Appeal from the Circuit Court of Stephenson County. No. 87-D-68 Honorable Barry R. Anderson, Judge Presiding.
The opinion of the court was delivered by: Justice McLAREN
Respondent, Robert James Sweet, appeals the circuit court's order that increased to $170 per week his child support obligation to petitioner, Patricia Ann Sweet, now known as Patricia Ann Chriss.
Respondent contends that (1) the trial court violated his constitutional right to pursue his chosen profession by ordering him to find other employment; (2) the court erred in modifying child support in the absence of evidence of changed circumstances; (3) the court abused its discretion in ordering a fully employed child support obligor to seek other employment; (4) the court failed to state its reasons for deviating from the statutory guidelines; and (5) the court abused its discretion in making the increase retroactive to the date the petition was filed.
The parties were married in 1979. They had two children together, Adam, born in 1981, and Amy, born in 1984. The circuit court dissolved their marriage in 1988. A settlement agreement incorporated into the judgment awarded petitioner custody of the children and required respondent to pay $75 weekly as child support. The parties later agreed to two increases in child support so that when the present petition was filed respondent was paying $96 per week.
Both parties have since remarried. At the time of the dissolution, respondent was employed as an exterminator with his take-home pay averaging $1,250 per month. Petitioner was and is a self-employed child-care provider. In 1992, respondent started his own exterminating business. In 1998, he purchased a new, $28,000 truck for his business. According to his 1998 tax return, the enterprise had gross receipts of $28,685 and earned a net profit of $11,187. Among the deductions was $4,279 for depreciation, which respondent testified was for the truck. In 1997, the business earned a net profit of $8,352. Respondent admitted filling out a loan application in which he stated that his monthly net income was $3,600. He stated that he did so in order to qualify for a lower interest rate.
In January 1999, petitioner filed a petition to increase child support. At the hearing, petitioner testified that the children's expenses had increased. Specifically, she was paying for car insurance for Adam, the children ate more, their clothes cost more, and they had additional expenses for social activities and optical and dental services.
At the conclusion of the initial hearing, the court questioned respondent's credibility because he had admittedly misstated his income in a loan application. The court continued as follows:
"He reports an income of $11,187. There are winos and bustouts that appear in this court on Thursday morning that make that kind of money and they get hired, not that you're in that category. But, however, there is no reason that these children should suffer while you drive around in a new truck at a deadend job."
The court took petitioner's petition under advisement, temporarily continuing respondent's child support obligation at $96 per week. The court continued the matter until July 15 and ordered respondent to apply for employment with at least 10 firms. The court stated as follows:
"A man of your health and your stature and your ability can certainly make more in today's labor market than $11,000 a year but I'm not going to sit here and have your children suffer because you choose to become involved in such an enterprise that produces so little."
The court denied respondent's motion to reconsider or clarify its order, stating:
"If he wants to have a deadend job that's fine but I'm going to set the support commensurate with his ability. You know, he wants to have a hobby farm going around and spraying roaches for eight hundred bucks a month that's his right, but he's not going to do it at the expenses [sic] of his children."
On July 15, respondent reported that he had not conducted a job search. Petitioner's attorney argued that respondent's support obligation should be based on the income he listed in his loan application. Counsel argued that the guideline amount--25% of net income for two children--applied to the $3,000 (actually $3,600) monthly income listed in the loan application was approximately $170 per week. Respondent's ...