In re MARRIAGE OF LARRY A. PLOWMAN, Petitioner-Appellant, and CARA R. LAWSON, Respondent-Appellee.
from the Circuit Court of Adams County No. 13D15 Honorable
Charles H. W. Burch, Judge Presiding
JUSTICE KNECHT delivered the judgment of the court, with
opinion. Justices Holder White and Steigmann concurred in the
judgment and opinion.
1 Petitioner, Larry A. Plowman, appeals from the trial
court's order setting child support, which considered a
personal injury settlement of respondent, Cara R. Lawson, as
income only to the extent it was attributable to lost
earnings. On appeal, Larry argues we should reverse the trial
court's order and remand for the trial court to consider
the entirety of the net proceeds from Cara's personal
injury settlement as income for child support purposes. We
reverse and remand.
2 I. BACKGROUND
3 In April 2005, Larry and Cara received a judgment of
dissolution in Texas. As part of that judgment, Cara was
awarded the majority of parenting time of the parties'
minor child, C.L. (born Oct. 24, 2004), and Larry was ordered
to pay child support. Thereafter, Cara and C.L. moved to
Illinois, and Larry moved to Nebraska.
4 In January 2013, Larry filed petitions to (1) enroll the
judgment of dissolution in Illinois and (2) modify parenting
time and allow C.L.'s removal to Nebraska. In February
2013, the trial court enrolled the judgment of dissolution
and ordered mediation. Following mediation, the court entered
an agreed order, granting Larry the majority of parenting
time and allowing him leave to remove C.L. to Nebraska. As
part of that order, the parties agreed to reserve the issue
of child support because Cara was a full-time student.
5 In March 2015, Larry filed a petition to set child support,
as Cara was no longer believed to be a full-time student.
During the course of discovery, Larry received information
suggesting Cara had recently received a personal injury
6 In June 2016, the trial court held a hearing on Larry's
petition to set child support. In part, Cara testified she
received a personal injury settlement after a car accident
that resulted in her sustaining four broken ribs, a broken
left wrist, and injuries to her leg requiring seven stitches.
After deducting attorney fees and other expenses, Cara
received a net amount of $158, 972.77. That money, Cara
testified, was for her pain and suffering and not loss of
income. When asked for her basis for concluding the money
related to only pain and suffering, Cara testified:
"Because I-it took a long time for my wrist to heal.
I'm a massage therapist. I couldn't work. I
couldn't do anything. I couldn't drive a whole lot,
you know. I was on pain medication."
testified she used the money from the settlement to purchase
a house, purchase a vehicle for herself, purchase a vehicle
for an ex-boyfriend, and pay debt and various legal expenses,
including fees for mediation and the services of a guardian
ad litem. Cara testified she also used the money to
purchase clothing and other items for C.L. when he visited.
At the time of the hearing, the money from the personal
injury settlement was depleted.
7 Larry requested the trial court consider the entirety of
the net proceeds from Cara's personal injury settlement
as income for the purpose of setting child support. Larry
acknowledged the Second District's decision in
Villanueva v. O'Gara, 282 Ill.App.3d 147,
150-51, 668 N.E.2d 589, 592-93 (1996), which found only the
amount of a personal injury settlement attributable to lost
earnings is income for child support purposes, but argued our
supreme court's subsequent decision in In re Marriage
of Rogers, 213 Ill.2d 129, 136, 820 N.E.2d 386, 390
(2004), set forth an expansive definition of income, which
would include the entirety of the net proceeds from a
personal injury settlement as those proceeds amount to a gain
to the recipient. In support of his argument, Larry relied on
the Fifth District's recent decision in In re
Marriage of Fortner, 2016 IL App (5th) 150246, ¶
26, 52 N.E.3d 682, which, in the context of a claim to set
child support based on an award from a wrongful death action,
found Villanueva was wrongly decided. Larry further
asserted the evidence demonstrated Cara used the money from
her settlement as if it was income.
8 Cara requested the trial court not consider any part of her
personal injury settlement as income for the purpose of
setting child support. Cara suggested the court should follow
Villanueva and find compensation for pain and
suffering should not be considered as income because it is
intended to compensate the injured party. Cara acknowledged
Villanueva required any portion of a personal injury
award attributable to lost earnings be considered income for
child support purposes but argued none of her settlement was
in fact attributable to lost earnings.
9 In response to Cara's argument suggesting none of her
personal injury settlement was attributable to lost earnings,
Larry argued, even if the trial court followed
Villanueva, Cara's testimony demonstrated her