child support 101/102 - The Gitlin Law Firm

as may be necessary to determine and enforce, on a timely basis, the applicable
support ordered.”
b. Duggan and Pure Percentage Orders: This legislation may render irrelevant
the Supreme Court’s IRMO Mitchell decision which addressed void versus
voidable percentage orders of support. Prior to the recent IRMO Duggan
decision, there had been no case law addressing whether a percentage order
without a finding per §505(a)(5) [stating that all or a portion of the net income
is uncertain as to source, timing or amount] would render the order voidable.
However, the Illinois Second District opinion of IRMO Duggan, (2nd Dist.,
October 19, 2007), creates significant questions if you are considering drafting
a pure percentage order of child support. In Duggan, the ex-husband argued
that the trial court erred in refusing to amend the 2005, child support order to
state the support due as a dollar amount rather than (or in addition to) a
percentage. The appellate court commented:
This argument is correct, as section 505(a)(5) of the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/505(a)(5)
(West 2004)) expressly requires that "[t]he final order in all cases
shall state the support level in dollar amounts," although a court
may insert a percentage in addition to the dollar amount if it finds
that the correct child support cannot be stated exclusively as a dollar
amount because the payor's income is "uncertain as to source, time
of payment, or amount.
In Duggan the appellate court stated that the trial court erred in refusing to
"amend or vacate" the order on the basis that it was an agreed order.
Regarding the argument that the ex-wife would be disadvantaged, the appellate
court stated, "An appropriate dollar amount can be calculated by using the
income averaging method."
c. Note Ackerley Decision Re Additional “Bonus” Income: A 2002 decision
which is enclosed addresses the issue of what constitutes additional income
(bonuses) for the purpose of payment of support. IRMO Ackerley, 333
Ill.App.3d 382, 266 Ill.Dec. 973, 775 N.E.2d 1045 (2d Dist. 2002), serves as
a primer on support modification and proper determination of net income
(including bonus income). Ackerley held that monies received in excess of
base pay, but not explicitly characterized as bonus funds were in actuality a
bonus. This is worthwhile reading and is a warning for careful drafting in any
case where there is a base plus a percentage order of support. Careful drafting
will anticipate payment in a means other than a bonus or a commission.
Careful drafting might not addressing the employer’s providing stock options
in lieu of additional compensation. (But see, IRMO Colangelo, 355 Ill. App.
3d 383, 290 Ill.Dec. 986, 822 N.E.2d 571 (Second Dist., 2005)). The question
in Ackerley was whether the additional income was a bonus as opposed to the
ex-husband’s contention that it was additional weekly income because he was
working harder.
2. §505(a)(6) – Documents Obtained Via Subpoena Self-Authenticating if Non-
Compliance with Discovery Order Plus No Presence at Hearing:] “If (I) the non-
Gitlin Law Firm, P.C. 1-6 www.gitlinlawfirm.com