This month, I am tackling the issue of modifications of child support and recent rulings by the Illinois Appellate Courts regarding this. I am specifically speaking of In re Marriage of Salvatore, 2019 IL App (2d) 180425, In re Marriage of Wengielnik, 2020 IL App (3d) 180533, and In re Marriage of Connelly, 2020 IL App (3d) 180193.
Let’s begin with some background. Historically, child support in Illinois was based upon a percentage of the payor’s net income. The income of the parent with the majority of parenting time did not factor in and nor did the amount of parenting time either parent had with the children. In 2017, 750 ILCS 5/505 was given a complete facelift. Now, the Court looks at the incomes of both parties when calculating the support. Further, the Court looks at the parenting time as well and if a parent has at least 40% of the overnights, then the child support amounts dramatically drops. The new law tends to reduce the amount the payor has to pay in child support across the board. Thus, many people were giddy to get into Court to attempt to reduce what they pay each month. Illinois law provides that you cannot get a reduction simply because the law changed. You must first provide proof of a substantial change. However, the law does not state if the substantial change has to be up, down, or sideways. If you can do that, then you are through the door and are entitled to have the child support modified to whatever the new statute provides for. However, the Court does have the ability to make the finding of a substantial change and then deviate the amount paid.
By way of example, a father has the majority of the parenting time of two (2) children. When child support was set, the mother was earning $50,000.00 per year and child support was set on 28% of her net income. The mother’s income goes up by $25,000 per year and she now earns $75,000.00 per year. She files to modify her child support because she knows that, even though her income went up substantially, the result will be lower child support. What should happen is that the Court should find that there has been a substantial change, but then exercise their discretion and deviate from the new child support guidelines. The Court in this example should find that she still has the ability to pay what she was paying and should deviate back up to what she was paying. To do otherwise and find that there has been no substantial change would be non-sensical and frankly would be absurd. And that takes us to the three (3) cases mentioned above.
In Salvatore, the father filed to modify his child support. He alleged that his income had gone down. However, it also came out that the mother was unemployed at the time of the divorce and now was working full-time and earning about $24,000.00, although he argued she was earning double that amount. Thus, he also argued that her income had gone up and that was a substantial change. If the Court found that a substantial change had occurred and applied the new guidelines, then his child support would have plummeted. Truth be told, it appears from the Appellate Court ruling that there were some credibility issues with the father’s testimony. The Court found no substantial change and denied his pleading. The Appellate Court affirmed. As stated above, I strongly believe the correct ruling would have been a finding of a clear substantial change from the mother going from $0.00 to $24,000.00. Then, the Court could have deviated up back to what he was paying previously if they wanted to do that.
The next case was Wengielnik. The parties were divorced in 2013. At that time, the father had 82 overnights. Three (3) years later, the parenting agreement was modified and the father now enjoyed 130 overnights in odd years and 148 overnights in even years. The father cited In re Marriage of O’Hare & Stradt, 2017 IL App (4th) 170091. In that matter, the Court found a 6% increase in parenting time to not be a minor modification and found that was a substantial change. His increase in parenting time was far more than 6% and he figured it had to fit the definition of a substantial change. The trial Court found no substantial change in Wengielnik because the father never showed evidence of an increase in his expenses. The trial and Appellate Courts felt that he was making an apples to oranges argument. The Appellate Court affirmed. Again, if the Court did not want to reduce his support, then it should have found a substantial change, but then deviate back up to what he was paying. We all know that if this was reversed and the father went from 148 overnights down to 82 overnights, the mother would have filed to increase child support and she would have won and she would not have needed to show her expenses had gone up. What is also interesting to note is that the parent receiving child support does not need to account for how they spend the money and yet this Court was requiring him to do just that.
The third case in this epic trilogy of misapplying the law is Connelly. In this matter, the father filed to modify his child support. He filed to modify based on his income going from $100,000.00 to $110,000.00, his ex-wife’s income increasing by approximately 50%, and that his overnight parenting time had increased from 32% to over 45%. In 2016, his parenting time had increased to the over 45%. Over one (1) year later, he filed to modify. He did testify that expenses did increase for him due to having the children that much more. The trial Court found that the changes in his and his ex-wife’s income did not constitute substantial changes. Further, the Court found that his increase in parenting time was also not a substantial change. As stated above, I wonder what the result would have been if the father went from 45% parenting time down to 32%. I am nearly positive that the Court would have increased his support in that situation if the wife filed for a modification, but I digress. The trial Court felt that the father had to provide proof of an increase in “uncommon” expenses. I have literally never heard a judge state that someone has to prove uncommon expenses nor does the statute provide for uncommon expenses. What are uncommon expenses you ask? I have no clue, but I bet if we asked 20 different people, we would get 20 different answers. Again, if the Court did not want to modify and reduce his support, then they should have made the finding of a substantial change and then deviate the child support amount.
This line of cases have created a serious problem. These cases make it seem that anything that could have been foreseen will not allow a party to modify the support. Yet, it seems to me these trial Courts had the result decided before the case was even heard and just made up rules to get to their result. Just because a change was predictable does not render it less than substantial. We can all agree that when a child emancipates then the child support should modify or terminate if that was the last minor child. However, under this line of cases, I am truly unsure of even that.
I have been asked by several lawyers to work on the wording of the current laws so that rulings like this stop. However, this is not a legislative issue. In my opinion, the laws of this State do not really provide for what these judges are doing. The judges in these cases seem to be making it up as they go instead of applying the law as written. In my opinion, all these fathers should have received the modification. I am sorry if it negatively impacts the other party, but the law is the law. Once a substantial change is found then the child support guidelines should have kicked in unless the Court ordered the deviation. The precedent set by the cases is dangerous to say the least. We are now left in a position where it is truly impossible to figure out what would allow for a modification of child support.
By Michael S. Strauss, published in the Lake County Bar Association Docket, April, 2020