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In re Marriage of Garrett

February 03, 2003

IN RE MARRIAGE OF HARRY TIMOTHY GARRETT, PETITIONER-APPELLANT, AND ELIZABETH ANN GARRETT, RESPONDENT-APPELLEE.


Circuit Court of Lawrence County. No. 93-D-10 Honorable Robert M. Hopkins, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman

A former wife petitioned for increased child support. The circuit court of Lawrence County, Judge Robert M. Hopkins, increased the former husband's child support payment to the statutory guidelines' minimum of $824 per week. The former husband appeals, claiming that (1) the award is substantially greater than the reasonable needs of one child and (2) the court improperly employed income averaging for the purpose of establishing child support. We affirm.

I. BACKGROUND

Dr. Harry and Elizabeth Garrett's marriage was dissolved in July 1993. At the time of their divorce, the Garretts had two children-a daughter, Allison, who was 1, and a son, Jeffrey, who was 11. Prior to the dissolution, the trial court had made a finding on a petition for interim relief that Harry's 1992 net income for purposes of child support was $175,000 and that his net income would be somewhat reduced for 1993. Subsequently, the trial court approved a marital settlement agreement setting child support at $700 per week for the two children.

In 1999, Elizabeth Garrett filed a petition for modification, seeking increased child support based on the increased needs of the children and on Harry's increased income. Harry, a self-employed physician, provided sketchy financial information at the trial. However, the court found that his net income for child support purposes was $240,034 in 1998, $237,897 in 1999, and $164,836 in 2000. The court further found that there had been a trend toward growth in his gross income between 1992 and 1999 and that the reduction in his gross income from 1999 to 2000 was atypical and unexplained by Harry's testimony. The court averaged Harry's net income for the previous three years, arriving at a figure of $214,255. The court found that there had been a substantial change in circumstances-both an increase in the needs of the children and an increase in Harry's income-warranting a modification in child support. The court then established his child support obligation for daughter Allison at the 20% statutory guidelines' minimum of $824 per week and ordered payment until Allison reached age 18. The court's order had awarded 25% for both children until June of 2000, terminating upon Jeffrey's graduation from high school. Jeffrey, although still living with his mother, had become emancipated by the time of the trial and was attending a nearby community college. Following the dissolution, Elizabeth had returned to college and obtained a teaching degree. At the time of the trial she had secured her first teaching job and was earning a net income of $19,200 per year.

Harry appeals the decision of the trial court, arguing that the court abused its discretion by (1) setting child support at a level substantially greater than the reasonable needs of the child and (2) averaging his income for the previous three years to establish his obligation. We affirm the trial court's decision.

II. ANALYSIS

A. Child Support

Motions to modify child support must be decided on the facts and circumstances of each case; therefore, the standard of review is whether the trial court abused its discretion. See In re Marriage of Singleteary, 293 Ill. App. 3d 25, 35-36, 687 N.E.2d 1080, 1087 (1997). "An abuse of discretion occurs only where no reasonable person could agree with the position taken by [the] trial court." In re Marriage of Ackerley, 333 Ill. App. 3d 382, 395, 775 N.E.2d 1045, 1057 (2002).

Harry contends that the trial court should have deviated downward from the statutory guidelines (see 750 ILCS 5/505(a)(1) (West 2000)) because 20% of his net income provides a child support level substantially greater than the reasonable needs of the child. We recognize that there is one Illinois Supreme Court case, In re Marriage of Bussey, 108 Ill. 2d 286, 483 N.E.2d 1229 (1985), where the court affirmed a trial court's decision to establish a child support obligation below the statutory guidelines' minimum. Our research, however, has not revealed any Illinois Supreme Court case that has reversed a trial court's decision establishing child support at the statutory guidelines' minimum.

Section 510(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that a substantial change in circumstances will justify a modification of child support. 750 ILCS 5/510(a)(1) (West 2000). The burden of showing that a substantial change in circumstances has occurred is on the moving party. See In re Marriage of Bean, 181 Ill. App. 3d 671, 673, 537 N.E.2d 342, 344 (1989). A court may increase the amount of child support solely on the basis of a parent's increased ability to pay. See In re Marriage of Bean, 181 Ill. App. 3d at 674, 537 N.E.2d at 344-45. Additionally, it can be presumed that the cost of raising a child increases as the child grows older. See In re Marriage of Riegel, 242 Ill. App. 3d 496, 499, 611 N.E.2d 21, 23 (1993).

Section 505(a)(1) of the Act sets forth guidelines for determining the percentage amount of child support. 750 ILCS 5/505(a)(1) (West 2000). Section 505(a)(2) then provides:

"(2) The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but ...


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