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06/30/95 MARRIAGE ELIZABETH BENISH

June 30, 1995

IN RE THE MARRIAGE OF ELIZABETH BENISH, PETITIONER-APPELLANT, AND LEE BENISH, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County. Honorable James G. Donegan, Judge Presiding.

Presiding Justice Greiman delivered the opinion of the court: Tully and Cerda, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Petitioner Elizabeth Benish (Elizabeth) appeals an order entered in post-judgment dissolution proceedings allowing respondent Lee Benish (Lee) to subtract monthly installments paid to satisfy credit card debt from his gross income in determining his net income for child support purposes.

The sole issue raised on appeal is whether the trial court erred in allowing Lee this deduction.

For the reasons which follow, we reverse the trial court's order and remand with instructions to disallow the deduction and determine a child support award consistent with this opinion.

After 12 years of marriage, Elizabeth and Lee Benish obtained a judgment for dissolution of marriage (Judgment) on August 21, 1987. The Judgment incorporated the parties' marital settlement agreement (Agreement) which provided Elizabeth and Lee joint custody of their two minor children. The Agreement further provided that Lee pay $1050 per month in child support, an amount based on his 1987 income of $42,000. Additionally, Lee was liable for the payment and satisfaction of the second mortgage on the marital residence, as well as certain credit card debts which were incurred during the marriage. The Agreement specified that if Elizabeth was required to satisfy any of these obligations, Lee would reimburse her for such sums as additional maintenance.

On August 21, 1991, Elizabeth filed a Petition for Rule to Show Cause, alleging nonpayment of child support, failure to retire the second mortgage on the marital residence, failure to make a lump sum payment of $40,000, and failure to deliver a quit claim deed on the marital residence. Lee, claiming a reduction in income, filed a Petition for Reduction of Child Support on September 12, 1991.

A hearing was conducted on June 10, 1992, during which the trial court found Lee to have willfully failed to pay (1) the second mortgage on the marital residence; (2) a lump sum payment of $40,000 owed Elizabeth; and (3) full child support for 1991 and 1992. To purge himself from contempt, Lee filed his Plan of Purge on July 1, 1992. Lee's Petition to Modify Child Support remained pending at this time.

On August 21, 1992, the trial court accepted Lee's Plan of Purge, ordering Lee to pay Elizabeth $1,000 per month for child support. Lee's Petition to Modify Child Support again remained pending.

Lee filed bankruptcy on February 23, 1993, reaffirming the second mortgage on the marital home and the consolidated credit card debt. The parties agreed that the obligation to satisfy this debt, as far as Elizabeth was concerned, was in the nature of support and maintenance, and thus not dischargeable under section 523 of the Bankruptcy Act. 11 U.S.C. at 523 (a)(1)(A) (1988).

On September 28, 1993, the trial court ordered Lee to pay Elizabeth the sum of $26,231, the balance of the second mortgage and the consolidated credit card debt, in monthly installments of $500. The trial court continued Lee's petition to reduce child support to November 30, 1993.

At the November hearing, Lee argued that he should be allowed to deduct from his gross income the credit card obligation owed pursuant to the parties' Agreement. Elizabeth argued that section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act did not provide for such a deduction. (750 ILCS 5/505(a)(3) (West 1992).) Elizabeth argued further that modification downward was unwarranted since Lee's current gross income was $77,000 annually, $35,000 more than the $42,000 on which the initial award of child support was based. The trial court entered an order allowing the deduction on December 1, 1993, from which Elizabeth appeals.

Section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) controls the determination of a parent's child support obligation, establishing statutory guidelines for a parent's responsibility unless the trial court finds reason to deviate from the guidelines. (750 ILCS 5/505(a) (West 1992); In re Marriage of Hassiepen (1995), 269 Ill. App. 3d 559, 646 N.E.2d 1348, 207 Ill. Dec. 261.) However, modification of a child support award must be based upon a showing of a substantial change in circumstances. (750 ILCS 5/510(a) (West 1992).) The determination of whether to modify a support obligation lies ...


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