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In re Marriage of Schomburg

Court of Appeals of Illinois, Third District

December 14, 2016

In re MARRIAGE OF JULIE SCHOMBURG, Petitioner-Appellee, and DUANE OSLAND, Respondent-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, No. 10-F-356 Illinois Honorable Thomas A. Keith, Judge, presiding.

          JUSTICE CARTER delivered the judgment of the court. Presiding Justice O'Brien and Justice Wright concurred in the judgment and opinion.

          OPINION

          CARTER JUSTICE

         ¶ 1 This appeal arises from posttrial proceedings stemming from the dissolution of the marriage between the respondent, Duane Osland, and his first ex-wife, the petitioner, Julie Schomburg. Duane appeals the trial court's denial of his request for reimbursement of monies garnished from his severance and bonus checks, which had been paid to Julie for child support and child support arrearages. On appeal, Duane argues that he not only has an obligation to pay child support to Julie, but he also has an obligation to pay his child support for his daughter from his second marriage with Tunde Osland, his second ex-wife. Tunde is not a party in this case. Duane requests this court to (1) reapportion the 50% lien amounts that were placed on his bonus and severance checks and redistribute the money equally between his two current child support orders and (2) vacate the child support order from his other divorce case (case number 14-D-03) ordering him to pay $3452.42 from his severance check to his second ex-wife, Tunde. We affirm the trial court's denial of Duane's petition, in which he requested the reallocation of the garnished amounts that he had styled as a petition to modify child support.

         ¶ 2 FACTS

         ¶ 3 Duane and Julie were married on May 22, 1993. Two children were born to the parties during their marriage. On March 31, 2003, their marriage was dissolved pursuant to a court order entered in Clayton County, Iowa. At the time of the parties' divorce, Duane's income was $800, 000 per year. Duane was ordered to pay Julie child support in the amount of $4000 per month to commence on April 1, 2003, with the amount reduced to $2730 per month upon the oldest child graduating from high school. Duane was also ordered to pay Julie spousal support in the amount of $8300 per month for eight years and to pay Julie "as a cash award" the sum of $750, 000 payable in three yearly installments of $250, 000, with 10% interest to accrue on any delinquent payments.

         ¶ 4 On October 7, 2010, in Iowa, Julie filed a "Child Support Enforcement Transmittal #1- Initial Request" for the enforcement of the Iowa support order in Illinois. Julie alleged that Duane's support obligation was $12, 400 per month and that there were arrearages in the amount $523, 391 for a period through February 3, 2010. In support of the request for enforcement in Illinois, Julie attached the affidavit of Wendy Leuenberger of the Iowa Child Support Recovery Unit, who averred that she had calculated the child support delinquency in this case to be $523, 391 as of February 3, 2010. Julie also attached a printout from the Iowa collection and reporting system showing that Duane had paid her support in the amount of $28, 433 in 2009, $300 in 2008, $155, 351.41 in 2006, $44, 013 in 2005, $156, 859 in 2004, and $154, 552.59 in 2003. Duane filed a pro se objection to the validity of Julie's claims, challenging the supporting documentation. On May 26, 2011, the trial court in Tazwell County, Illinois, found that Duane had not established a defense to Julie's registration request. Pursuant to the Uniform Interstate Family Support Act (750 ILCS 22/602 (West 2010)), the Iowa child support order was registered in Tazewell County, Illinois by the Illinois Department of Healthcare and Family Services (IDHFS).

         ¶ 5 On October 28, 2014, in Illinois, Duane filed a petition to modify child support in light of one of the parties' minor children becoming emancipated and in light of Duane having a decrease in earnings. Duane indicated the corporation, from which he had been earning $1.5 million per year, had been dissolved, and he was currently employed by Caterpillar, Inc. "earning a substantial wage." The trial court reduced Duane's child support obligation to $2730 for the period of April 1, 2012 to October 28, 2014, and thereafter to $1209 per month.

         ¶ 6 On January 26, 2015, the parties entered an agreed order indicating that Duane's maintenance obligation to Julie was terminated retroactive to July 12, 2006 (the date of Julie's marriage to her new husband), with the parties "attempting to calculate arrearages/credits and settlement amounts owed." Julie claimed that as of August 31, 2014, there was a "support/maintenance arrearage of $650, 105.65" with that amount including the two property installments of $250, 000 that Duane had failed to pay in 2004 and 2005. In support of her petition for a rule for Duane to show cause why he should not be held in contempt for failing to comply with the divorce decree, Julie attached a notice from the IDHFS dated September 30, 2014, indicating Duane was responsible for paying "child support" in this case in the amount of $650, 105.65.

         ¶ 7 On March 6, 2015, Duane filed a petition for redetermination of arrearages. Duane conceded that he did not make the court-ordered $250, 000 installment payments in 2004 and 2005 due to an economic downturn in the auto industry, resulting in the bankruptcy of his corporation but argued his overpayment of his maintenance obligation for eight years created a sizeable credit toward the outstanding balance of his support obligations. He also filed an emergency motion for "alternative satisfaction" of his support obligation, indicating that he must travel out of the country for work purposes but was unable to do so due to his inability to renew his passport because of the "large and erroneous support arrearage." Duane requested that he be allowed to satisfy any remaining balance owed to Julie with a life insurance policy naming Julie as the beneficiary because the loss of his employment would have a substantial impact on the two children for whom he was paying child support.

         ¶ 8 On March 6, 2015, the trial court entered an order regarding Duane's arrearages. The trial court found, over the objection of Julie, that the arrearage shown by the State of Illinois for over $650, 000 was "erroneous" but the actual arrearage or overage had not yet been calculated. The trial court noted that Duane "remains current in his child support obligation and that his maintenance obligation terminated in 2006." In a separate order the trial court listed Duane's arrearage as less than $5000, not as an actual calculation of his arrearage, but to show that encumbrances on his ability to renew his passport were erroneous. On April 2, 2015, Julie filed a motion to vacate the trial court's order of March 6, 2015, arguing that a full evidentiary hearing on the amount of Duane's arrearages was required.

         ¶ 9 On April 17, 2015, Duane filed a petition to terminate child support and a request for reimbursement of overpayments. In support, Duane attached a letter dated March 24, 2015, from the Office of the Illinois Attorney General requesting information as to whether Duane was in arrears as to child support in the amount of $172, 595.79. He also attached a further determination letter from the assistant attorney general indicating a determination was made that Duane had overpaid Julie $360. Duane also attached verification of those additional payments, which showed Julie had received a bond turnover of $9, 772.38 from Duane on July 26, 2007, and $553, 337.89 from the bankruptcy trustee to be paid toward the former property settlement. In response, Julie claimed that the $553, 337.89 disbursed to her by the bankruptcy trustee had been processed through the proper agencies and was previously calculated in the alleged arrearages. On April 29, 2015, by agreement of the parties, the trial court vacated its order finding Duane's arrearage to be less than $5000, with all issues related to arrearages and overpayment reserved.

         ¶ 10 On September 18, 2015, Julie filed a motion for contempt, claiming that Duane failed to notify of her of a raise he received in April 2015 and failed to notify her of a $31, 270.59 bonus he received in March 2015. She also filed a motion to modify child support upward as a result of Duane's pay increase and bonus. On September 30, 2015, Duane filed a petition to modify his child support obligation downward because he had been notified that he would be terminated from his employment, which he claimed was due to his inability to travel internationally as the result of being unable to renew his passport because of alleged child support arrearages. Duane indicated that he was paying Julie $1209 per month in child support and paying Tunde $871.81 per month for child support and $500 per month for spousal support. Duane requested a reduction in his monthly child support obligation to Julie.

         ¶ 11 On December 29, 2015, the trial court entered an order addressing several pending issues. The trial court found that Duane was terminated from Caterpillar through no fault of his own, with the termination due to a reduction in workforce as opposed to his inability to obtain a passport or from some kind of misconduct. Since the termination was not Duane's fault, the trial court considered his request for a downward modification of child support and reduced Duane's child support to Julie to $116 per week (20% of his $580 per week of unemployment pay), beginning on January 1, 2016. The trial court did not regard Duane's short-lived pay increase prior to his termination to be a substantial change of circumstances and denied Julie's motion to modify child support upward. The trial court ruled that Duane's gross severance check was $34, 811, of which he would owe Julie "a one time lump sum payment in child support of $4455" (20% of the net pay of the severance check). The trial court noted that "the most helpful evidence to assist the Court" in determining Duane's child support arrearage was the State of Illinois Child Support Services "support calculation worksheet" ...


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