia filed a second-amended petition to increase the amount of child support based upon the evidence presented at trial. She sought to have the court assess child support in the statutory amount of 32% of Kevin's net income (see 750 ILCS 5/505(a)(1) (West 1992)). Additionally, in June 1993, the trial court filed a judgment against Cynthia and her husband, John, finding them in contempt of court for ...


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