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10/06/95 DELORES POSEY v. LEONARD TATE

October 6, 1995

DELORES POSEY, PLAINTIFF-APPELLANT,
v.
LEONARD TATE, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE R. MORGAN HAMILTON, JUDGE PRESIDING.

Released for Publication November 3, 1995.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

On October 19, 1993, plaintiff Delores Posey filed a petition for modification of child support against defendant Leonard Tate in the circuit court of Cook County, pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510 (West 1992)). In her petition, plaintiff sought to increase the previously ordered monthly child support award of $330, in accordance with the guidelines set forth in section 505(a) of the Act. (750 ILCS 5/505(a) (West 1992).) On May 24, 1994, the trial court entered an order wherein it set the monthly support award at $683.06. Plaintiff subsequently filed a petition to reconsider, arguing that the trial court improperly permitted defendant to reduce his net income by the amount of his tax-sheltered earnings shown on his 1993 W-2 form, which were presumably for retirement, and by the amount of depreciation expense shown on his 1993 Federal tax return, which related to four real estate investment properties he owned. On August 29, 1994, the trial court denied plaintiff's petition to reconsider. Also, in that order, with regard to plaintiff's attorney fees of $4,962, the trial court directed defendant to pay 40% of that amount. Plaintiff now appeals. The pertinent facts are as follows.

In December 1982, the parties' only child, Leonard, was born. In February 1987, the trial court entered an order requiring defendant to pay plaintiff $330 per month as child support for Leonard. Plaintiff's subsequently filed petition to modify the child support award was based on her having learned that defendant had a substantial increase in income since the time that the original order was entered. Plaintiff also alleged a substantial increase in the expenses connected with the support of their minor child. Plaintiff submitted an income and expense affidavit, reflecting net monthly income of $2,650.29, which included the $330 monthly child support payment from defendant. The affidavit showed total monthly living expenses of $3,301.88 and credit card obligations of $75, leaving her with a monthly income deficit of $726.59. She had no savings.

As the May 24, 1994 order indicates, the trial court determined, inter alia, that defendant's 1993 net income was $40,983.83. The court then took 20% of that figure, pursuant to section 505(a) of the Act, to arrive at an annual child support award of $8,196.76 or a monthly obligation of $683.06. In calculating defendant's net income, the court permitted defendant to deduct from his gross income depreciation expense in the amount of $26,437, relating to four rental properties, and deferred compensation in the amount of $3,318.12. The court also ordered that the child support award be retroactive to October 19, 1993, the date plaintiff filed her petition for modification. It directed defendant to pay plaintiff the sum of $2,608.13 for this period, after giving him credit for the $330 per month he had already paid her. Defendant agreed to pay this amount in one lump sum on or before June 1, 1994. In her motion for reconsideration, plaintiff argued that the trial court erred in computing defendant's net income to be only $40,983.83. She referred to defendant's 1993 income tax return and W-2 form, which she alleged established a net income after taxes of $46,058, which included tax-sheltered earnings of $3,218. (We note that defendant's W-2 form indicates this amount to be $3,318.) Plaintiff further argued that depreciation expense in the amount of $26,437 should be added back in to arrive at a net annual income of $72,495. Plaintiff asserted that 20% of that figure would compute to an annual child support award of $14,499, as opposed to the $8,196.76 established by the court. In its order denying plaintiff's petition to reconsider, the trial court also ruled on plaintiff's counsel's fee petition, ordering defendant to pay 40% of the fee petition as modified by the court. Defendant was ordered to pay $992.49 to plaintiff's counsel, which was based on 33.08 hours at $150 per hour.

On appeal, plaintiff contends that the trial court erred when it allowed defendant to deduct deferred compensation and depreciationexpense from his gross income, which thereby served to diminish his net income, the amount upon which his monthly child support obligation was calculated. Plaintiff also contends that the trial court abused its discretion when it ordered her to pay 60% of her attorney fees. In the alternative, she contends that the court miscalculated the dollar amount of the portion of her attorney fees which defendant was obligated to pay pursuant to the order.

Under sections 505 and 510 of the Act, the trial court has discretion to set and modify child support where it is appropriate. (750 ILCS 5/505, 510 (West 1992).) A reviewing court will not disturb a child support award or modification unless the trial court is found to have abused its discretion. ( In re Marriage of Carpel (1992), 232 Ill. App. 3d 806, 597 N.E.2d 847, 173 Ill. Dec. 873.) An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Partney (1991), 212 Ill. App. 3d 586, 571 N.E.2d 266, 156 Ill. Dec. 679.

Section 505(a) of the Act requires the trial court to set the minimum amount of child support at 20% of the noncustodial parent's net income, unless the trial court finds a reason to deviate from this percentage. (750 ILCS 5/505(a) (West 1992).) Section 505(a)(3) defines "net income" as:

"The total of all income from all sources, minus the following deductions:

(a) Federal income tax (properly calculated withholding or estimated payments);

(b) State income tax (properly calculated withholding or estimated payments);

(c) Social Security (FICA payments);

(d) Mandatory retirement contributions required by law or as a ...


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