In re Marriage of Izzo

          Appeal from the Circuit Court of Du Page County. No. 07-D-2 Honorable Robert E. Douglas, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

          OPINION

          JORGENSEN JUSTICE

         ¶ 1 In August 2017, respondent, Robert J. Izzo, petitioned to reduce his $6500 monthly child-support obligation to petitioner, Kris M. Izzo. He argued that a substantial change in circumstances had occurred since the entry of the most recent support judgment, which was the original judgment dissolving the parties' marriage nine years prior. Robert set forth the following bases for a substantial change: (1) he had increased his share of overnight custody from 15% to 45%; (2) Kris had experienced an increase in wealth and income; and (3) he was forced to retire and is no longer earning income from employment. The court rejected each of these bases, explaining that (1) Robert's increased share of custody was too remote, having occurred five years after the original judgment but four years before the petition to modify; (2) Kris's increase in wealth was anticipated at the time of the original judgment; and (3) Robert's retirement was entirely voluntary. Robert appeals.

         ¶ 2 We hold that the trial court made an error of law when it found the change in custody to be too remote to constitute a substantial change in circumstances. The circumstances at the time of a petition to modify must be measured against the circumstances at the time of the most recent support judgment, not against the circumstances at some time between the two events. The change in custody alone is enough to establish a substantial change in circumstances justifying a reduction in the child-support amount. Therefore, we need not consider the additive effects, if any, of the other changes Robert alleged to establish a substantial change. We reverse the trial court's judgment and remand for a determination of the proper child-support amount in light of the change in custody. On remand, in setting the new support amount, the trial court can consider Kris's, as well as Robert's, wealth and Robert's retirement.

         ¶ 3 I. BACKGROUND

         ¶ 4 Robert and Kris married in 1988. They had three sons: R.I. (born in 1990), E.I. (born in 1994), and B.I. (born in 2004). Kris petitioned for divorce in 2007, and the trial court entered a judgment of dissolution in August 2008, which incorporated the parties' marital settlement agreement and joint parenting agreement. At the time of the divorce, Robert worked for Chase Bank and earned $1.6 million annually from employment. In some, but not all, of the years immediately preceding the divorce, his income from all sources exceeded $2 million annually. Kris did not work outside the home, although she had previously worked as an accountant.

         ¶ 5 The marital estate contained approximately $10 million in assets. The dissolution judgment ordered a 60/40 split in Kris's favor of $7.5 million in nonretirement assets and a 50/50 split of $2.5 million in retirement assets. Thus, Kris's property award was approximately $5.75 million and Robert's was approximately $4.25 million.

         ¶ 6 In addition, Robert paid Kris an $850, 000 lump sum in lieu of maintenance. The judgment noted that the lump sum would further enable Kris to support herself. It also instructed that each party was to inform the other of his or her place of employment.

         ¶ 7 The judgment set forth the following custody arrangement. R.I., who was 17 and nearly emancipated, lived primarily with Robert. E.I., who was 14, split his time equally with both parents, both of whom lived in Naperville. B.I., who was 4, spent 12 of 14 nights with Kris and the other 2 with Robert. B.I. also spent Wednesday evenings (with no overnights) and alternating Saturday afternoons with Robert.

         ¶ 8 The judgment ordered Robert to pay Kris $6500 monthly in child support, for B.I. only. The judgment reserved the question of support as to R.I. and E.I. Robert was solely responsible for providing all of the children with health insurance and paying for extraordinary medical expenses. The parties were to equally split costs associated with ordinary medical expenses, education, extracurricular activities, and child care. Each party would be responsible for day-today costs, such as food, clothing, and shelter, when a child was in his or her home.

         ¶ 9 In September 2008, Robert moved to reconsider the judgment. He alleged that, after the judgment was entered, his supervisor at Chase informed him that he would not be retained in his present position. Either he would lose his job entirely or he would be placed in a new position with a substantial reduction in income. The trial court denied the motion. Robert appealed. See In re Marriage of Izzo, No. 2-08-0934 (2009) (unpublished order under Illinois Supreme Court Rule 23). This court affirmed, holding that the information concerning Robert's potential change in employment was not evidence but was in the nature of an opinion. Id. at 4. Thus, the original judgment remained in effect.

         ¶ 10 In 2010, Robert "was separated from" his employment with Chase. A former coworker at Chase was then running a risk group at Freddie Mac, and she helped him obtain employment there. Robert's annual income from employment at Freddie Mac was approximately $1 million. Robert did not seek a reduction in child support due to a reduction in income.

         ¶ 11 Robert's office at Freddie Mac was located in Virginia. He arranged a commuter schedule that allowed him to continue living in Naperville, so that he could continue to be heavily involved in his children's lives. One week, he worked from home in Naperville and the next week, he worked three to four days in Virginia The schedule caused no disruption to his custody arrangement. After working for Freddie Mac for two years, Robert was granted even more flexibility. He worked in Virginia just two days every other week.

         ¶ 12 In 2012, Robert petitioned to modify custody as to B.I., then age 8. Because Robert sought to be the primary custodian, he also sought to cancel his child-support obligation. However, in 2013, Robert withdrew his petition, as well as his request concerning support, and the parties entered into a settlement agreement concerning custody. Pursuant to the agreement, B.I. spent 6 of every 14 nights with Robert, amounting to a 43/57 custodial split. Accounting for certain holidays and vacations, the split was closer to 45/55. The new custody order expressly ...