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02/02/98 DEPARTMENT PUBLIC AID EX REL. ANTOINETTE

THE DEPARTMENT OF PUBLIC AID EX REL. ANTOINETTE NALE, PETITIONER-APPELLANT,
v.
MICHAEL NALE RESPONDENT-APPELLEE.



Appeal from Circuit Court of Macon County No. 88D150 Honorable John L. Davis, judge Presiding.

The opinion of the court was delivered by: Justice Cook delivered the opinion of the court:

Michael and Antoinette Nale were divorced in December 1988. Two children were born to the parties: Jessica, now age 17, and Garrett, now age 15. Under the separation agreement incorporated into the Judgement for dissolution of marriage, Antoinette was designated primary physical custodian of the children and Michael paid $400 per month in child support. In August 1996, the Illinois Department of Public Aid (IDPA), acting on behalf of Antoinette, filed a petition to modify child support, which was denied in October 1996. In January 1997, IDPA's motion to reconsider was denied. We reverse and remand with directions.

When Antoinette and Michael separated in December 1988, they entered into a separation agreement that provided Antoinette had primary physical custody of the children and Michael was to have reasonable visitation rights. This agreement was incorporated into the order dissolving their marriage, entered later that month. The agreement provided Michael would pay child support of $200 per month per child, subject to modification in accordance with statutory guidelines should Michael receive a pay increase.

In 1996, Antoinette availed herself of the child support services of the IDPA, although she was not receiving public aid. See 305 ILCS 5/10-1, 10-10 (West 1996); In re Marriage of Lappe, 176 Ill. 2d. 414, 438-39, 680 N.E.2d 380, 392 (1997) (upholding the constitutionality of IDPA's child support enforcement program). In August 1996, the IDPA filed a petition on behalf of Antoinette to increase child support, alleging an increase in the children's needs and an increase in Michael's ability to pay. Antoinette attached her financial affidavit to her petition. In his response, Michael admitted both the children's needs and his ability to pay have increased. Michael requested that if the court increased his child support obligation, he be awarded the state and federal income tax deductions for the children and be given credit for the periods he has actual custody of the children for summer and holiday visits.

In October 1996, the trial court heard the petition to modify. Antoinette's affidavit listed her gross annual income as $53,818, and her weekly gross income as $1,035 (or $4,484.83 per month). After taxes and social security deductions, Antoinette earns $831.95 per week ($3,605.12 per month). She testified her most recent take-home pay was $1,130 for a two-week period (or $2,260 per month). The affidavit indicates her monthly expenses amount to $2,626.40, in addition to $327.72 in car loans and credit card payments.

Michael's income had increased since the dissolution. He testified his "salary in 1989" was $32,000 to $33,000. According to Michael's tax forms, he earned a gross income of $38,489.26 in 1993, $42,794.05 in 1994, and $45,516.36 in 1995. Michael testified that in 1996 his "annual salary just over $51,000." According to a recent pay stub, his take-home pay is $1,309.68 every two weeks for a period of nine months a year. Michael has remarried since the dissolution, and his tax returns suggest his current wife is also employed.

Antoinette testified the children stay with Michael more often than every other weekend and they spend one-half of holiday vacations with him. Michael testified his son lived with him the first trimester of the school year and was with him for more than half of the summer. Antoinette testified Garrett was with Michael half of the summer but Jessica stopped spending half of the summer with Michael two years before the hearing.

In addition to $400 per month in child support, Michael pays $150 per month to provide health insurance coverage for the children. Michael stated he also provided for all the children's needs during periods of extended visitation and continued to pay the full amount of support to Antoinette when he had custody of the children. Michael has taken several vacations with the children in the last few years and also gives them gifts on holidays.

Antoinette testified the children's needs have increased significantly since the child support order in 1989. Antoinette testified in general terms as to the types of expenses she incurred on behalf of the children, but she was unable to calculate and testify exactly how much it cost her each month to support the children. Antoinette detailed significant expenditures for allowances, extracurricular activities, a car for Jessica, birthdays and Christmas, and vacations. Antoinette testified the children have bank accounts at three different institutions. Each has about $1,000 in his respective account at the credit union, $2,000 each in a Putnam Investment account, and $400 to $500 each in a First Mutual Investment account.

On cross-examination Antoinette testified Jim Forester has lived in her home for three years. She described him as her "significant other" and stated she planned to marry him sometime in the spring of 1997. Forester earns $36,000 per year. Antoinette testified Forester contributes to the household "no more than what his normal expenses would be." He does not pay her rent or contribute to her mortgage payment, taxes, or insurance. Forester does not pay for water and sewer services. Nor does Forester pay for telephone, trash collection, or cable television. However, Antoinette testified Forester "pays his share in the house," stating further that "every now and then he will pay a utility bill or a water bill" or pay the cleaning lady. Antoinette testified he sometimes buys groceries, pays his own car insurance, and "takes care of other types of things around the house." When the court asked her to present cancelled checks to document Forester's contributions, she was unable to do so.

At the close of testimony, IDPA's counsel stated that though the statutory child support amount was $763.56 per month, the children's needs justified an upward deviation in child support, to $800 per month. Michael's counsel argued that some increase in child support was appropriate, given the rising needs of the children and his rising income. However, he argued $600 per month was adequate. He again requested the income tax exemptions and credit for time he spent with the children.

In pronouncing judgment, the trial court recited the statutory factors and then made the following statement:

"This court, after having considered the statutory factors, finds that the statutory amount is not appropriate in this situation, that the amount of support being paid under the current situation is adequate in view of the resources of the children, the physical and emotional needs of the children, and educational needs. So far as this court is aware, Section 720 ILCS 5[/]11-8 [(West 1996), defining the misdemeanor crime of fornication,] as not been repealed in this state and is still good law. This woman comes before this court asking for an increase in child support but at the same time supports a man not her husband. And yet argues to this court that she needs additional support. She is living in a open state of fornication in violation of the law. This petition is denied."

In January 1997, Antoinette's motion to reconsider was heard. Antoinette offered evidence of Forester's contributions to the household, but the trial court rejected it and did not allow her to make an offer of proof. The trial court ...


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