Opinion
NO. 4-13-0980
08-25-2014
In re: MARRIAGE OF JENNIFER B. McGINNIS, Petitioner-Appellant, and JERADE R. McGINNIS, Respondent-Appellee.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of McLean County
No. 08D54
Honorable Lee Ann S. Hill, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Turner and Steigmann concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed where (1) the record supported the trial court's finding that ex-husband underwent a substantial change in his financial circumstances, and (2) the trial court did not abuse its discretion in denying retroactive relief on ex-wife's postjudgment petition.
¶ 2 In April 2010, the trial court entered a judgment dissolving the marriage of petitioner, Jennifer B. McGinnis, and respondent, Jerade R. McGinnis. As part of its judgment, the court ordered Jerade to pay child support to Jennifer in the amount of $375 per week. In September 2012, Jerade filed a petition to modify child support. In January 2013, Jennifer filed a petition seeking contribution from Jerade for their children's extracurricular expenses. In October 2013, the court granted the parties' petitions.
¶ 3 Jennifer appealed, arguing the trial court erred by (1) granting Jerade's petition to reduce child support; and (2) ordering Jerade's obligation to contribute to the extracurricular
expenses to be retroactive to October 3, 2013, instead of January 24, 2013, which was the date she filed her petition. We affirm.
¶ 4 I. BACKGROUND
¶ 5 In June 2000, Jennifer and Jerade were married. The parties had two children, Kayla (born June 14, 2002) and Wyatt (born November 23, 2004). In January 2008, the parties separated. At all times relevant to this appeal, Jerade was a self-employed, over-the-road truck driver.
¶ 6 A. Prejudgment Proceedings
¶ 7 In February 2008, Jennifer filed a petition for dissolution of marriage. In April 2008, the trial court entered an agreed order for temporary relief, wherein the court placed sole custody of the parties' children with Jennifer and awarded Jerade reasonable visitation. Further, the court directed Jerade to pay $500 per week to Jennifer for support of their children and maintain the children's health insurance. The court also awarded sole possession of the parties' marital home in Stanford, Illinois, to Jennifer.
¶ 8 In October 2008, Jerade filed a petition to modify the agreed temporary support order. Jerade asserted a substantial change in circumstances warranted a reduction in his child support obligation. Specifically, Jerade "ha[d] been required to replace his previous truck, a 1993 with over one million miles on it, with a newer truck, which requires a current loan payment. Also, his fuel and other operating expenses ha[d] increased and his revenue from his business as an over-the-road truck driver ha[d] been substantially reduced."
¶ 9 Over three days in June, August, and September 2009, the trial court held a hearing on the unresolved issues. In December 2009, the court issued a memorandum opinion resolving, inter alia, the issue of support for the parties' children. The court set child support at
$375 per week to be paid by Jerade to Jennifer. In making this determination, the court noted Jerade's income "was significantly less in 2008 than the previous year." In 2007, Jerade earned approximately $127,000, but in 2008, he earned approximately $57,500. During the three-day hearing, Jerade testified he did not intentionally reduce his income. Jennifer testified Jerade told her "he was not going to work anymore [sic] than he had to." The court found (1) little evidence existed to support a finding Jerade intentionally reduced his income, and (2) Jerade had little incentive "to take marginal loads or work additional hours." Because of the disparity in Jerade's income between 2008 and previous years, the court did not determine his current income for purposes of setting child support and set child support in an amount it found reasonable under the circumstances.
¶ 10 In April 2010, the trial court entered its judgment of dissolution of marriage, incorporating its December 2009 memorandum opinion resolving the remaining issues. In May 2010, Jerade filed a motion to reconsider, asserting the court should reconsider its order requiring him to pay $375 per week because the "the [c]ourt in its [o]pinion did not reference [Jerade's] income earned or his projected income for the year 2009," even though he presented evidence of his 2009 income. Because the court did not issue its opinion until December 2009, Jerade argued, the court should have considered the income he earned in 2009. Jerade attached his 2009 income tax return to the motion. Following a May 2010 hearing, the court denied Jerade's request that the trial court reopen the evidence for consideration of his 2009 tax return and his 2010 income to date.
¶ 11 B. Postjudgment Proceedings
¶ 12 1. The Parties' Postjudgment Petitions
¶ 13 In September 2012, Jerade filed a petition to modify child support pursuant to section 510(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/510(a)(1) (West 2012)). Therein, Jerade asserted a substantial change in circumstances warranted a reduction of his child-support obligation. Specifically, Jerade stated his income was "substantially lower than that amount at which it was calculated in April of 2010 at the time of the dissolution of marriage." Jerade requested the trial court reduce his support obligation consistent with the statutory guideline of 28% of net income. See 750 ILCS 5/505(a)(1) (West 2012).
¶ 14 On January 22, 2013, Jerade filed an emergency petition to suspend child support. Jerade indicated his current "employment situation ha[d] become *** dire in that[,] as a leased/owner-operator of a semi-truck[,] he has experienced a substantial drop in his demand from his sole source of income: Hoffman Trucking." Further, Jerade noted Hoffman Trucking was paying his child support as an advance on his expected income.
¶ 15 Two days later, on January 24, 2013, Jennifer filed a petition in which she sought contribution from Jerade for the children's extracurricular expenses. Jennifer's petition noted at the time the parties divorced, their children were young and involved with few extracurricular activities. The children were now participating in "numerous organized extra-curricular activities," which resulted in out-of-pocket costs to Jennifer of approximately $1,400 annually. Jennifer sought contribution from Jerade for half of her estimated out-of-pocket costs in relation to these activities.
¶ 16 2. The Hearing on the Parties' Petitions
¶ 17 A hearing on Jerade's petition to modify child support and Jennifer's petition for contribution to the children's extracurricular expenses took place over three days in May, July, and September 2013.
¶ 18 a. Lindell Armstrong's Testimony
¶ 19 Jerade presented the testimony of Lindell Armstrong, an attorney and certified public accountant, who testified he prepared the taxes for Jerade's trucking business and had been doing so for approximately 8 to 10 years. Armstrong determined Jerade's adjusted income for child support purposes in 2012 was approximately $26,727, which resulted in a child support calculation of $143.92 per week based on the statutory guidelines. Armstrong also compiled a three-year average of Jerade's adjusted income, which he found to be $31,066.15. Using this figure, Armstrong calculated Jerade's statutory child-support obligation to be $167.28 per week. According to Armstrong, these calculations were both substantially different from the $375 per week the court previously ordered him to pay, thus demonstrating a substantial change in Jerade's economic circumstances. In making this determination, Armstrong compared Jerade's 2008 tax return to his 2012 tax return. Armstrong acknowledged, however, Jerade earned more in 2012 than he did in 2009.
¶ 20 b. Jerade's Testimony
¶ 21 Jerade testified when the judgment of dissolution was entered, on April 15, 2010, he was a self-employed truck driver but he was leased to Cox Transfer. In the second half of 2010, Jerade switched his affiliation to Hoffman Trucking, to which his services are currently leased. Jerade leases his equipment and services to Hoffman Trucking, which, in turn, supplies him with loads to be hauled. Hoffman Trucking takes 20% of the pay Jerade receives for hauling
a load. As a result of this lease agreement, Hoffman Trucking has "dibs" on Jerade's truck and his services.
¶ 22 Jerade switched his affiliation to Hoffman Trucking when he learned Cox Transfer was no longer going to use owner-operators. Jerade sometimes received additional loads from "load boards," in which various brokers post loads needing to be hauled. Jerade would take additional loads so long as the pay justified the work.
¶ 23 Jerade primarily pulls flatbed trailers, which results in seasonal fluctuation in the amount of loads he receives. Because Jerade is an over-the-road truck driver, he must comply with strict guidelines as to the number of hours he can drive and be on duty. When Jerade started with Hoffman Trucking in June 2010, he was receiving a fairly consistent number of loads. This consistency lasted throughout 2011, but in 2012, Jerade's flatbed work slowed down. He attempted to supplement his hours by either hauling a tanker or finding work on "load boards." In October and November 2012, Jerade's flatbed work began to slow substantially. As of January 2013, when he filed his emergency petition to suspend child support, he was receiving one to three loads per week, which was well below his average.
¶ 24 When asked whether he was receiving a paycheck from Hoffman Trucking in December 2012 and January 2013, Jerade replied, "If [I] was, it was very minimal." Hoffman Trucking paid Jerade's child support as an advance on his regular pay. As a result of his current child support and his maintenance of the children's health insurance, Jerade was not able to set aside any money for his estimated taxes. Jerade currently owed $17,000 in back taxes.
¶ 25 After counsel for Jerade completed direct examination, the court continued the matter to July 2013, where counsel for Jennifer would be allowed to cross-examine him. During this recess, on May 24, 2013, Jerade married Jen Wickenhauser. On cross-examination,
Jennifer's attorney questioned Jerade about his reported expenses relating to both work and his household. Jerade and Wickenhauser shared many household expenses. Jerade was now covered by Wickenhauser's health insurance. Jerade testified he no longer owed money on the Peterbilt truck he referenced in his October 2008 petition to modify the agreed temporary order.
¶ 26 c. William Maass's Testimony
¶ 27 Jennifer presented the testimony of William Maass, who was employed as a funding coordinator for Midwest Technical Institute (MTI). For the past 30 years, Maass's employment "involved study of the workforce and the labor market." Maass's previous and current employment required him to be generally familiar with the labor market in central Illinois. In 2013, MTI started a commercial driver's license program, in which it would train students to become truck drivers. MTI hired Maass to evaluate the labor market for truck drivers in central Illinois. Maass determined there was a need for 300,000 truckers nationwide. Further, from 2011 to 2013, Illinois experienced a growth of 1,621 truck-driving jobs and demand was continuing to rise. According to the United States Bureau of Labor Statistics, demand for truck drivers was expected to increase by 21% between 2010 and 2020. Because of the projected growth in truck-driving jobs, MTI continued to open new truck-driving programs.
¶ 28 Maass also testified he did not know Jerade's qualifications, how long Jerade had been driving, what endorsements Jerade had received, or what kind of trailer Jerade pulled. As a result of his lack of knowledge about Jerade's qualifications, Maass was unable to give an opinion as to what salary Jerade could be earning if he switched his employment arrangement.
¶ 29 d. Jen Wickenhauser's Testimony
¶ 30 Jennifer presented the testimony of Jerade's new wife, Jen Wickenhauser. Wickenhauser testified she is employed at State Farm and is paid $40,355.52 annually.
Wickenhauser acknowledged she had been paid $25,574.21 as of July 12, 2013. Wickenhauser also testified her insurance premium would increase if she added the two McGinnis children to her plan.
¶ 31 e. Jennifer's Testimony
¶ 32 Jennifer testified on her own behalf. At the end of 2012, Jennifer began working for H&R Block as a seasonal tax preparer. In addition, Jennifer babysits for her sister and cleans her mother's house. In 2012, Jennifer earned $13,170 from these three sources. Jennifer wished to stay in the marital home because it was "the only house that Wyatt has ever known" and "the only house Kayla has ever been in" since she started school. Further, remaining in the marital home would keep the children in the same school district and around the same friends. Jennifer expressed concern that she would not be able to make payments on the house if Jerade's child-support obligation was reduced. Jennifer stated she had little discretionary income "because it takes everything I have to pay the bills and keep them at that house." When asked whether Cox Transfer stopped hiring owner-operators for hauling flatbed trailers, Jennifer stated, contrary to Jerade's earlier testimony, Cox was still hiring flatbed owners.
¶ 33 f. The Exhibits
¶ 34 The parties submitted various exhibits for the trial court's consideration. Jennifer presented a chronology of Jerade's income based on his tax returns for the years 2006 through 2012. The exhibit showed Jerade earned $112,712 in 2006, $129,982 in 2007, $57,548 in 2008, $38,618 in 2009, $51,402 in 2010, $47,851 in 2011, and $49,155 in 2012.
¶ 35 Each party also submitted a proposed calculation of Jerade's child-support obligation. Jennifer suggested Jerade's income for purposes of child support was $54,101, which resulted in a proposed weekly support payment of $291.31 based on the statutory guidelines.
Jennifer's calculation of Jerade's net income did not include a deduction for the cost of maintaining the children's health insurance because Jennifer believed "insurance [was] available through [his] new wife's employer, State Farm." Jerade suggested his average income in the three years since the court entered the judgment of dissolution was $31,066.15, which resulted in a proposed weekly support payment of $167.28 based on the statutory guidelines.
¶ 36 3. The Trial Court's Rulings
¶ 37 On October 3, 2013, the trial court entered a written order in which it resolved Jerade's petition to modify child support. The court found a substantial change in circumstances had occurred, which required the court to modify the previous child-support order. The court noted the original trial judge's consideration of Jerade's 2007 and 2008 tax returns when setting the initial child-support order. The court also noted the original trial judge's previous finding that little evidence existed to support a finding Jerade intentionally reduced his income. The court found Maass's testimony had "absolutely no value" because he did not know (1) Jerade's qualifications; (2) whether any of the job growth would be available to Jerade; or (3) what, if any, increase of salary would result from Jerade switching from self-employment to one of these jobs. The court found Jerade's income began to decrease in 2008 and "has continued on a similar path since that time." Further, the court found the consideration of Jerade's 2007 and 2008 income, while appropriate when the original support order was entered, was no longer appropriate because it was clear the decrease in Jerade's earnings was not an anomaly. The court estimated Jerade's current income for purposes of child support was $50,827.40, based on the income figure submitted by Jennifer less the cost of Jerade's maintenance of the children's health insurance. Based on this income figure, the court ordered Jerade to pay child support to Jennifer
in the amount of $273.69 per week. The court ordered the modification to be retroactive to September 27, 2012, the date on which Jerade filed his petition to modify child support.
¶ 38 On October 23, 2013, Jennifer filed a motion seeking a ruling on her petition for contribution to the children's extracurricular expenses because the October 2013 order did not resolve that issue. Following an October 30, 2013, hearing in which the trial court heard argument from the parties regarding Jennifer's petition for contribution, the court entered an order granting Jennifer's petition. (We note the record contains no transcript, bystander's report, or agreed statement as to what transpired during this hearing.) The court ordered Jerade to pay half of the children's extracurricular expenses, not exceeding $500 "per child, per sport/activity, and per season," as they were incurred and within 30 days of receiving documentation of the expenses from Jennifer. The court made its order effective October 3, 2013, which was the day the court entered its order granting Jerade's petition to modify child support.
¶ 39 This appeal followed.
¶ 40 II. ANALYSIS
¶ 41 On appeal, Jennifer argues the trial court erred by (1) granting Jerade's petition to reduce child support, and (2) ordering Jerade's obligation to contribute to the children's extracurricular expenses to be retroactive to October 3, 2013, instead of January 24, 2013, which was the date she filed her petition. We address each of her arguments in turn.
¶ 42 A. Jerade's Petition To Reduce Child Support
¶ 43 Jennifer argues the trial court erred in granting Jerade's petition to reduce child support. Specifically, Jennifer asserts Jerade failed to meet his burden of showing a substantial change in circumstances because (1) Jerade's financial circumstances had improved from the date the original child-support order was entered; and (2) Jerade failed to show the reduction in his
income, which began in 2008, was not the result of his own deliberate efforts to reduce his income.
¶ 44 1. Standard of Review
¶ 45 Section 510(a)(1) of the Marriage Act allows the trial court to modify a previous child-support order where the party seeking the modification shows a substantial change in circumstances warrants relief. 750 ILCS 5/510(a)(1) (West 2012); In re Marriage of Rash and King, 406 Ill. App. 3d 381, 388, 941 N.E.2d 989, 995 (2010). In this context, we have stated:
"We find petitions to modify payment orders of any kind require the trial court to engage in a two-step process: (1) a judicial determination on a question of fact, e.g., whether there has been a material change in the financial circumstances of the parties, or whether a party acted in good faith in voluntarily changing employment; and (2), if so, whether and by how much to modify the support ordered. Each of these steps calls for a different standard of review: the first, whether the trial court's factual determination was against the manifest weight of the evidence; and the second, whether its decision at step two above, being a matter for the trial court's discretion, constituted an abuse of that discretion." In re Marriage of Barnard, 283 Ill. App. 3d 366, 370, 669 N.E.2d 726, 729 (1996).
A finding is against the manifest weight of the evidence where the record clearly supports the opposite conclusion. In re Parentage of J.W., 2013 IL 114817, ¶ 55, 990 N.E.2d 698. An abuse
of discretion occurs only where no reasonable person would adopt the view of the trial court. In re Marriage of Berberet, 2012 IL App (4th) 110749, ¶ 41, 974 N.E.2d 417.
¶ 46 2. Substantial Change in Circumstances
¶ 47 In this case, the record supports the trial court's finding of a substantial change in circumstances. The court based its finding on the fact Jerade's current income could now be determined with certainty, which was not the case when the court entered its original child-support order. The record shows Jerade suffered a large decline in income between 2007 and 2008. When the court issued its December 2009 memorandum opinion resolving child support, the court did not determine Jerade's income for purposes of child support because of the disparity between his 2007 and 2008 incomes. Due to the uncertainty regarding Jerade's income, the court set child support at an amount it found reasonable under the circumstances, which was $375 per week, instead of using the statutory formula. See In re Marriage of Sweet, 316 Ill. App. 3d 101, 109, 735 N.E.2d 1037, 1044 (2000) ("If the court is unable to determine the support obligor's income, it can award an amount that is reasonable under the circumstances.").
¶ 48 The record also supports the court's finding that the decrease in Jerade's income was not an anomaly. The record shows Jerade earned $112,712 in 2006 and $129,982 in 2007. In 2008, Jerade earned $57,548 and, in 2009, he earned $38,618. In 2010, 2011, and 2012, Jerade earned $51,402, $47,851, and $49,155 respectively.
¶ 49 Based on these circumstances, we agree with the trial court's finding that consideration of Jerade's 2007 and 2008 incomes was no longer appropriate for the purposes of setting his child-support obligation because his income did not appear likely to return to the amount he received prior to the parties' separation. Accordingly, the court's decision to
recalculate Jerade's child-support obligation in accordance with the statutory guidelines based on his 2012 income was appropriate.
¶ 50 Jennifer contends this court, in evaluating the trial court's finding of a substantial change in circumstances, must first determine the two relevant dates for comparison. Jennifer asserts we must compare Jerade's financial circumstances as of (1) May 14, 2010, which was the date Jerade filed his motion to reconsider and attached his 2009 tax return; and (2) September 6, 2013, which was the last day the court received evidence regarding the parties' postjudgment petitions. Using these two dates, Jennifer argues, Jerade's financial circumstances have improved from the date the previous support order was entered. We disagree.
¶ 51 " 'The issue on a petition for modification of child support is whether there has been a material[, i.e., substantial,] change in the circumstances of the parties since the previous order.' " In re Marriage of Armstrong, 346 Ill. App. 3d 818, 822, 805 N.E.2d 743, 745 (2004) (quoting Nordstrom v. Nordstrom, 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, 642 (1976). In this case, the trial court compared Jerade's financial circumstances in December 2009, when the issue of child support was decided, with his financial circumstances in October 2013. The court found Jerade suffered a substantial change in his financial circumstances because his income was unlikely to return to its pre-2008 level and could now be determined with certainty.
¶ 52 Additionally, Jennifer argues Jerade's financial circumstances have improved since the original child-support order was entered. Jennifer relies on (1) Jerade's May 2013 marriage to Jen Wickenhauser, which supplemented his income and allowed him to share household expenses; and (2) the satisfaction of the loans he used to acquire his Peterbilt tractor and Dodge Ram truck. Jennifer also contends she incurs "very few" discretionary expenses in an attempt to maintain the standard of living the children enjoyed throughout the marriage. While
such evidence is properly considered when a trial court is determining whether and by how much to modify child support (750 ILCS 5/505(a)(2) (West 2012)), we fail to see how this evidence precludes the downward modification of child support in this case.
¶ 53 Finally, Jennifer argues Jerade failed to show the reduction in his income was not the result of "his own deliberate decision-making." In support of her position, Jennifer relies on In re Marriage of Chenoweth, 134 Ill. App. 3d 1015, 1017-18, 481 N.E.2d 765, 767 (1985), and Coons v. Wilder, 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790-91 (1981), both of which held a voluntary change in employment resulting in a reduction of the support obligor's income will not constitute a substantial change in circumstances unless the party shows the change was undertaken in good faith and without intent to evade financial responsibility.
¶ 54 Chenoweth and Coons are inapposite. The record is devoid of any indication, other than the suggestion by Jennifer, that Jerade's reduction in income was voluntary. Further, the record does not show Jerade intentionally reduced his income with the intent to evade his financial responsibility to the children. The trial court heard testimony from both parties regarding the changes in Jerade's employment. During his testimony, Jerade provided a plausible explanation for those changes. The trial court, which is in a superior position to this court to judge credibility, accepted that explanation. In its written order the trial court noted the reduction in Jerade's income was not an anomaly and that it was unlikely his income would return to former levels. Such language makes clear the court did not view this case as one where an individual simply changed his employment arrangements in an effort to reduce his child support obligation.
¶ 55 Consideration of William Maass's testimony does not change our conclusion. Maass provided general information regarding the job market for truck drivers. Further, his
testimony did not establish Jerade voluntarily reduced his income or should have been earning more. Thus, Maass's testimony holds little probative value in this case.
¶ 56 3. Modification of Jerade's Child-Support Obligation
¶ 57 Having found the record supports the trial court's finding of a substantial change in circumstances, we must determine whether the court's decision to reduce Jerade's support obligation from $375 per week to $273.69 per week was an abuse of discretion. In this case, the court found Jerade's 2012 income for purposes of child support was $50,827.40, based on the figure Jennifer presented to the court less the cost of maintaining the children's health insurance incurred by Jerade. See 750 ILCS 5/505(a)(3) (West 2012). Using this income figure, which Jennifer does not challenge on appeal, the court set Jerade's support obligation at $273.69 per week, or 28% of his net income, consistent with the statutory guidelines. See 750 ILCS 5/505(a)(1) (West 2012). Jennifer does not argue the court abused its discretion by failing to deviate from the child-support guidelines, and we decline to find an abuse of discretion based on the record presented.
¶ 58 B. Jennifer's Request for Contribution
to Extracurricular Expenses
¶ 59 Jennifer also argues the trial court abused its discretion when it made its order regarding Jerade's obligation to contribute to the children's extracurricular expenses effective October 3, 2013, instead of January 24, 2013, which was the date she filed her petition. Specifically, Jennifer argues because the court ordered the modification of Jerade's support obligation to be retroactive to the date he filed his petition, but did not similarly treat Jennifer's petition, the court abused its discretion. Further, Jennifer argues, "[t]he court offered no explanation for such disparate treatment of the two petitions, both related to the financial support
of the parties' children, and no explanation seems apparent from either the facts of the case or the applicable statute."
¶ 60 Section 505 of the Marriage Act allows a trial court to order, in its discretion, either or both parents owing a duty of support to a child of the marriage to contribute to the expenses of the child's extracurricular activities. 750 ILCS 5/505(a)(2.5)(d) (West 2012). Jennifer's petition for financial assistance with the children's extracurricular activities was based on Jerade's duty of support to the children and akin to a petition for child support. The decision to grant relief on a petition for child support retroactively is within the sound discretion of the trial court. In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1119, 806 N.E.2d 701, 711 (2004). We will not disturb the court's decision absent an abuse of discretion. In re Marriage of Carpel, 232 Ill. App. 3d 806, 820, 597 N.E.2d 847, 858 (1992). Other than the applicable statute, Jennifer provides no authority in support of her assertion the court abused its discretion.
¶ 61 Accordingly, we conclude the court did not abuse its discretion when it declined to order Jerade to contribute to the children's extracurricular expenses retroactively. In affirming, we wish to point out how helpful the detailed written orders entered by the trial court were to our review of this matter.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, we affirm the trial court's judgment.
¶ 64 Affirmed.