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In re Marriage of Newberry

February 20, 2004

[5] IN RE MARRIAGE OF SUSAN NEWBERRY, PETITIONER-APPELLANT, AND DAVID NEWBERRY, RESPONDENT-APPELLEE.


[6] Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, No. 02-MR-127 Honorable Alan G. Blackwood, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Slater

[8]  Petitioner Susan Newberry appeals from orders entered by the circuit court of Rock Island County modifying child support and denying her motion to reconsider. The issues on appeal are whether the court (1) improperly gave respondent David Newberry credit for an adoption subsidy paid by the state of Iowa for the support of three of the parties' minor children; (2) improperly refused to include income from David's second job in determining the amount of his net income available for support; and (3) should have given Susan credit for the cost of the children's health insurance. We affirm.

[9]  FACTS

[10]   The record shows that the parties' marriage was dissolved in Scott County, Iowa, on June 23, 1997. At the time of their divorce, the parties had five children. The three younger children were adoptees for whom the state of Iowa paid a monthly subsidy. An amended divorce decree entered September 24, 1997, contained the following provisions relevant to this appeal:

[11]  
"4. Petitioner receives from the state of Iowa the sum of approximately $1,450.00 per month as and for the support of the three minor children adopted by the parties. This Court finds that based on the payment of this separate support for the minor children that it is just and equitable for the Court to deviate from the Child Support Guidelines in calculating Respondent's child support obligation. Respondent's obligation shall be based on the two children, Claire and Margaret, and excluding the three children, Andrew, David, and Kristen, for whom separate support is received."

[12]   The Iowa court ordered David to pay $401.43 bi-monthly in child support and ordered Susan to provide medical, dental and hospital insurance for the children.

[13]   On May 30, 2002, Susan filed a petition in the circuit court of Rock Island County stating that both parties had moved to Illinois. She requested the court to register the Iowa decree and assume jurisdiction over the parties and subject matter of the Iowa judgment. The court granted the petition in an agreed order of June 11. On October 11, 2002, Susan filed a petition to modify child support, claiming that both the expenses of the children and David's income had increased substantially. *fn1

[14]   The circuit court subsequently entered an order, relevant portions of which follow:

[15]  
"Petitioner registered the Iowa judgment and now seeks to modify the support order according to Illinois guidelines. Specifically, she seeks support based on five children, or 45% of respondent's net income. She still receives the monthly benefit from Iowa, now about $1,700, but argues respondent should not now receive any credit for that benefit. The court notes that the work-related incomes of both parties are relatively close.
[16]  
*** The parties agree that respondent has net income for Illinois child support purposes, of $1,608.77 bi-monthly. Under the guidelines, 45% is $726.60, and 25% is $402.20. Thus, the question: what amount of child support is appropriate?
[17]  
As indicated, no Illinois case addresses this issue. In re Marriage of Henry, 156 Ill. 2d 541 (1993), *** held that Social Security *** benefits are based upon the earnings of the recipient, and a benefit received *** by recipient/payor spouse's dependent satisfied the payor's support obligation.
[18]  
On the other end of the spectrum is In re the Marriage of Robertson, 151 Ill. App. 3d 214 (1st Dist. 1986), which held that voluntary payments to payor's children, from his mother's testamentary trust, should not be credited against his child support obligation.
[19]  
The payment from the State of Iowa in this case is somewhere between gratuitous and an earned benefit. Without question, however, it is a benefit generated by both parents' willingness to adopt these children and the purpose of it is to help support them. In this posture, credit for it should be given to respondent when setting his support in this State.
[20]  
The court finds that the Iowa benefit satisfies respondent's support obligation to those three children. Accordingly, support is set at 25% of his net ...

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