Appeal from the Circuit Court of De Kalb County. No. 97--D--387 Honorable Wiley W. Edmondson, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The marriage between petitioner, Christine Takata (Christine), formerly known as Christine Hafley, and respondent, Fred Hafley (Fred), was dissolved on January 9, 1990. Fred was ordered to pay child support and provide health insurance for the parties' two minor children. Several appeals arising from post-dissolution proceedings between the parties were consolidated for decision. In case No. 2--98--0344, previously consolidated with case No. 2--98--0622, Christine argues that (1) the trial court erred when it dismissed her petition for nunc pro tunc amendment of a six-year-old court order incorrectly calculating Fred's child support obligation; and (2) the court erred when it awarded her less than the full dollar amount of unpaid health insurance premiums pursuant to section 505.2(d) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505.2(d) (West 1996)). In case No. 2--98-- 0886, Christine alleges that the trial court erred when it (1) failed to determine Fred's net income and set child support at 25% of what she asserted was Fred's net income; (2) allocated the cost of the children's health insurance and Fred's life insurance policy equally between the parties; and (3) failed to award her attorney fees and costs. In case No. 2--98--1156, Fred appeals the August 27, 1998, order awarding Christine $17,093.46 in child support arrearage due to Fred's unreported income, because he asserts the matter was barred by res judicata. We affirm in part and reverse in part.
Shortly after the dissolution of the marriage, Fred's support obligations became in arrears. On September 3, 1991, Judge Richard Baner of Woodford County held a hearing on Fred's motion to reduce his child support obligation. Judge Baner determined that Fred's weekly income as a bartender at "Schooner's" was $297.50. Fred produced a paycheck stub illustrating that he paid $57.50 biweekly toward health insurance for himself and the children. Including the $57.50 insurance premium, Judge Baner found that Fred's biweekly income deductions were $115.34. Judge Baner then deducted $115.34 from what he erroneously calculated as Fred's biweekly gross income, $395. Judge Baner applied 25% of Fred's net income to child support and determined Fred's modified child support obligation was $35.38 per week. Judge Baner again ordered Fred to provide health insurance for the children and further ordered Fred to report by affidavit within 30 days any income received from sources other than Schooner's.
After September 24, 1992, Fred did not pay child support or provide health insurance for the children. Christine became a public aid recipient and insured the children through Medicaid from the Illinois Department of Public Aid.
On November 26, 1997, Christine filed petitions in De Kalb County for enrollment and nunc pro tunc amendment of the September 3, 1991, child support order. The petition for nunc pro tunc amendment asked the court to correct Judge Baner's mathematical error in calculating Fred's child support and to apply retroactively the modified amount. On January 6, 1998, Judge Wiley Edmondson of De Kalb County granted Christine's petition for enrollment of the September 3, 1991, child support order but denied her petition for nunc pro tunc amendment.
On January 20, 1998, Christine filed two petitions for a rule to show cause. Christine's first petition alleged that Fred failed to make any child support payments since September 24, 1992, and sought immediate payment. The petition also alleged that Fred was not reporting income he was earning in the construction field and sought an order requiring Fred to inform Christine of the names and addresses of his employers.
Christine's second petition for a rule to show cause alleged that Fred failed to maintain health insurance for the children and sought an award of the dollar amount of the unpaid premiums. Based on the $57 biweekly premium to which Fred testified in September 1991, Christine alleged Fred was $12,894.03 in arrears. This petition also sought an order requiring Fred to inform Christine of the name and address of his employers.
The court held a hearing on the pending petitions on February 19, 1998. The Judge denied Christine's petition to reconsider the dismissal of her nunc pro tunc amendment. She timely filed her notice of appeal. The court also found Fred in civil contempt for failing to pay his outstanding child support arrearage and failing to provide health insurance for the children. Judge Edmondson ordered Fred to pay the full child support arrearage but ordered Fred to pay only 25% of the unpaid health insurance premiums, calculated to be $3,223.50. The court reasoned that 25% was appropriate because this was the amount of additional child support Christine would have received had the court not ordered Fred to provide insurance and deducted the premiums from his income to determine child support. Because Christine was provided health insurance at no cost to her, Judge Edmondson stated that to award the full amount of unpaid premiums would result in a "windfall" because she was not "out anything."
Judge Edmondson revisited this ruling on Christine's motion to reconsider, which he ultimately denied. Judge Edmondson admitted that the statutory language supported Christine's argument that she should be entitled to the full dollar amount of the premium arrearage, but he stressed that there was no evidence that she incurred medical costs for the children that were not covered by the Illinois Department of Public Aid. He acknowledged that the dilemma was such that, if he denied relief to Christine, then Fred would receive a windfall because he is excused from his health insurance obligation. On the other hand, if the court were to grant Christine's petition, she would receive an award from Fred that was covered at no cost to her by the Illinois Department of Public Aid.
In the end, the court found that because the health insurance premiums were deducted from Fred's income to determine child support, Christine was entitled to 25% of the unpaid premiums, which represented the amount that her child support would have been had the court not deducted the insurance premiums. Christine filed her timely notice of appeal from the insurance premium order and it was consolidated with her appeal from the order denying her petition for nunc pro tunc amendment.
On April 9, 1998, Christine filed a petition to modify Fred's child support obligation of $35.38 per week in which she sought (1) to increase Fred's child support obligation; (2) to obligate Fred to pay for the cost of the children's health insurance, which was now estimated to be $137.84 per month; and (3) to require Fred to obtain and pay for a life insurance policy to secure his future child support payments. Fred filed a countermotion to modify his child support, asking to be relieved of his obligation to provide health and hospitalization insurance for the children.
On May 11, 1998, at the hearing on the two motions, Fred admitted that he receives some income that he does not report to the IRS or to the court. Christine presented Fred's tax statements in which Fred admitted he earned close to $30,000 per year prior to the dissolution. Christine also presented evidence that almost $18,000, over and above Fred's current wife's income, was deposited in Fred's joint checking account.
Judge Edmondson found that there was a material change in circumstances subsequent to the last court order in September 1991 and that the child support awarded in 1991 was disproportionate to the actual costs of the children. He granted Fred's petition to stop paying health and medical insurance for the children and ordered Christine to cover the expense out of Fred's support obligation. Furthermore, the Judge ordered Christine to obtain life insurance on Fred's life at $43.41 per month.
The Judge found that there was no material change in circumstances since the time the parties lived together when Fred had an income close to $30,000 per year. The Judge stated:
"I found Mr. Hafley's testimony not to be credible. I find that his current income, gross or net, is difficult to ascertain and uncertain. Frankly, I don't know what it is. I believe that he earns at least $18,000 per year upon which he pays no taxes. The record shows that he has capacity to earn income greatly in excess of the sum he claims to earn now. The court finds that he has earned in the past as much as approximately $30,000 gross from self-employment. There's no evidence to indicate that he couldn't or indeed that he doesn't earn that now."
On May 13, 1998, Judge Edmondson entered his written order in which he memorialized his previous findings. The Judge also found that Fred had no reasonable explanation for the almost $18,000 in deposits. In figuring child support, Judge Edmondson stated that "in this case, the Court cannot determine guideline child support; but must look primarily to the reasonable needs of the children in setting support." Thus, the Judge ordered Fred to pay child support equal to approximately one-half of the reasonable expenses of the children, in the amount of $125.96 per week, and required Christine to use this money to obtain medical insurance for the children and life insurance to secure Fred's future child support payments.
Subsequently, Christine's motion to reconsider was denied. In response to Christine's argument that the child support was not set at 25% of what she asserted ...