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In re Marriage of Janet C. Wolfe

August 12, 1998

IN RE MARRIAGE OF JANET C. WOLFE, PETITIONER-APPELLEE,
v.
STEVE L. WOLFE, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Justice McLAREN

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Du Page County.

No. 93--D--1823

Honorable Kenneth A. Abraham, Judge, Presiding.

The respondent, Steve Wolfe, appeals from the February 24, 1997, and May 12, 1997, orders of the circuit court of Du Page County distributing the portion of a personal injury settlement that compensated Steve for lost future wages as marital property and child support. The trial court ordered that 10% of the lost future wages portion of the settlement proceeds be awarded as marital property to the petitioner, Janet Wolfe, and 20% of the lost future wages portion of the settlement proceeds be used to establish a trust fund for the support and benefit of Cassandra Wolfe, the parties' only child. On appeal, Steve argues that (1) the trial court erred in finding that the settlement proceeds could be considered "income" for purposes of making a child support award; and (2) the trial court erred in determining and calculating the specific award of child support. We affirm in part, reverse in part, vacate in part, and remand the cause for further proceedings.

On July 21, 1993, Janet filed a petition for dissolution of marriage. The parties' only child, Cassandra, was born on October 24, 1990. In her petition, Janet requested custody of Cassandra and an award of child support.

Approximately one year prior to the commencement of the dissolution proceedings, Steve was seriously injured in a work-related accident and, as a result, was no longer able to work. After his injury, Steve began to receive social security disability benefits in the amount of $1,710 per month.

On August 18, 1993, the trial court awarded Janet temporary custody of Cassandra and ordered Steve to pay temporary child support in the amount of $342 per month. This amount represented 20% of Steve's then monthly income of $1,710. On December 20, 1993, Janet filed a petition for an increase in the amount of temporary child support. On February 7, 1994, following a hearing, the trial court entered an agreed order requiring (1) that Janet maintain medical insurance for Cassandra through her employer; (2) that Steve pay 60% of the monthly cost for such insurance; (3) that the parties would equally pay all of Cassandra's medical expenses not covered or reimbursed by insurance; and (4) that the parties would pay equally for all of Cassandra's outstanding medical expenses.

Also on February 7, 1994, the parties entered into an agreed permanent custody order. Pursuant to this order, Janet was granted permanent sole custody of Cassandra and Steve was granted supervised visitation.

On two separate occasions, Janet filed a motion for a rule to show cause against Steve to force his compliance with the trial court's orders. On December 20, 1993, Janet filed a motion for a rule to show cause complaining of Steve's failure to participate in court ordered "conciliation" sessions with a counselor. On September 15, 1995, Janet again filed a motion for a rule to show cause complaining of Steve's failure to reimburse her for his share of Cassandra's medical insurance and health care expenses.

The cause proceeded to trial on February 1, 1996. On March 16, 1996, the trial court entered a judgment of dissolution. As part of its dissolution order, the trial court ordered (1) that Steve pay Janet $1,717.16 as an arrearage on his support obligations; (2) that Steve pay the sum of $146 per month in child support (20% of his monthly income at that time); (3) that Steve reimburse Janet for 50% of all medical expenses and insurance premiums; (4) that Steve pay Janet 20% of his $58,526 workers compensation settlement; and (5) that the trial court would retain jurisdiction to allocate any proceeds received by Steve as a result of his then pending personal injury claim brought pursuant to the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992) (repealed by Pub Act 89--2, §5, eff. February 14, 1995)).

On October 4, 1996, Steve filed a petition for allocation of proceeds from the settlement of his Structural Work Act claim. In the petition, Steve stated that the net settlement proceeds payable to him after all liens, costs, and attorney fees was $375,337.33. The petition further alleged that 80% ($324,425.88) of the settlement proceeds represented Steve's future wage loss; 6.66% represented future medical expenses; 6.66% represented past medical expenses; and 6.66% represented pain and suffering. On January 14, 1997, the trial court entered an order requesting both parties to submit briefs suggesting the appropriate allocation of the settlement proceeds for purposes of a property settlement and child support.

Pursuant to this order, on February 3, 1997, Steve filed a brief in which he presented his proposal as to the appropriate allocation of the settlement proceeds. In his brief, Steve relied on this court's decision in Villanueva v. O'Gara, 282 Ill. App. 3d 147 (1996), and argued that a personal injury settlement could not be considered income for purposes of awarding child support. Steve argued that, because he was only 40 years old and physically unable to work, any lump sum payment for child support was inappropriate and would result in hardship. Instead, Steve suggested that an annuity be purchased in the name of the minor.

Steve also noted that, prior to the dissolution proceeding, the parties had filed for bankruptcy protection in federal court. As part of that proceeding, the bankruptcy court apparently ordered that the parties deposit $50,000 with the bankruptcy trustee pending the payment of all administrative fees and unsecured claims. Steve argued ...


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