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04/18/97 MARRIAGE CHERYL L. DAVIS N/K/A CHERYL L.

April 18, 1997

IN RE MARRIAGE OF CHERYL L. DAVIS N/K/A CHERYL L. BIEVENUE, PETITIONER-APPELLEE, AND DUANE A. DAVIS, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Madison County. No. 89-D-166. Honorable Lewis E. Mallott, Judge, presiding.

The Honorable Justice Maag delivered the opinion of the court. Hopkins, J., and Welch, J., concur.

The opinion of the court was delivered by: Maag

The Honorable Justice MAAG delivered the opinion of the court:

The respondent-appellant, Duane A. Davis, and the petitioner-appellee, Cheryl L. Davis, n/k/a Cheryl L. Bievenue, were married on January 26, 1985. The parties had one child, Danielle Renee Davis, born August 28, 1985. The marriage was dissolved on February 7, 1989. The instant action was brought in order to increase child support due Cheryl from Duane. The circuit court increased the amount of child support and denied Duane's posttrial motions. Duane appeals the circuit court's order.

The relevant facts are as follows. Cheryl filed a petition for dissolution on February 7, 1989, and a judgment for dissolution was entered the same day. Since Duane was a dental student and unemployed, the judgment of dissolution reserved the issue of child support until Duane was employed. Duane began working as an independent contractor for Harold Martin, D.D.S., in Flora, Illinois, on January 7, 1991. On June 27, 1991, Cheryl filed a petition to establish support. The circuit court entered an order on August 21, 1991, ordering Duane to pay Cheryl child support commencing January 1991 in the amount of $260 per month. On June 26, 1992, the circuit court ordered Duane to pay child support to Cheryl in the amount of $400 per month commencing July 1, 1992.

On May 16, 1994, Duane purchased Jane Setzekorn's late husband's dental practice, and the building partnership interest that went along with the practice in Mt. Vernon, Illinois. In order for Duane to purchase the late Dr. James Setzekorn's practice, he was required to become a partner in the Dental Arts Clinic building partnership that includes three other dentists. The partnership is responsible for owning and maintaining the office facility and the dental equipment contained therein. Duane testified that the purchase of the building partnership interest was not an optional feature of acquiring Dr. Setzekorn's dental practice. Duane borrowed a total of $150,000 to buy the dental practice and the building partnership interest.

On December 21, 1994, Cheryl filed a petition to modify, seeking an increase in the amount of child support paid-by Duane.

A hearing was held on Cheryl's petition on November 27, 1995. A review of the record shows that in 1994, Duane and his current spouse, Darla D. Davis, filed joint income tax returns. Duane reported business income of $48,135, a nonpassive depreciation loss of $18,999 on the purchase of his partnership interest, and interest income of $106. Darla reported $2,601 in wages. Based on these figures, Darla and Duane had a total income of $31,843. Duane calculated that he earned 92% of the total income. Duane also calculated that after deducting federal and state taxes and his own health insurance, his net income for child support purposes was $21,266.

At the time of the trial in this case, Duane's net income for 1995 was not fully known.

Cheryl has a bachelor of science degree in civil engineering, and at the time of the hearing, she was working on completing her master's degree. She is a registered professional engineer in Missouri. At the time of the hearing, Cheryl was employed by the United States Air Force as a program manager for an architectural and engineering contract at Scott Air Force Base. Cheryl testified that her gross income for 1994 was $42,020.41. Although Cheryl had been contributing to a retirement plan, she did not know its value. Although Cheryl prepared an affidavit of assets and liabilities, she admitted that the figures that she provided in the affidavit were merely estimates because she prepared it in the hallway immediately before she walked into the courtroom at the November 27, 1995, hearing.

Danielle was 10 years old at the time of the hearing. Cheryl testified that she spends an average of $150 per month on Danielle's clothing. Cheryl also stated that she pays $42.25 per month for Danielle to take gymnastic lessons once per week. Danielle was also involved in soccer, softball, and basketball. Cheryl testified that the cost for each sport is $10 in addition to the equipment. She stated that the equipment can be costly depending on the type of shoes that she must buy. Danielle also takes piano lessons one time each week, and they cost $15 per lesson. Danielle also participates in band. Cheryl stated that Danielle is invited to birthday parties and that she must buy gifts for her friends. Cheryl testified that Danielle attends church camp that costs $170 per year, and that she attends girl scout camp that costs $20 to $30. Cheryl stated that she neither informed Duane about the cost of these activities nor asked him to contribute to their cost.

On January 12, 1996, the circuit court determined that Duane's net monthly income for child support purposes was $4,511 per month, and the court ordered Duane to pay Cheryl child support in the amount of $902 per month.

Duane filed a posttrial motion on February 9, 1996, requesting modification of the circuit court's January 12, 1996, order and requesting that the circuit court admit his 1995 tax returns into evidence. On February 16, 1996, Duane filed an amended posttrial motion with his revised 1995 tax returns attached thereto.

A hearing was held on Duane's amended posttrial motion on April 17, 1996. The circuit court denied Duane's amended posttrial motion and Duane's motion to file his 1995 tax returns with the court. More specifically, the circuit court's order states, in relevant part, as follows: "The Court *** notes that hearing on this matter was conducted on November 27, 1995, and the Court assumes that both parties, in particular the Respondent, submitted *** financial evidence up to and through November 27, 1995. The Court further notes that there was no continuance requested by Respondent of the November 27th date so as to have the hearing after the entire 1995 calendar year had expired. The Court also notes that at [the] time of hearing some eleven-twelfths of the year had expired and financial information for the month following the day of the hearing is not now relevant to be received into evidence during a post-trial [sic] motion."

Duane filed a timely notice of appeal on May 21, 1996.

The issue presented for review is whether the circuit court abused its discretion in granting Cheryl's petition to increase child support. Duane claims that the circuit court abused its discretion in the following ways:

(1) The trial court erred in ordering an increase in child support without making a threshold finding that there had been a substantial change in circumstances;

(2) The trial court abused its discretion in refusing to admit Duane's 1995 tax returns into evidence;

(3) The trial court erred in failing to deduct the depreciation expense/nonpassive loss of Duane's building partnership interest when determining ...


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