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07/15/96 DOLIA VILLANUEVA v. SEAN PATRICK O'GARA

July 15, 1996

DOLIA VILLANUEVA, N/K/A DOLIA GARCIA PETITIONER-APPELLEE,
v.
SEAN PATRICK O'GARA, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 88--F--0668. Honorable James C. Hallock, Judge, Presiding.

Released for Publication August 15, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The petitioner, Dolia Villanueva, brought an action to secure a one-time support payment on behalf of the parties' daughter from the respondent, Sean Patrick O'Gara, after he received a $251,655.36 lump sum settlement of his claim for personal injuries. The trial court determined that the respondent's settlement constituted income under the guidelines for child support (see 750 ILCS 5/505 (West 1994)) and ordered that 20%, or $50,331.07, of the settlement be deposited in trust for the benefit of the respondent's child. The respondent timely appeals. We reverse and remand.

The material facts presented are undisputed. The petitioner and respondent were never married, but on April 27, 1987, the petitioner gave birth to a girl, named Amanda. On May 11, 1989, the respondent was adjudged to be the father of that child in a paternity action and ordered to pay $50 per week to the petitioner for the support of the child.

The respondent injured his hand while at work approximately six years ago, from the date of this appeal, and subsequently considered bringing a product liability suit against an unidentified defendant. At the time of the injury, the respondent made $7.65 an hour as a foreman trainee. The respondent expected to make $12 an hour after his four-month training period expired. After his injury, the respondent returned to his same employer as a warehouse manager, making $10 per hour. However, his former employer allegedly harassed the respondent over the possible product liability suit, and the respondent quit. After he quit, the respondent drew workers' compensation benefits and continued to pay $50 a week to the petitioner. The respondent and the unidentified defendant in the respondent's potential product liability suit agreed to settle the respondent's potential claims for a lump sum payment of $385,000. After attorney fees and costs of his suit, the respondent received net proceeds of $251,665.36.

On June 3, 1994, the petitioner filed a petition for increase in support, seeking a one-time lump sum payment of 20% of the respondent's net proceeds from the settlement. After a bench trial, the court agreed with the petitioner that the respondent's $251,665.36 proceeds from the settlement constituted "income" under the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101 et seq. (West 1994)) and ordered that 20% of that amount, or $50,331.07, be deposited in trust. The trial court did not enter findings of fact as to an apportionment of damages between all the elements of damages recoverable in personal injury torts.

The respondent argues that the trial court erroneously found that his entire personal injury settlement constituted "income" for purposes of child support. We agree and note that this is an issue of first impression in this State.

The amount of child support being paid may be modified "upon a showing of a substantial change in circumstances." 750 ILCS 5/510(a) (West 1994). One such change may be increased net income of the person providing support. See In re Marriage of Riegel, 242 Ill. App. 3d 496, 498-99, 183 Ill. Dec. 168, 611 N.E.2d 21 (1993). The modification of child support lies within the discretion of the trial court. In re Marriage of Bussey, 108 Ill. 2d 286, 296, 91 Ill. Dec. 594, 483 N.E.2d 1229 (1985). On review, a court will not disturb a trial court's modification of child support absent an abuse of that discretion. Bussey, 108 Ill. 2d at 296. Further, a trial court's findings regarding net income are also within the trial court's discretion and will not be reversed absent an abuse of discretion. Blisset v. Blisset, 123 Ill. 2d 161, 167, 121 Ill. Dec. 931, 526 N.E.2d 125 (1988); In re Marriage of Scafuri, 203 Ill. App. 3d 385, 390, 149 Ill. Dec. 124, 561 N.E.2d 402 (1990).

At the outset, we note that the Illinois Parentage Act of 1984 (Parentage Act) provides that the determination of any child support award for a child born to unmarried couples is governed by the guidelines set forth in the Act. 750 ILCS 45/14(a)(1) (West 1994); 750 ILCS 5/505 (West 1994). This court previously ascertained that "the parent of a child born out of wedlock whose paternity is established is liable for the child's support, maintenance, education, and welfare to the same extent and in the same manner as the parent of a child born in lawful wedlock." Rawles v. Hartman, 172 Ill. App. 3d 931, 934, 123 Ill. Dec. 217, 527 N.E.2d 680 (1988).

The Act defines "net income," for purposes of determining child support, as the total of all income from all sources, minus a list of specified deductions, none of which is applicable in the case at bar. 750 ILCS 5/505(a)(3) (West 1994); In re Marriage of Pylawka, 277 Ill. App. 3d 728, 732, 214 Ill. Dec. 651, 661 N.E.2d 505 (1996). We recognize that the Act and the Parentage Act define the term "income" for purposes of "withholding of income to secure payment of support." 750 ILCS 5/706.1(A)(4) (West 1994); 750 ILCS 45/20(A)(4) (West 1994). However, we determine that said definition does not control the case at bar. In re Marriage of Dodds, 222 Ill. App. 3d 99, 101-02, 164 Ill. Dec. 692, 583 N.E.2d 608 (1991).

Consequently, "income," as contemplated by section 505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West 1994)), is undefined in the statute. Thus, we must turn to the legislative intent. First of America Bank v. Netsch, 166 Ill. 2d 165, 181, 209 Ill. Dec. 657, 651 N.E.2d 1105 (1995); Moon v. Smith, 276 Ill. App. 3d 958, 962, 658 N.E.2d 856, 213 Ill. Dec. 107 (1995). The best indicator of legislative intent is the language of the statute. First of America Bank, 166 Ill. 2d at 181; Moon, 276 Ill. App. 3d at 962. If the statutory language is clear, the court must give it effect without resorting to other aids of construction. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479, 203 Ill. Dec. 463, 639 N.E.2d 1282 (1994); Moon, 276 Ill. App. 3d at 962.

We determine that the clear terms of the Act (750 ILCS 5/101 et seq. (West 1994)) do not consider entire settlements from personal injury claims as included in the definition of "net income" for purposes of determining the amount of child support. 750 ILCS 5/505(a)(3) (West 1994). "Net income," for purposes of determining the amount of child support, is defined as "the total of all income from all sources." (Emphasis added.) 750 ILCS 5/505(a)(3) (West 1994). "Income" represents a "gain or profit" (42 C.J.S. Income (1944)) and is "ordinarily understood to be a return on the investment of labor or capital, thereby increasing the wealth of the recipient" ( Reed v. Health & Human Services, 774 F.2d 1270, 1274 (4th Cir. 1985), rev'd on other grounds sub nom. Lukhard v. Reed, 481 U.S. 368, 95 L. Ed. 2d 328, 107 S. Ct. 1807 (1987); see also Eisner v. Macomber, 252 U.S. 189, 207, 64 L. Ed. 521, 529, 40 S. Ct. 189, 193 (1920); Black's Law Dictionary 763 (6th ed. 1990)). By contrast, it is clear that personal injury awards serve to make an injured party whole, in effect restoring one to the status quo before the injury was suffered. Northern Illinois Gas Co. v. Vincent DiVito Construction, 214 Ill. App. 3d 203, 214-15, 157 Ill. Dec. 825, 573 N.E.2d 243 (1991); Reed, 774 F.2d at 1274. Compensatory damages are not granted to enable an injured party to make a profit or a windfall on the transaction. Northern Illinois Gas Co., 214 Ill. App. 3d at 214-15; Santiemmo v. Days Transfer, Inc., 9 Ill. App. 2d 487, 502, 133 N.E.2d 539 (1956). Thus, a distinction exists between "income" and recoupment of capital. See Posey v. Tate, 275 Ill. App. 3d 822, 826-27, 212 Ill. Dec. 69, ...


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