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In re Marriage of Plowman

Court of Appeals of Illinois, Fourth District

June 19, 2018

In re MARRIAGE OF LARRY A. PLOWMAN, Petitioner-Appellant, and CARA R. LAWSON, Respondent-Appellee.

          Appeal 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.

          OPINION

          KNECHT JUSTICE.

         ¶ 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 settlement.

         ¶ 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."

         Cara 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 ...


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