Appeal from the Circuit Court of Cook County. Honorable Eileen Mary Brewer, Judge Presiding.
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Murphy and Steele concurred in the judgment and opinion.
The petitioner, Stacey Streur, appeals from an order of the circuit court modifying the child support obligation of respondent, John Streur, retroactive to May 1, 2007, and from two orders dismissing her petition to vacate judgment under section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)), which sought to vacate the marital settlement agreement provisions in the judgment of dissolution of marriage. Petitioner contends that the child support award should have been made retroactive to June 2, 2004, the date she initially filed a petition to modify and increase child support, and that the trial court erred in dismissing her section 2-1401 petition on res judicata and statue of limitations grounds.
Respondent asserts that the trial court did not err in dismissing petitioner's section 2-1401 petition or in awarding child support retroactive to May 1, 2007, but did err in ordering him to pay petitioner's $127,000 attorney fee. For the reasons set forth below, we modify the trial court's order modifying respondent's child support obligation, making it retroactive to April 1, 2005, rather than May 1, 2007, and affirm the remaining trial court orders.
The procedural history in this case is extensive, and only those facts relevant to the issues raised in this appeal are addressed here. A judgment dissolving the parties' marriage was entered by the trial court on April 18, 2000. The judgment incorporated a marital settlement agreement and a joint parenting agreement, which awarded the parties joint custody of their three minor children, with petitioner being the primary residential parent. Two provisions of the marital settlement agreement, section 4, addressing child support and section 8, addressing unallocated support, are pertinent to this appeal and provide as follows:
A. From JOHN's unallocated maintenance and child support payments, as provided in paragraph 8 below, STACY shall fully provide for [the minor children's] support without any further contribution from JOHN, except as otherwise provided in this Agreement.
B. JOHN shall pay the following expenses as support for [the minor children]:
(i) Ordinary and extraordinary medical, dental and optical expenses, as provided in paragraph 5 of this Agreement;
(ii) Major medical, dental and hospitalization insurance, as provided in paragraph 5 of this Agreement; and
(iii) [The minor children's] entire summer camp expenses for summer 2000 only.
C. JOHN's obligation to pay for [the minor children's] support shall terminate as to each child upon the first of the following events:
(i) Completion of the child's high school education or attaining the age of 19, whichever is first to occur;
(ii) The child's otherwise becoming emancipated; or
(iii) As otherwise ordered by a court of competent jurisdiction.
D. Upon termination of STACY's right to receive unallocated maintenance and child support the parties shall agree to an appropriate amount of child support. If the parties are unable to agree, the issue of child support shall be determined by a court of competent jurisdiction.
E. JOHN and STACY agree that child support pursuant to the guidelines contained in 750 ILCS 5/505 is not appropriate in light of the other financial provisions of this Agreement. JOHN and STACY agree and acknowledge that provisions of this Agreement are adequate to provide [their minor children] with their reasonable needs.
8. UNALLOCATED MAINTENANCE AND CHILD SUPPORT
A. Commencing April 1, 2000 and continuing through March 1, 2005, JOHN shall pay STACY unallocated maintenance and child support based on his annual earned income. For purposes of calculating unallocated maintenance and child support, JOHN's annual earned income shall be defined as all taxable income received from the Burridge Group, L.L.C. or any subsequent employer, or as a result of his ownership profit points in the L.L.C., including salary, bonuses, and net profit distributions from his Burridge Group L.L.C. profit points, but not including 'phantom income' attributable to JOHN for federal and state income tax purposes, but not actually received by him. By way of example, JOHN's annual earned income shall not include business travel and expenses and medical insurance premiums attributable to him as income. JOHN shall not do anything to diminish or defer his income so as to reduce support under this paragraph.
B. The unallocated maintenance and support shall be paid as follows:
i) JOHN shall pay STACY 100% of his first $100,000 of earned income;
ii) JOHN shall pay STACY 0% of his earned income between $100,000 and $200,000;
iii) JOHN shall pay STACY 30% of his earned income in excess of $200,000.
iv) The amount of family support in partial years covered by this Agreement (year 2000 and year 2005) shall be determined using a prorated percentage of JOHN's annual gross income. JOHN's annual gross income shall be prorated in partial years covered by the Agreement. Family support in the 9 months covered in the year 2000 shall be based on 75% of JOHN's annual gross ...