ALL IN THE FAMILY When Statutes Change… When is child support modifiable?
By DAN STEFANI
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.
On March 8, 2019, the 2nd District Appellate Court filed an opinion that raises serious questions about the modifiability of child support when the original obligation arose under our old guideline law and there is a request for modification under our current guideline law which became effective July 1, 2017.
In In Re Former Marriage of Brenda Salvatore and Daniel Salvatore, 2019 Ill.App.2d 180425, the court affirmed the trial court’s denial of the ex-husband’s child support modification request.
The parties were divorced in August 2015 and part of the parties’ agreement required Daniel to pay Brenda guideline child support for their three children in the amount of $8,100 per month, about 32% of Daniel’s net income. At the time of the divorce, Brenda was unemployed.
A little over two years following the divorce Two years later, Daniel filed a petition to modify his child support obligation ultimately based on the fact that Brenda was now employed, earning approximately $45,000 per year which was a substantial change in circumstances warranting a decrease in his child support obligation.
Daniel further noted that the child support guidelines under the Illinois Marriage and Dissolution of Marriage Act had recently been changed so that a nonsupporting parent’s income is now factored into the determination of child support. Daniel argued that the current guidelines yielded a child support of $3,244 per month versus the $8,100 he was paying. The trial court ruled in part that even though Brenda was unemployed at the time of judgment and currently she was making an income of $45,000 per year, her newfound income was not a substantial change in circumstances warranting a modification. The appellate court, using some tortured logic, affirmed.
On appeal, the court first compared the new child support law in effect as of July 1, 2017, versus the law as it was when the judgment was entered. The old law focused on the payor’s income and took a percent of the payor’s net income depending on how many children were involved to set the guideline for child support.
The new law, in effect at the time of this appeal, relied on an income-sharing model which contemplated and considered both parties’ income when computing the guideline child support obligation.
Additionally, tThe statute also provides that the enactment of the new law in and of itself does not constitute a substantial change in circumstances warranting modification of child support. However, iIn cases warranting a modification, the new statute applies to all judgments of child support as of July 1, 2017.
Daniel first argued that because Brenda was unemployed and earning no income at the time of the judgment, any income she earned from her new job currently was relevant to establishing a substantial change in circumstances and, in fact, her current income was enough to constitute a substantial change in circumstances.
The appellate court held that the parties did not intend for Brenda’s income from her future employment to trigger a downward modification of Daniel’s child support obligation. Specifically, the court found that the parties had contemplated Brenda’s future employment when they agreed to the terms of their marital settlement agreement.
The court found evidence that the parties contemplated Brenda’s future employment by looking to various areas of their marital settlement agreement and joint parenting agreement. There was no evidence in the child support section but there was evidence in a section which provided for the parties to maintain health insurance for the benefit of the children.
There was also evidence in their parenting agreement where they were required to keep each other informed as to their places of employment. That, coupled with the fact that Brenda did work a few years during the marriage, was enough for the appellate court to conclude that because Brenda’s employment was contemplated at the time of the judgment, Brenda’s her newfound income could not be a basis for modification of child support.
The court went on to further state because the new guidelines generally result in a much lower guideline child support amount, it is predictable that similarly situated individuals with child support obligations will seek to modify down just to avail themselves to the new guidelines. As such, the court warned that there should be higher scrutiny in finding a substantial change in circumstances when the child support obligation was calculated under the prior guidelines, especially when events were contemplated at the time of the judgment.
To further protect their rationale, the court also noted that they would have affirmed the trial court’s ruling even if the parties had not contemplated Brenda’s future employment.
Specifically, the court found no abuse of discretion in the trial court’s finding that even if Brenda’s income could be properly considered, it was not enough to warrant modification of Daniel’s child support obligation under the new statute.
Essentially, the court affirmed what was a deviation from the current guidelines without any specific findings.