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In re Keon C.

December 10, 2003


Appeal from Circuit Court of Vermilion County- No. 01F27 Honorable Claudia S. Anderson, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough


Respondent, Arian Keon Clark, appeals the trial court's order (1) setting child support at $8,500 a month, (2) ordering him to pay all uncovered medical expenses for Keon C., born February 29, 2000, (3) ordering him to pay attorney fees, and (4) finding him in indirect civil contempt. We affirm as modified and remand with directions.


In February 2001, petitioner, Jamie Hall, filed a petition to establish a parent and child relationship on behalf of Keon C., alleging that respondent was the minor's natural father. In July 2001, respondent admitted the allegation of paternity. In August 2001, the trial court entered a temporary order, granting petitioner custody of Keon C. subject to respondent's visitation rights, ordering respondent to pay $3,000 a month in temporary child support to be due by the first day of each month beginning in July 2001, and ordering respondent to pay all medical expenses on behalf of Keon C.

In October 2002, the trial court held a hearing on all issues. The record demonstrates that the parties lived together from March 1999 to September 2000, six months of which were after Keon C. was born. When respondent played professional basketball with the Denver Nuggets, the parties lived in Denver, Colorado, in a four- or five-bedroom apartment that respondent purchased and for which he paid approximately $2,200 per month. At the time of the hearing, petitioner was 25 years old and rented a three-bedroom apartment in Indianapolis, Indiana, where she resided with Keon C. and her eight-year-old son. Petitioner worked part-time at Methodist Hospital, earning $9.93 per hour, and attended Ivy Tech State College in its graphic design program, expecting to graduate in December 2003. Petitioner's financial affidavit revealed that her net monthly income was $731.64, her expenses were $4,220.97, $282.65 of which were educational expenses. She estimated that she spent "maybe" $1,000 a month for Keon C., but admitted that she was estimating, and she really did not "have any idea." Petitioner admitted that respondent does have health insurance for Keon C., and respondent had paid to date all the uncovered medical expenses for Keon C.

In his financial affidavit, respondent listed $16,246.32 in monthly expenses ($3,000 of which was for child support) and $58,404.75 in net monthly income. The record reveals that in 2001, respondent earned $1.4 million. Respondent testified that as of October 1, 2002, he was moving to Sacramento, California, where he would be employed as a professional basketball player with the Sacramento Kings. Effective November 1, 2002, his salary would increase to $4.5 million. He incurred approximately $45,000 in business expenses per year. He rented a four-bedroom house with a basement in California for which he paid approximately $2,000 in monthly rent.

On October 18, 2002, the trial court entered an order establishing, in part, child support at $8,500 a month, which amounted to a downward deviation from the full 20% set forth by statute. The court directed the parties to calculate the arrearage owed back to March 1, 2001. The court ordered the calculation to be submitted to the court within five days from entry of its order, and the arrearage was to be "figured up to the first payment of support under this [o]rder, which is the first Friday in November 2002." The court further ordered the resulting arrearage to be paid within 30 days of the entry of the order. Both parties submitted their own child-support computations based on respondent's gross income of $1.4 million, as reported on his 2001 income-tax return.

On November 1, 2002, petitioner filed a request for attorney fees of $4,387, which the trial court granted. On November 15, 2002, respondent filed his notice of appeal, appealing that part of the court's order (1) establishing child support at $8,500 per month retroactive to March 1, 2001, and (2) ordering him to pay petitioner's attorney fees. On November 18, 2002, petitioner filed a notice of hearing for status and set the matter for hearing for December 5, 2002.

On December 5, 2002, neither respondent nor his attorney appeared for the status hearing. After the hearing, that same day, petitioner filed a petition for rule to show cause, requiring respondent to show why he should not be held in contempt of court for failing to obey the court's October 18, 2002, order, specifically, failing to (1) make his December 2002 child support payment of $8,500, (2) pay the $125,000 arrearage by December 2, 2002, and (3) provide an insurance card to petitioner for Keon C. The petition further alleged that a hearing had been scheduled for 8:30 a.m., December 5, 2002, and respondent's attorney failed to appear. On December 5, 2002, the trial court issued a rule to show cause, ordering respondent and his attorney to appear before the court on December 11, 2002, or be subject to a body attachment.

Respondent filed a response to the petition for rule to show cause, arguing that (1) his notice of appeal automatically stayed the trial court's October 8, 2002, order; (2) at the time the notice for hearing on the status and the hearing on the status was held, the trial court no longer had jurisdiction because of the notice of appeal he filed; and (3) the rule to show cause issued December 5, 2002, was done without notice to respondent's attorney and, therefore, violated respondent's due process rights. Respondent argued that his attorney received the petition for rule to show cause and the rule to show cause by ordinary mail late Monday afternoon, December 9, 2002, less than 48 hours before the scheduled hearing at 2:45 p.m., December 11, 2002.

In January 2003, the trial court entered an order on the rule to show cause, finding (1) that the notice of appeal did not stay the enforcement of money judgment because no appeal bond accompanied it and no motion for stay of enforcement was filed, and (2) respondent in contempt for his failure to abide by the court's October 18, 2002, order. In addition, the court provided a purge provision. In January 2003, respondent filed a motion for leave to file an amended notice of appeal, which this court granted.

This appeal followed.


A. Child Support

Respondent first complains that the trial court did not sufficiently deviate downward from the statutory guideline (see 750 ILCS 5/505(a)(1) (West 2000)) in setting child support. Specifically, respondent argues that the trial court erred in establishing child support at $8,500 per month, such an amount results in a windfall to both petitioner and her other child, and is excessive. Respondent posits petitioner "should certainly be able to provide Keon [C.] with a comfortable life-style at $3,000 per month." Respondent acknowledges that he earns a large income; however, he contends that his large income does not justify awarding a child support obligation 8 1/2 times greater than Keon C.'s needs, especially because petitioner is also supporting another child from a different relationship. Respondent argues that the $3,000-per-month amount he proposed takes into account the standard of living Keon C. would have enjoyed had the parties' relationship not ended, as well as the other factors outlined in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a) (West 2000)). We disagree.

Section 505(a)(1) of the Marriage Act sets forth guidelines for determining the percentage amount of child support. 750 ILCS 5/505(a)(1) (West 2000). Section 505(a) of the Marriage Act (750 ILCS 5/505(a) (West 2000)) creates a rebuttable presumption that a specified percentage of a non-custodial parent's income represents an appropriate child-support award. In the case of one child, the minimum amount of child support that the trial court should order is 20% of the non-custodial parent's net income. "Compelling reasons must exist in order to overcome that presumption and permit the court to deviate from the guidelines." In re Marriage of Stanley, 279 Ill. App. 3d 1083, 1085, 666 N.E.2d 340, 341 (1996); see also In re Marriage of Ackerley, 333 Ill. App. 3d 382, 396, 775 N.E.2d 1045, 1057 (2002). The question of whether to deviate downward from the statutory guidelines when dealing with above-average incomes presents a dilemma, and the court must balance competing concerns. In re Marriage of Lee, 246 Ill. App. 3d 628, 643, 615 N.E.2d 1314, 1326 (1993). A determination on the appropriate amount of child support will be reversed only if the trial court abused its discretion. In re Marriage of Takata, 304 Ill. App. 3d 85, 96, 709 N.E.2d 715, 723 (1999).

1. Windfall and Keon C.'s Needs

Respondent complains that the child support is a windfall to petitioner and is more than is necessary to meet Keon C's needs. We disagree. This court in In re Marriage of Bush, 191 Ill. App. 3d 249, 261, 547 N.E.2d 590, 597 (1989), emphasized that a child-support award is not intended as a windfall to the custodial parent. In that case, however, the facts involved a situation where both parents' individual incomes were more than sufficient to meet the child's needs and allow him the lifestyle he would have enjoyed if the parties had not divorced. The court's holding was clearly limited to such circumstances. The court stated:

"We now hold that where the individual incomes of both parents are more than sufficient to provide the reasonable needs of the parties' children, taking into account the life-style the children would have absent the dissolution, the court is justified in setting a figure below ...

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