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In Re Marriage of Lynne P. Kincaid

July 3, 2012

IN RE MARRIAGE OF LYNNE P. KINCAID, PETITIONER-APPELLEE, AND
BRIAN R. KINCAID,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois Circuit No. 07-D-547 Honorable Robert J. Baron Judge, Presiding

The opinion of the court was delivered by: Justice Lytton

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

Justices Carter and McDade concurred in the judgment and opinion.

OPINION

¶ 1 Less than a year after a judgment for dissolution of marriage was entered, dissolving the marriage of Brian and Lynne Kincaid, Lynne filed a motion to vacate or modify the judgment. Thereafter, Lynne filed a petition for removal, seeking to remove her and Brian's children to Austin, Texas. Several months later, Lynne filed a petition for rule to show cause for indirect civil contempt against Brian for his failure to pay counseling expenses for the children. Following hearings, the trial court granted Lynne's motion to modify and increased Brian's unallocated family support from $5,500 per month to $9,800 per month based on Brian's gross income. The trial court also granted Lynne's petition for removal and ordered Brian to pay half of the children's counseling expenses. We affirm the trial court's orders granting Lynne's petition for removal and requiring Brian to pay half of the children's counseling bills. We reverse the trial court's order increasing Brian's unallocated support and remand for the trial court to determine Brian's net income before modifying the support award.

¶ 2 Brian and Lynne Kincaid were married in March 1995. They had two children: Peri was born in 1995, and Colton was born in 1997. In 2001, Brian and Lynne purchased a home in Frankfort, Illinois. In 2007, Lynne filed a petition for dissolution of marriage.

¶ 3 In September 2008, a judgment for dissolution of marriage was entered, dissolving the couple's marriage. Incorporated in the judgment were a marital settlement agreement and a joint parenting agreement. The marital settlement agreement required Brian to pay Lynne "unallocated family support" of $5,500 per month for 48 months, based on Brian's income of $125,000 per year. The agreement awarded the marital residence to Lynne. She was required to refinance the home within two years or, if unsuccessful, sell it. The marital settlement agreement also provided: "All health expenses of the children *** that are not paid by insurance shall be paid equally by BRIAN and LYNNE."

¶ 4 According to the joint parenting agreement, the parties shared joint custody of Peri and Colton. Lynne was designated as the children's residential parent, and Brian was granted parenting time with the children every other weekend, one night each week, three weeks in the summer, and alternating holidays. The joint parenting agreement further provided:

"The parties agree to discuss all health, education, and religious training issues, prior to any major decision being made. *** After discussion and failure of the parties to reach accord on a major decision, the party seriously objecting to the plan of the other party shall be responsible for instituting mediation, and, if necessary, thereafter and as a last resort, Court proceedings."

¶ 5 In July 2009, Lynne discovered that Brian's income had increased substantially. As a result, she filed a motion seeking to have the dissolution judgment vacated or modified to increase Brian's support payments.

¶ 6 In July 2010, Lynne was offered a position with a company based in Austin, Texas. After Brian objected to Lynne moving to Austin with the children, Lynne filed a petition to remove the children to Austin.

¶ 7 In April 2011, Lynne filed a petition for rule to show cause for indirect civil contempt against Brian because he refused to pay counseling bills for the children. The bills were for counseling sessions the children attended with Jean Gray, a therapist.

¶ 8 Hearings on Lynne's motion and petitions were held in May and June 2011. At the hearings, Brian presented evidence showing that his gross income was $253,258 in 2009, and $294,729 in 2010. Lynne submitted an income/expense affidavit showing her monthly expenses to be $11,824.

¶ 9 At the hearing, Lynne testified that she is from Texas. She has no family in Illinois. She has approximately 50 family members in the Austin, Texas, area, including her mother and brother. She and the children visit Texas several times a year and have stayed there for up to a month at a time.

¶ 10 Lynne was a stay-at-home mother throughout her marriage to Brian. In 2007, she obtained employment with the Village of Frankfort. She was laid off from that job in 2009, but continued to perform projects for the village and other entities on a part-time basis. In 2010, she began taking projects from a marketing firm and worked approximately 100 hours per month. Her income in 2010 was $32,000.

¶ 11 In July 2010, Lynne received a job offer in Austin. She met with Brian to discuss the possibility of her and the children moving to Texas. Brian initially told her that he had no problem with the move. However, the day before Lynne and the children were scheduled to move, Brian told her that he would consent to the move only if she withdrew her motion to increase support. Lynne decided not to move and lost that job opportunity.

¶ 12 In October 2010, Lynne and the children moved from the marital home to a townhouse in Frankfort because Lynne was unable to refinance the home. Lynne pays $2,300 in rent for the townhouse. The townhouse is located outside the school district the children have attended since 2001. The children were able to attend school in their previous district during the 2010-11 school year, but they will be unable to do so in the future unless Lynne finds housing within the school district. Lynne has not been able to find suitable housing she can afford in the school district.

ΒΆ 13 In March 2011, Lynne was offered another job in Austin, Texas. Her salary for that job would be $3,000 per month, and she would still be able to perform consulting work for other clients. She estimated that her ...


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