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In re Marriage of Marsh

Court of Appeals of Illinois, Second District

December 26, 2013

In re MARRIAGE OF SUSANNE MARSH, Petitioner-Appellant,
v.
THOMAS MARSH, Respondent-Appellee. and

Held [*]

The money respondent received from the sale of stock that was gifted to him by petitioner’s father during the parties’ marriage was not “income” for purposes of respondent’s child support obligation, since the stock was sold at a “loss” and no gain or profit resulted, and, further, the trial court properly denied the rule to show cause petitioner filed against respondent alleging that he failed to comply with his child support obligation with regard to the “additional income” he allegedly received from the sale of the stock.

Appeal from the Circuit Court of McHenry County, No. 11-DV-1069; the Hon. Mark R. Gerhardt, Judge, presiding.

Tamara A. Marshall, of Zanck, Coen, Wright & Saladin, P.C., of Crystal Lake, for appellant.

Jay K. Filler, Jr., of Filler & Associates, of Marengo, for appellee.

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.

OPINION

HUDSON JUSTICE

¶ 1 Petitioner, Susanne Marsh, filed a petition for a rule to show cause and for attorney fees against respondent, Thomas Marsh, claiming that respondent failed to comply with his child support obligations. The trial court denied the petition, and petitioner timely appealed. The sole issue on appeal is whether money received by respondent from the postdissolution sale of certain shares of stock that he owned prior to the dissolution constitutes "income" for purposes of child support under section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/505(a)(3) (West 2012)). We find that it does not, and thus we affirm.

¶ 2 I. BACKGROUND

¶ 3 On July 23, 2012, the 24-year marriage of petitioner and respondent was dissolved. At the time of dissolution, the parties had three children, one of whom was a minor. The judgment of dissolution incorporated the parties' marital settlement agreement (MSA). The MSA provided, inter alia, that respondent would retain ownership of "[h]is shares owned in Wisted's Supermarket." (There was an identical provision for petitioner to retain ownership of "[h]er shares owned in Wisted's Supermarket.") In addition, the MSA included the following provisions concerning child support:

"A. [Respondent] shall pay to [petitioner], as and for the support of the minor child, the sum of $731 per month commencing April[ ] 2012. [Respondent's] child support payments will be offset against [petitioner's] maintenance payments . As a result of this offset, the amount to actually be withheld from [respondent's] paycheck shall be $231 per month.
B. In addition to the specific dollar amount in paragraph one of this order, and also retroactive to include April of 2012, [respondent] shall pay 20% of all additional income, every three months, and shall provide [petitioner] income records sufficient to determine and enforce the percentage amount of such additional support."

ΒΆ 4 On February 7, 2013, petitioner filed a petition for a rule to show cause and for attorney fees. According to the petition, on December 28, 2012, respondent received $275, 000 in income from the sale of his shares of Wisted's stock and failed to pay petitioner 20% of that income as ...


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