No. 06 D 8453 Appeal from the Circuit Court of Cook County Kennedy, Judge Presiding. Honorable Kathleen G.
The opinion of the court was delivered by: Justice Karnezis
JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Harris concurred in the judgment and opinion.
Respondent Martin Gibbons McGrath appeals from an order of the circuit court in favor of petitioner Mary Ellen McGrath, in which Martin was ordered to pay $2,000 a month in child support for the parties two children. On appeal, Martin contends: (1) the circuit court erred in ruling that money withdrawn from Martin's savings accounts constituted "net income" for purposes of determining child support; (2) the circuit court erred in determining Martin's child support obligation should be $2,000 a month; and,(3) the circuit court erred in denying Martin's motion to reconsider. For the following reasons, we affirm the judgment of the circuit court.
We set forth briefly only those facts relevant to the issues presented on appeal. On September 14, 2007, the court entered the Judgment for Dissolution of Marriage incorporating the parties' marital settlement and joint parenting agreements. The agreements provided that the parties twin children, born on August 9, 2001, would reside with Mary Ellen, and the parties agreed to contribute to the children's various expenses. At the time of the judgment, Martin was unemployed so the issue of child support was reserved. The agreements additionally provided that the "issue of additional contribution by Martin to the support of the parties' children may be addressed by either party pursuant to agreement or petition to the court."
Subsequently, on July 9, 2008, Mary Ellen petitioned the court to determine child support and other relief. After the parties completed discovery, a hearing was held. Martin testified at the hearing that he was currently unemployed and lives off the assets that were awarded to him as his part of the marital estate. Each month he withdraws about $8,500 a month from his savings accounts to meet his expenses. Based on Martin's testimony and the evidence presented at the hearing, the court ordered Martin to pay $2,000 a month in child support. Martin appeals from the court's order.
The guidelines in section 5/505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 2010)) provide that a parent with two children should pay 28% of their "net income" for child support. The Act allows the court to deviate from the guidelines depending upon several factors including the financial resources and needs of the child, the financial resources and needs of the custodial parent, and the financial resources and needs of the non-custodial parent. 750 ILCS 5/505 (a)(2) (West 2010). The Act defines "net income" as "the total of all income from all sources," minus various deductions not relevant here. 750 ILCS 5/505 (West 2010). We review the circuit court's determination of what constitutes "net income" under the Act de novo. In re Marriage of Rogers, 213 Ill. 2d 129, 136 (2004).
Martin first contends on appeal that the money he withdraws every month from his savings accounts for his monthly living expenses should not be considered income. He argues that the money is not income because he is merely spending money he already has and is not earning or receiving any type of monetary gain.
Martin relies on In re Marriage of O'Daniel, 382 Ill. App. 3d 845 (2008), for support. In O'Daniel, the fourth district of this court held that money withdrawn from an IRA account did not constitute income under the Act because the money in the account was self-funded and was basically no different than a savings account. O'Daniel, 382 Ill. App. 3d at 850. Martin argues that we should follow O'Daniel and also find that money withdrawn from his savings accounts do not constitute income under the Act.
Martin also acknowledges however, that there is a second and first district case that held to the contrary. Prior to O'Daniel, the second district held in In re Marriage of Lindman, 356 Ill. App. 3d 462, 468 (2005), that IRA withdrawals are income pursuant to the Act. After O'Daniel was decided, the first district also held in In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 232 (2008), that IRA withdrawals are income pursuant to the Act. Martin argues we should follow the holding in O'Daniel rather than Lindman and Eberhardt, despite Eberhardt being decided by the first district of this court.
We understand Martin's comparison between his savings accounts and an IRA and his reliance on O'Daniel. However, the issue presented in this case does not require us to follow or deviate from the holdings in O'Daniel or Lindman and Eberhardt. Here, we need only determine whether the money Martin withdraws from his savings accounts constitutes "net income" under the Act. We answer this question by looking at the Act.
As noted above, "net income" is defined as "the total of all income from all sources." An unemployed parent who lives off regularly liquidated assets is not absolved of his child support obligation. The legislature has adopted an expansive definition of what constitutes "net income." There are no provisions in the Act excluding Martin's monthly withdrawals from the definition of "net income." The circuit court has discretion in the appropriate case to order child support based on regularly liquidated assets used to fund expenses. Absent an abuse of discretion, we will not disturb the circuit court's finding that money from such assets constitutes ...