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February 7, 1997


Appeal from the Circuit Court of St. Clair County. No. 90-D-167. Honorable Ellen A. Dauber, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Kuehn, P.j., and Rarick, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Richard Klomps appeals from the order of the St. Clair County circuit court which set child support for his two minor children at 25% of his net income from his wages for his current employment and 25% of his net income from his monthly military pension derived from his former United States Air Force service. Richard argues that the trial court erred in using his retirement benefits for assessing the proper level of child support, since those benefits were previously determined to be marital property and Barbara Klomps, Richard's ex-wife, was awarded a share of those benefits in the judgment of dissolution. We disagree with the argument that the court erred in using Richard's share of his retirement income for assessing child support, and therefore, we affirm.


Richard and Barbara were married in 1974. During the marriage, three children were born, two of which were minors at the time the court entered the most recent child support order. The parties' marriage was dissolved in 1992. At the time the judgment of dissolution was entered, Richard was 43 years old and was a captain in the United States Air Force. At the time of the dissolution, Barbara was awarded custody of the three children, who ranged in age from 8 to 16 years. Richard was ordered to pay child support in the amount of $1,010 per month, which was 32% of his income from the Air Force. Barbara was awarded $500-per-month maintenance. As a part of the property distribution, the court found that Richard's military retirement benefits were marital property. The court awarded Barbara approximately 35% of the retirement benefits as her share of this marital asset.

On April 5, 1993, after the parties each filed a petition to modify the judgment of dissolution, the court found a substantial change of circumstances, that Richard had been promoted and his income had increased, and as a result, the court increased the level of child support to $1,263 per month.

In November 1993, Richard filed another petition for modification, alleging that he was scheduled for forced early retirement as of January 1, 1994. On January 13, 1994, the court entered a stipulated order decreasing child support to $407 per month. The decreased amount of child support was based upon Richard's only income at the time, the portion of his military pension awarded to him. The parties agreed on the lower amount of child support from Richard's pension "on a non[]precedential basis." As a part of the stipulated order, Barbara agreed to permanently waive her right to maintenance, retroactive to the date of Richard's forced retirement, when Barbara was to begin receiving her share of the pension.

On April 13, 1995, the child support award was again reduced, to $331 per month, or 25% of Richard's share of his military pension. The reduced award was based upon the emancipation of the parties' oldest child. The trial court denied Barbara's request to award child support in an amount greater than the statutory guidelines found in the Illinois Marriage and Dissolution of Marriage Act (the Act). 750 ILCS 5/505 (West 1992).

On November 13, 1995, Barbara petitioned the court for an increase in child support, alleging that Richard was employed and that the child support should be increased to an amount equal to 25% of Richard's wages from his employment and his share of the military pension. Richard filed a motion to dismiss Barbara's petition to modify, arguing that the pension could not be used for child support purposes, because it was previously classified as marital property in the dissolution and divided between the parties. The court denied Richard's motion to dismiss.

On March 28, 1996, the court held a hearing on Barbara's petition for modification and on Richard's motion asking the court to reconsider its denial of his motion to dismiss. At the hearing, the parties each testified about their income and expenses.

On April 4, 1996, the court entered an order denying Richard's motion to reconsider. The trial court stated in its order:

"[The Act] *** defines 'net income' as 'the total of all income from all sources' with certain listed deductions. Military retirement pay is not one of the listed exceptions, and the Court finds it is properly considered to be income of the parties." See 750 ILCS 5/505(a) (West 1992).

The court also found a substantial change in circumstances and granted Barbara's petition to modify the child support award. The court found that Richard's income from his employment and his pension was "approximately $2945." Based on a net income of $2945, the court ordered Richard to pay 25% ...

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