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Stockton v. Oldenburg

July 01, 1999


Appeal from Circuit Court of McLean County No. 95F636. Honorable W. Charles Witte, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

the opinion of the court:

Respondent Matthew J. Oldenburg appeals from the judgment of the circuit court of McLean County in this action to establish his parentage of Lauren Joanne Stockton (born August 10, 1995) brought by the child's mother, petitioner Stacey L. Stockton, n/k/a Stacey L. Stockton Shangraw. The issues are whether the trial court erred by (1) denying Matthew's petition to change the child's name to add his surname, (2) granting Matthew a tax exemption for the child in alternate years, (3) ordering Matthew to pay Stacey for lost wages and non-medical expenses arising from her pregnancy, and (4) not granting Matthew more liberal visitation and the opportunity to provide care for the child in lieu of day care. We affirm in part and reverse in part and remand.

The facts need not be set forth in detail and will be discussed as necessary for an understanding of this court's Disposition.

Matthew petitioned the trial court to change the child's last name to Lauren Stockton Oldenburg. As to a minor, an order to change a child's name shall not be entered unless the trial court finds by clear and convincing evidence that a change is necessary to serve the child's best interest. In making that determination, the trial court may consider, among other factors, (1) the wishes of the child's parents and custodian; (2) the child's wishes and the reasons therefor; (3) the child's interaction and interrelationship with the parents, custodian, other persons in the familial relationship such as stepparents, siblings, stepsiblings, or any other person who may significantly affect the child's best interests; and (4) the child's adjustment to home, school, and community. 735 ILCS 5/21-101 (West 1996). The trial court's findings as to the child's best interests will not be overturned on appeal unless they are against the manifest weight of the evidence. In re Petition of Craig, 164 Ill. App. 3d 1090, 1094, 518 N.E.2d 728, 730 (1987).

In this case, Matthew acknowledges that Lauren is too young to express her wishes or to have any problem with adjustment to home, school, or community. According to Matthew, these factors are therefore not relevant. We disagree. The trial court could reasonably find that it is premature to determine Lauren's best interests with regard to name change. Moreover, Matthew relies on the possible confusion that may result in Stacey's home from the variety of last names there. Stacey has now added the last name of her husband Eric Shangraw to her maiden name while retaining the name Stockton. They have a daughter, Rachel Shangraw. Only Lauren will have the last name Stockton. Matthew's suggested solution, however, does not rectify that situation. More persuasive is Matthew's argument that the name change would allow Lauren to more closely identify with him as her father and with his family, now including his wife Barbara and Brianna Oldenburg, a half-sister of Lauren. Nevertheless, the trial court was not required to find that the necessity of a name change for Lauren's best interests was established by clear and convincing evidence.

Dr. Laurie Bergner, a clinical psychologist retained by Matthew to render an opinion regarding visitation, stated "I think it could be nice for Lauren in the future to have both Oldenburg and Stockton in her name." Bergner added, "it's less confusing, and it makes it very clear that they're both her parents equally. In our culture, most children have their father's name."

It is also recognized that a non-custodial parent is at a disadvantage in maintaining a strong relationship with the child and the child carrying that parent's name may demonstrate a non-custodial parent's continuing interest in and identity with the child. In re Marriage of Presson, 102 Ill. 2d 303, 312, 465 N.E.2d 85, 89 (1984). Adding Oldenburg to Lauren's name would affirm her relationship with her father. See Dattilo v. Groth, 222 Ill. App. 3d 467, 469, 584 N.E.2d 196, 197 (1991) (also finding that using the father's surname as a middle name would be less disruptive than changing the child's surname). However, in this case, the evidence only established that a name change "could be nice." That does not make it necessary. The conflicting desires of the parents cancel each other out, to some extent, and the remaining evidence does not establish that a name change is required or is in Lauren's best interests. See In re Parentage of Mattson, 240 Ill. App. 3d 993, 997, 608 N.E.2d 1284, 1287 (1993). The trial court's finding that a name change was not in Lauren's best interests at this time is not against the manifest weight of the evidence.

The trial court found each party entitled to take Lauren as an exemption for federal and state income tax purposes in alternate tax years, Stacey in odd-numbered years beginning in 1997 and Matthew in even-numbered years beginning in 1998. Matthew argues he should receive the exemption for Lauren in all years because his court-ordered child support provides for more than one-half of the child's expenses.

Section 152(e)(2)(A) of the Internal Revenue Code (26 U.S.C. §152(e)(2)(A) (1994)) provides that the custodial parent is entitled to the deduction unless the custodial parent signs a written declaration that such custodial parent will not claim the child as a dependent for the tax year.

This court has determined that section 152(e) does not deprive the Illinois trial courts of the discretion to allocate the tax exemption for the child to the non-custodial parent and direct the custodial parent to sign a declaration that he or she will not claim the dependency exemption. In re Marriage of McGarrity, 191 Ill. App. 3d 501, 504, 548 N.E.2d 136, 138 (1989). Under the Illinois Parentage Act of 1984 (Parentage Act), child support is set based on standards included in sections 505 and 505.2 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505, 505.2 (West 1996)). 750 ILCS 45/14(a)(1) (West Supp. 1997); In re Parentage of Janssen, 292 Ill. App. 3d 219, 223, 685 N.E.2d 16, 19 (1997). As in other child support issues, the standard of review is whether the allocation of the tax exemption amounted to an abuse of discretion or the factual predicate for the decision is against the manifest weight of the evidence. See Gay v. Dunlap, 279 Ill. App. 3d 140, 144-45, 664 N.E.2d 88, 92 (1996).

Matthew argues that his child support payments of $397 every two weeks ($860.17 per month) exceed one-half of the child's monthly expenses of $981.74 listed in Stacey's financial affidavit. In addition, he argues that this list of expenses should be reduced because he was ordered to pay one-half of the day-care expenses, up to $200 per month, and one-half of all the child's medical expenses not covered by medical insurance, which he was also required to carry on the child. However, on appeal, Matthew does not raise an issue concerning the propriety of these court-ordered payments. Instead, he only challenges the allegation of the income tax exemption. Stacey's affidavit also listed several other monthly household expenses: utilities, $235.70; food, $681.83; cleaning and laundry supplies, $106.41; automobile expenses, $456.67, including gasoline, maintenance, loan payments and insurance; and mortgage and property taxes, $1,783.34.

Financial responsibility for supporting a child is the joint and several obligation of each parent. In re Marriage of Butler, 106 Ill. App. 3d 831, 836, 436 N.E.2d 561, 564 (1982); see also 750 ILCS 5/505(a) (West 1996) (either or both parents owing support may be ordered to pay). Raising a child involves necessary expenses such as food, clothing, shelter, and medicine. In re Marriage of Raski, 64 Ill. App. 3d 629, 631, 381 N.E.2d 744, 747 (1978). Support includes the physical, mental, and emotional needs of the child. 750 ILCS 5/505(a) (West 1996). Much of the custodial parent's contribution to the care of the child is not conveniently reducible to financial figures relating only to the child. The costs of maintaining a home, purchasing food for the family, laundering the family's clothing, and maintaining the family mode of transportation are necessary for the welfare of the child as part of an integrated family unit. In addition, the custodial parent expends time and energy in the care of the child. This contribution cannot be downplayed simply because it is not reducible to a financial figure. See In re Marriage of Kern, 245 Ill. App. 3d 575, 579, 615 N.E.2d 402, 405 (1993).

Section 505 of the Marriage Act creates a rebuttable presumption that a specific percentage of a non-custodial parent's income represents an appropriate award of child support. In re Marriage of Singleteary, 293 Ill. App. 3d 25, 36, 687 N.E.2d 1080, 1087-88 (1997). But simply paying that amount does not automatically entitle the non-custodial parent to an income tax exemption for the child. Matthew has failed to prove that he actually makes a greater financial contribution to the support of the child than does Stacey. The trial court apparently found their contributions to be equivalent, ...

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