By Donald C. Schiller and Michelle A. Lawless
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361

1. Two year income average upheld for purposes of calculating child support and maintenance. In a dissolution of marriage trial, the court used an average of husband’s historical income for two years for purposes of setting maintenance and child support, and found his average annual gross income to be $82,570. Husband appealed. The Appellate Court upheld the two-year income averaging approach due to the findings that husband’s current income was difficult to ascertain because of his lack of credibility and his failure to disclose the totality of his sources of income. Husband’s 2017 W-2 reported income was half of his 2016 W-2 reported income, and husband did not offer a plausible explanation for the reduction at trial. The Court acknowledged that while there was support for husband’s argument that at least three years should be used to obtain an accurate income picture, the number of years to consider is generally left to the discretion of the trial judge. In this case, the trial judge did not err in not including husband’s 2018 income since husband testified that he could not remember was his 2018 income was and there was no other evidence in the record of his 2018 income. In re Marriage of Gabriel and Shamoun, 2020 IL App (1st) 182710.

2. Trial court’s failure to deduct husband’s maintenance payments from his net income when calculating child support reversed. In a dissolution of marriage trial, husband appealed the trial court’s calculation of child support because it did not deduct his maintenance payment from his net income when performing the statutory calculation. Husband also appealed the trial court’s upward deviation from the statutory award. The Appellate Court reversed the trial court’s calculation as plain error since Section 505(a)(3)(F)(II) states that maintenance obligations pursuant to court order shall be deducted from the parent’s gross income when calculating net income for the purposes of child support and remanded for further proceedings to correct the calculation. With respect to the issue of a deviation, the Court held the trial court made the necessary written findings and did not abuse its discretion in determining that a deviation was appropriate in light of (1) the children’s needs and history of the case; (2) husband’s demonstrated history of non-compliance with support; (3) wife’s disproportionate share of overnights and overall parenting time; and (4) the fact that that husband received additional income which he did not disclose. In re Marriage of Gabriel and Shamoun, 2020 IL App (1st) 182710.

3. Trial court erred in not assessing child support judgment interest from the due date of the first unpaid installment. In a heavily contested post-judgment action, the trial court entered several orders and held several hearings on a number of motions filed by both parties. Mother ultimately appealed the calculation of statutory interest on the child support arrearage as well as the calculation of the arrearage. The calculation of the arrearage and interest was complex due to the fact that the court changed the custodial arrangement of the minor child in the middle of the proceedings. Ultimately, the court ordered interest on the amount of father’s support arrearage calculated from February 2016, which was the date the court determined the total arrearage amount through a subsequent court order in 2018. Mother appealed and argued that the interest should have been calculated from the first child support due date in 2009, not the date when the court determined the arrearage. The Appellate Court reversed. Pursuant to Section 505(b), interest on unpaid child support begins to accrue 30 days after the missed payment’s original date. The Court upheld the calculation of the actual arrearage. In re the Marriage of Westlund, 2020 IL App (1st) 190837.

4. Trial court has broad powers to enforce its own judgments, including signing deeds to transfer real estate if the parties do not cooperate. After a dissolution of marriage trial, the court awarded wife the family farm and ordered her to pay husband $200,000 in settlement of the marital estate. The judgment included a date by which the payment had to be made or within 30 days of wife refinancing or selling the farm. The judgment provided that if wife could not make the payment by virtue of a partial sale of the farm or by refinancing, she would have to sell the entire farm. Nearly two years after the entry of judgment, husband had still not received his payment and instituted proceedings to enforce the judgment and compel sale of the farm. Wife alleged that she had a buyer, but husband alleged that wife never gave him a copy of the sales contract. Later, husband alleged that he had secured a buyer with a higher contract price. Several motions and hearing ensued and wife contested the purchase by the buyers husband had found. The court ultimately ordered the farm be sold to the buyers husband had secured because they were offering more for the property and it ordered wife to cooperate. The court also ordered the closing to take place in open court so that the court could sign any necessary documents absent wife’s appearance. Wife appealed arguing the trial court did not have authority to modify provisions relating to property settlements, but the Appellate Court affirmed. The trial court has indefinite jurisdiction to enforce its judgments, and the actions of the court did not modify the property settlement, but rather enforced the terms of its original judgment. A modification only occurs when there is a new obligation as to one or both parties. By compelling the parties to appear in open court for the closing, the court was enforcing wife’s obligation to sell the entire farm if she could not pay husband the $200,000, not modifying its original judgment. In re Marriage of Warner, 2020 IL App (3d) 190198.