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In re Marriage of Worrall

October 18, 2002


Appeal from the Circuit Court of Du Page County. No. 94-D-2093 Honorable Thomas C. Dudgeon, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

The Illinois Department of Public Aid (Department) appeals from an order of the circuit court of Du Page County denying its petition to increase the child support paid by respondent, Raymond Worrall, to petitioner, Roxann Worrall. We reverse that order and remand the cause for further proceedings.

On January 19, 1995, the circuit court of Du Page County entered a judgment dissolving the parties' marriage. The parties had two minor children and respondent was initially ordered to pay $66 per week in child support. On October 23, 1995, the Illinois Department of Public Aid (Department) entered an appearance and on June 26, 1996, an agreed order was entered increasing the child support to $115 per week.

On March 24, 2000, the Department filed a petition to increase respondent's child support, alleging a substantial change in circumstances (see 750 ILCS 5/510(a)(1) (West 2000)) in that both respondent's income and the children's needs had substantially increased. The petition alternatively sought to increase child support based on an inconsistency of at least 20% between the amount of the existing order and the amount of support that would result from the application of the guidelines. See 750 ILCS 5/510(a)(2)(A) (West 2000).

The evidence at the hearing on the Department's petition established that respondent was employed as an over-the-road truck driver and his compensation consists of his base pay and an amount designated a "per diem," which is designed to cover expenses for meals and lodging while on the road. For instance, for the period from March 18, 2001, to March 24, 2001, respondent received base pay of $1,067 and a $457 per diem. Respondent testified that while on the road, he sleeps in his truck, but he incurs expenses to pay for showers. With reference to the per diem, respondent testified "I get so much a night to sleep in the truck from the government." The trial court excluded the per diem from respondent's income for purposes of deciding the Department's petition. The trial court calculated respondent's income by averaging his income for the years 1998, 1999, and 2000, and his projected income for 2001, resulting in an income of $34,988. The court stated as follows:

"Such an income places [respondent] in the 28 percent tax bracket, *** 25 percent Fed, three percent for the State, which under section 505 results in an average net income of $25,192."

This figure yielded guideline support in the amount of $121. The trial court concluded that the increase in respondent's income was insufficient to mandate increasing his child support obligation. Accordingly the trial court denied the Department's petition. The Department brought this appeal.

The sole issue raised on appeal is whether the trial court erred in excluding the per diem from respondent's income for purposes of calculating child support. We initially note that respondent has not filed an appellate brief. Nonetheless, this appeal is amenable to a decision on the merits under the principles of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).

Section 505 of the Act (750 ILCS 5/505 (West 2000)) governs awards of child support in dissolution of marriage proceedings. Section 505(a)(1) establishes guidelines to determine the minimum amount of support. Guideline support is expressed as a percentage of the supporting parent's net income and the percentage varies with the number of children being supported. 750 ILCS 5/505(a)(1) (West 2000). Here, respondent is obligated to support two children. The guideline support amount for two children is 25% of the supporting parent's net income. 750 ILCS 5/505(a)(1) (West 2000). The trial court must award the guideline amount unless the court: (1) makes a finding, after considering the best interests of the child, that the application of the guidelines would be inappropriate; (2) states the amount of support that would have been required under the guidelines, if determinable; and (3) indicates the reason or reasons for the variance from the guidelines. 750 ILCS 5/505(a)(2) (West 2000).

For purposes of determining the guideline amount, " 'Net income' is defined as the total of all income from all sources" minus deductions for federal and state income taxes (properly calculated withholding or estimated payments), social security, mandatory retirement contributions, union dues, dependent and individual health/hospitalization premiums, prior support or maintenance obligations, and, of significance here, "[e]xpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income." 750 ILCS 5/505(a)(3) (West 2000). The case law cited by the Department illustrates that the supporting parent bears the burden of establishing that a deduction applies. See, e.g., In re Marriage of Minear, 181 Ill. 2d 552, 560 (1998) (even assuming that depreciation of business assets could be deducted, supporting parent could not take the deduction because no evidence was offered to explain the claimed depreciation expense); In re Marriage of Nelson, 297 Ill. App. 3d 651, 656 (1998) (party claiming a deduction for depreciation as a reasonable and necessary expense for the production of income was required to show that the expense was the repayment of a debt).

Under federal law, when an over-the-road truck driver's employer pays a per diem allowance for meals and lodging that meets certain requirements, the recipient may take a federal income tax deduction in that amount without substantiating actual expenses. See generally Rev. Proc. 2001--47, 2001--42 I.R.B. 332. The amount designated a per diem does not necessarily correspond to any actual deductible expenses; the recipient may spend the money as he or she sees fit. At issue here is whether a portion of a child support obligor's compensation designated a per diem constitutes income for purposes of setting child support.

We have observed, " 'Income' represents a 'gain or profit' [citation] and is 'ordinarily understood to be a return on the investment of labor or capital, thereby increasing the wealth of the recipient' [citations]." Villanueva v. O'Gara, 282 Ill. App. 3d 147, 150 (1996). We have further noted that there is a distinction between income and the recoupment of capital. Villanueva, 282 Ill. App. 3d at 150. The issue in Villanueva was whether, or what portion of, the net proceeds from the settlement of a product liability lawsuit constituted "income" for purposes of modifying child support. We held that to the extent the settlement compensated the recipient for disability, disfigurement, pain, suffering, and reasonable past and future medical expenses, it did not constitute income; those portions of the award served to restore the status quo prior to his injury, but did not make him richer. Villanueva, 282 Ill. App. 3d at 150-51. However, we held that the portion of the settlement representing past and future lost earnings should be considered income for child support purposes. Villanueva, 282 Ill. App. 3d at 151.

In In re Marriage of Crossland, 307 Ill. App. 3d 292 (1999), an over-the-road truck driver argued that, in determining his income for child support purposes, the court should allow him to take a $36-per-day deduction permitted by the Internal Revenue Service. The truck driver's employer did not designate any part of his compensation as a per diem. The Crossland court noted that in the workers' compensation setting, it had been held that "payments to over-the-road truck drivers, designated by employers as 'reimbursement,' constitute 'wages' to the extent that the payments represent real economic gain rather than actual reimbursement for travel purposes." Crossland, 307 Ill. App. 3d at 295, citing Swearingen v. Industrial Comm'n, 298 Ill. App. 3d 666 (1998). The Crossland court observed that "[a]lthough the definition of 'wages' for purposes of establishing workers' compensation benefits is not coextensive with the concept of 'net income' for purposes of child support awards, we believe Swearingen's rationale is instructive." Crossland, 307 Ill. App. 3d at 295.

It is important to recognize that the Crossland court did not definitively reach the question of whether amounts properly designated a "per diem" should be included in income for purposes of calculating child support. It was unnecessary to do so because no part of the child support obligor's pay was designated as a per diem. Viewing Crossland as a whole, the limited holding of the case is that a parent owing support may not reduce his or her income by ...

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