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In re Marriage of Gregory M. Nelson

June 26, 1998

IN RE MARRIAGE OF: GREGORY M. NELSON, PETITIONER-APPELLANT,
v.
TRACIE S. NELSON, RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Justice Breslin

Appeal from the Circuit Court for the 14th Judicial Circuit, Henry County, Illinois

No. 95--D--124

Honorable Clarke C. Barnes Judge, Presiding

Petitioner Gregory Nelson appeals the trial court's judgment dissolving his six year marriage with the respondent, Tracie Nelson. Greg argues that the trial court: (1) abused its discretion in computing his net income for purposes of child support; (2) erred in ordering him to reimburse the marital estate for payments made on non-marital assets and in characterizing certain farmland as marital property; and (3) abused its discretion in apportioning the marital property between the parties. For the following reasons, we affirm in part, reverse in part and remand with directions.

FACTS

In January 1997 a judgment of dissolution was entered dissolving Greg and Tracie's marriage of six years. The Nelson's lived together as husband and wife until March of 1995. At that time, Greg was 38 and Tracie was 31 years of age. Two children were born to the marriage. Lindsey was three and Derek was five months when the parties separated. Greg had one son from a previous marriage who also lived with the parties during the marriage.

Throughout the marriage, Greg worked as a farmer while Tracie was employed as a full-time bank teller. Greg's gross income for 1996 was $43,297, for 1995 it was $90,780 and for 1994 it was $73,877. The record indicates that Tracie earned approximately $20,000 a year. Her income fluctuated to as low as $5,800 in 1995. In addition to working in part and full-time teller positions, Tracie was responsible for caring for three children, running family errands and doing various household tasks. Tracie used a large portion of her earnings to pay for household and family expenses.

Greg and Tracie resided on property that Greg bought on contract from his mother in 1986. The property included the couple's home and 160 acres of farmland. While married, Greg and Tracie made several payments on the purchase contract.

In August of 1992, Greg and his father purchased a farm referred to as "Clover Township" farm. In 1993 Tracie's name was added to the deed. The farm was owned one-half by Greg's father and one-half in joint tenancy between Greg and Tracie. Tracie signed the note and the mortgage. Over the next few years, Greg's father presented him with three substantial checks made out to Greg Nelson. Greg testified that he and his father had an express agreement that the checks were a gift to him only and were to be used against the farm's principal. However, no written agreement was produced at trial. The funds were deposited in Greg and Tracie's joint checking account and used to pay the mortgage on the Clover Township farm.

Greg also owned several pieces of non-marital farm machinery. During the marriage, Greg purchased replacement farm equipment with cash and the trade-in of older machinery. He paid the cash difference between the trade-in value and the cost of the replacement machinery with funds that were generated during the marriage. On his tax returns Greg deducted certain depreciation expenses related to the machinery and the operation of his farming business.

In the judgment of dissolution, the trial court awarded Tracie child support in the amount of $350 a week. It arrived at this figure by averaging Greg's net income for 1994, 1995 and 1996 as reported on his federal income taxes. The court made additional findings regarding numerous contested property issues. It found that Greg failed to present clear and convincing evidence to overcome the presumption that the Clover Township farm was marital property. It ordered Greg to reimburse the marital estate for the payments made during the marriage to reduce the principal indebtedness on the marital residence. In addition, he was ordered to reimburse the estate for the cash used to purchase the farm machinery. After identifying various property items as marital and non-marital, the court divided the marital estate equally between Greg and Tracie. Tracie was awarded marital property in lieu of maintenance in the amount of $121,000.00. Greg was ordered to pay the amount in installments over a three-year period. Greg's posttrial motion was denied and he appeals.

ANALYSIS

We first address Greg's contention that the trial court erred in computing net income for purposes of determining child support.

A court may order a supporting parent to pay child support in an amount that is reasonable and necessary for the child's well-being. 750 ILCS 5/505(a)(West 1996). Generally, the minimum amount of child support that can be awarded for two children is 25% of the supporting parent's net income. 750 ILCS 5/505(a)(1)(West 1995).

Section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) defines net income for purposes of child support as the total of all income from all sources minus several enumerated deductions. 750 ILCS 5/505(a)(3)(West 1996). Those deductions include: (a) Federal income tax; (b) State income tax; (c) social security tax; (d) mandatory retirement contributions; (e) union dues; (f) dependent and individual health insurance premiums; (g) prior obligations of support paid under court order; and (h) expenditures for the repayment of debts that represent reasonable and necessary expenses for the production of income. 750 ILCS 5/505(a)(3)(West 1996); Department of Public Aid ex rel. Jennings v. White, 286 Ill. App. 3d 213, 675 N.E.2d 985 (1997). The findings of a trial court as to net income and the award of child support are within its sound discretion and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Freesen, 275 Ill. App. 3d 97, 655 N.E.2d 1144 (1995).

Greg contends that the child support award of $350 per week is unreasonable in light of his income as reported on his 1996 ...


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