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August 16, 1996


Appeal from Circuit Court of Brown County. No. 89D39. Honorable M. Carol Pope, Judge Presiding.

Released for Publication September 17, 1996.

Honorable James A. Knecht, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Respondent Sherry Barnard appeals from an order of the circuit court of Brown County granting petitioner Jonathan Barnard's petition to reduce child support, arguing the trial court erred in temporarily reducing Jonathan's child support obligations subject to accrual (134 Ill. 2d R. 296(f)). We affirm.

The parties do not disagree as to the relevant facts. We therefore adopt the findings of fact made by the trial court. Jonathan is an attorney, formerly with a law firm in Quincy, while Sherry works part-time with the Quincy school district. During the marriage, the parties had two children, who were 13 and 16 years of age at the time of the proceedings below. The parties were divorced in October 1987. Jonathan remarried in May 1989.

In July 1989, the parties entered into a comprehensive settlement agreement. By the terms of this agreement, Jonathan agreed to pay $2,500 per month to Sherry for child support and $2,000 per month for maintenance. Maintenance terminated in 1991 when Sherry remarried.

In the summer of 1994, Jonathan sought to renegotiate the settlement agreement so a portion of his support payments would go into a college fund for his children. Jonathan stated in his deposition he was concerned about his ability to pay for his children's college expenses, given the then-current terms of the settlement agreement. No agreement on this matter was reached with Sherry. In late 1994, Sherry filed a petition to enforce the settlement agreement. Among the disputed issues were an escalator clause in the original agreement, an allocation date for Sherry's 65% share in Jonathan's retirement plan, and certain unpaid medical reimbursements. The trial court found Jonathan over $30,000 in arrears for child support for the years 1992 thru 1995, the arrearages being due to the escalator clause which had been at issue. The trial court also found Jonathan should have allocated to Sherry the 65% share of his retirement plan in 1990 and ordered Jonathan to take the necessary actions to accomplish the allocation. The parties stipulated Jonathan had, prior to the trial court's ruling on the petition to enforce, reimbursed Sherry $1,700 for medical expenses of the children.

In response to this petition to enforce, Jonathan filed a counterpetition to reduce his child support in October 1994. Jonathan's total income between 1989 and 1994 ranged from $138,000 to $191,000. He sought reduction of his child support for several reasons, including the fact he was currently paying more support than required by statute, he had additional financial obligations as a result of a new child by his current wife, his partnership share in his law firm had substantially declined, and Sherry's income had increased substantially since her remarriage.

Both parties made discovery requests of each other. In his requests, Jonathan sought the joint income tax returns of Sherry and her new husband. Sherry's husband, Ross Centanni, is president and chief executive officer of Gardner Denver Machine, Inc. (Gardner). While Jonathan was a partner at the firm in Quincy, the firm had acquired Gardner as a client. On November 2, 1994, Centanni sent a letter to one of the managing partners at Jonathan's firm terminating Gardner's relationship with the firm. The letter made clear the action was being taken due to Jonathan's discovery requests and specifically mentioned Gardner's "$400,000 annual legal fees" in the process. The letter stated in conclusion, "should this matter correct itself in the future, we may be able to conduct business again."

The partners at Jonathan's firm then called a meeting, at which time Centanni's letter was read. Following a discussion of the letter, Jonathan agreed to dismiss his counterpetition, and the counterpetition was dismissed December 20, 1994. According to Jonathan, he asked the other partners if the firm would be willing to pay him the $6,000 per year he had calculated as the amount his support payments exceeded the statutory guidelines per year. The partnership was not willing to do this. Feeling his access to the courts in future dealings with Sherry would be threatened by Centanni and his relationship with the firm, Jonathan decided in either December 1994 or January 1995 to leave the firm. Jonathan had been chief trial lawyer after a 20-year association with the firm.

Jonathan then set up his own law practice and attempted to bring as many former clients with him as possible. To supplement his income, he accepted part-time work with the Adams County State's Attorney's office, for which he will be paid $30,000 per year. On January 31, 1995, Jonathan filed this petition, again asking for a reduction in child support, this time due to his greatly reduced earnings. On August 2, 1995, an evidentiary hearing was held to determine whether Jonathan had experienced a substantial change of circumstances justifying a reduction in child support.

In a written order dated September 11, 1995, the trial court found Jonathan acted in good faith in leaving his former firm and starting a solo practice, as his freedom to access the courts in matters concerning Sherry would have been impaired by the leverage Centanni held over the firm. The trial court also found Jonathan's actions had resulted in a substantial change in his financial circumstances. See 750 ILCS 5/510(a)(1) (West 1994). The court temporarily reduced Jonathan's child support payments from $2,500 per month to $1,500 per month for a period of six months, with the accrued difference to be paid at a later date. The trial court entered a written order finding there was no reason to delay either enforcement or appeal (155 Ill. 2d R. 304(a)), and this appeal followed.

In Illinois, a party may request a modification of his or her child support obligations based on a substantial change of circumstances. 750 ILCS 5/510(a)(1) (West 1994); In re Marriage of Fink, 275 Ill. App. 3d 960, 964, 656 N.E.2d 1131, 1134, 212 Ill. Dec. 297 (1995). A voluntary change in employment which results in diminished financial status may constitute a substantial change in circumstances if undertaken in good faith. In re Marriage of Horn, 272 Ill. App. 3d 472, 476, 650 N.E.2d 1103, 1106, 209 Ill. Dec. 130 (1995). In determining whether an individual acts in good faith in changing employment, the trial court looks at whether the change was driven by a desire to evade financial responsibility for supporting the children. In re Marriage of Mitteer, 241 Ill. App. 3d 217, 224, 608 N.E.2d 607, 612, 181 Ill. Dec. 534 (1993). The proponent of the reduction of child support payments bears the burden ...

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