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People ex rel. Myers v. Kidd

November 05, 1999

THE PEOPLE EX REL. CONSTANCE MYERS, PETITIONER-APPELLEE,
v.
JAMES KIDD, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 96-F-1333 Honorable Robert J. Hillebrand, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Respondent, James Kidd, appeals from the trial court's order setting child support for Shahkia Myers, the minor daughter of respondent and petitioner, Constance Myers. The sole issue that respondent raises in this appeal is whether the trial court abused its discretion by ordering respondent to pay child support from his net income, which the court defined to include respondent's income from the firefighters' disability pension fund. We agree with the trial court's determination of net income and affirm.

On October 29, 1998, the trial court ordered respondent to pay child support in the amount of $249 every two weeks retroactive to February 1, 1998, plus $25 every two weeks for the arrearages due to that date. Prior to the entry of this order, the trial court heard the parties' arguments regarding how to calculate respondent's net income. Respondent argued in the trial court, and continues to argue in this court, that only income from his current employment could be used to determine his net income for purposes of child support. Respondent's argument is based upon the following language of section 4-135 of the Illinois Pension Code (pension fund statute):

"No portion of the pension fund shall, either before or after a board's order of distribution to any retired firefighter or his or her beneficiaries, be held, seized, taken subject to, or detained or levied on by virtue of any process, injunction interlocutory or other order or judgment, or any process or proceeding whatever issued by any court of this State, for the payment or satisfaction in whole or in part of any debt, damages, claim, demand[], or judgment against any firefighter or his or her beneficiaries, but the fund shall be held, secured[,] and distributed for the purposes of pensioning such firefighter and beneficiaries and for no other purposes whatever." 40 ILCS 5/4-135 (West 1996).

Respondent argues that his pension cannot be used to satisfy any judgment against him and that "any new or existing support order" entered by the court pursuant to section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1996)) (child support statute) "shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be deemed entered as of the date the corresponding payment or installment comes due" (750 ILCS 5/505(d) (West 1996)). Respondent contends that due to the "conflict" between the language of the pension fund statute and the child support statute, "the pension money cannot[] and should not be counted as 'net income'" as defined in the child support statute. Additionally, respondent argues that his pension is not subject to Federal income taxes and, as such, cannot be included in his net income for child support purposes.

The child support statute states as follows:

"'Net income' is defined as the total of all income from all sources, minus the following deductions:

(a) Federal income tax (properly calculated withholding or estimated payments);

(b) State income tax (properly calculated withholding or estimated payments);

(c) Social Security (FICA payments);

(d) Mandatory retirement contributions required by law or as a condition of employment;

(e) Union dues;

(f) Dependent and individual health/hospitalization insurance premiums;

(g) Prior obligations of support or maintenance actually paid ...


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