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In Re Marriage of Mary Ellen Mcgrath

May 24, 2012


The opinion of the court was delivered by: Justice Thomas

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.


¶ 1 At issue is whether money that an unemployed parent regularly withdraws from a savings account may be included in the calculation of net income when setting child support under section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/505 (West 2010)). We hold that it may not.


¶ 3 On September 14, 2007, the circuit court of Cook County entered a judgment dissolving the marriage of petitioner Mary Ellen McGrath and respondent Martin McGrath. The dissolution judgment incorporated a marital settlement agreement and a joint parenting agreement. The agreements provided that the parties' twin children would reside with petitioner, and the parties agreed to contribute to the children's various expenses. Respondent was unemployed at the time that the judgment was entered, so the issue of child support was reserved. The agreements 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."

¶ 4 Petitioner subsequently petitioned the court to determine child support. Respondent testified at the hearing that he was currently unemployed and living off assets that were awarded to him as part of the marital estate. Each month he withdraws around $8,500 from his savings account to meet his expenses. In an order dated February 23, 2010, the circuit court ordered respondent to pay $2,000 per month in child support. The court explained that it was not imputing income to respondent, but was basing the amount of child support on "Martin's living expenses and the assets which are available to him to meet his living expenses."*fn1 In explaining its thoughts on the case from the bench, the circuit court stated:

"So there is case law in Illinois that provides that when one parent is receiving or obtaining money on a regular basis even if it's not from employment that it may be used and should be used as support for the children. So I believe that's the law, the case law that's applicable in this case and so I believe there is an obligation to support the children with this regularly coming in money."

¶ 5 Respondent moved to reconsider and vacate the support order.

The circuit court denied respondent's motion, and entered another written order that explained how the court had arrived at the $2,000 figure. The court stated:

"The entry of a child support order is discretionary, but the determination of the minimum guidelines child support amount is mandatory. See 750 ILCS 5/505(a). In the February 23, 2010 order the court based child support on the funds Martin McGrath accesses on a regular basis to support himself in lieu of earning an income. However, the court did not expressly begin, as it must, with a determination of the minimum amount of support using the guidelines. See 750 ILCS 5/505(a)(1). Although not explicit, the court effectively used Martin McGrath's passive net income of $8,500 per month, calculated the 28% guidelines, which is $2,380, and deviated downward from the guidelines by $380 per month to $2,000 per month without making the requisite finding that application of the guidelines would be inappropriate in this case and without stating the reasons for the variance from the guidelines. See ILCS 5/505(a)(2)."

¶ 6 The court further explained that it believed that its decision was supported by two appellate court cases, In re Marriage of Lindman, 356 Ill. App. 3d 462 (2005), and In re Marriage of Eberhardt, 387 Ill. App. 3d 226 (2008), which held that IRA disbursements could be included in a calculation of net income under section 505 of the Act. The court found that respondent's financial circumstances did not fit neatly into the statutory scheme because he was unemployed but using his assets to maintain a lifestyle in which his household expenses were similar to petitioner's expenses for a household of three. The court explained that respondent's "use of assets to maintain his lifestyle supports treating them as income and calculating a minimum amount of child support on that basis." The court thus concluded that respondent's monthly net income for child support purposes was $8,173.69-$8,500 that he withdraws from his savings account, plus $171.69 from interest and dividends, minus a $498 health and hospitalization premium. The statutory 28% of that amount was $2,288.63, and the court made a finding under section 505(a)(2) that this figure was inappropriate and should be adjusted downwards by $288.63.

¶ 7 Respondent appealed, and the Appellate Court, First District, affirmed. 2011 IL App (1st) 102119. Respondent argued in that court that it was error for the circuit court to include money he withdraws from his savings account in its calculation of his net income. Respondent relied on In re Marriage of O'Daniel, 382 Ill. App. 3d 845 (2008), in which the Fourth District rejected the holdings of the cases that the trial court relied on and held that the money withdrawn from an IRA is not income. The appellate court held that it did not need to resolve the conflict in the appellate court over whether IRA withdrawals can be considered income under section 505(a) because this case does not involve an IRA. 2011 IL App (1st) 102119, ¶ 10.

ΒΆ 8 The court explained that the money respondent withdraws from his savings account was properly included in the circuit court's calculation of "net income" because the statute's definition of "net income" is ...

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