Gitlin Law Firm 2008 Illinois Divorce and Paternity Case and ...

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What Constitutes Income for Support Purposes Eberhardt - Child Support / Claimed Double Counting of Withdrawals from IRA Account IRMO Eberhardt, 900 N.E.2d 319 (First Dist., December 12, 2008) Eberhardt addresses the claim that there is an improper double counting when improper double counting occurs when IRAs that are awarded in a property settlement are liquidated and viewed as income. The appellate court commented that the cases that they cited all turned on their facts including IRMO Lindman and IRMO Klomps. The appellate court cited Klomps for the following discussion: "If we were to allow retirement income to be excluded from net income when setting child support merely because those benefits, prior to their receipt, were used to determine an equitable distribution of the parties' marital property, we would be adding provisions to the Act that do not exist. We will not twist the clear meaning of the Act to invent an otherwise nonexistent rule that would be contrary to the purpose of making 'reasonable provision for spouses and minor children during and after litigation.' [Citation.]" In re Marriage of Klomps, 286 Ill. App. 3d at 716-17. Clearly, the facts were controlling in this case. Perhaps it is a matter of bad facts making somewhat bad law. In applying the facts and not finding an abuse of the trial court’s discretion the appellate court stated: Here, as in Croak, the court found Stephen to be evasive and less than straightforward about his finances. It found a pattern of nondisclosure. The court did not believe Stephen's story of a sudden downturn in business. The court addressed the double counting issue, calling it a misguided argument on Stephen's part because the IRA income was less of an influence on the court's decision than the perception that Stephen's testimony was not credible. The court also noted that Stephen apparently spent money for his own benefit rather than meeting his court ordered support obligations to his children. Comment: Because of the importance of this issue, awareness of the case law cited is critical. The Gitlin on Divorce comment to the 1997 Klomps decision stated: The father in Klomps, the appellant, relied heavily on Harmon. The father's brief stated that Harmon "is authority that an item may be a marital asset or income, but not both." Harmon said nothing of the sort. The Second District in Harmon passed on whether various types of income of the child support obligors would be included in calculating net income. The Harmon court considered passive income the mother received from bonds or securities -- passive income which was reported on her tax return but not actually received, gift income, and also interest income. The interest income was being paid to her by the child support recipient, the father who was paying the mother $750 per month interest on account of a property settlement balance due to her of $90,000. The appellate court did not discuss rationale for excluding interest. It merely stated: The Gitlin Law Firm, P.C. Page 18 of 55 www.gitlinlawfirm.com
The possibility of future financial resources also should not be considered when setting an award of child support. (Ivanyi, 171 Ill.App.3d at 422, 122 Ill.Dec. 49, 526 N.E.2d 189, GDR 91-10.) For this reason, we agree with respondent that money she received as a gift cannot be considered income. Finally, we also agree with respondent that the monthly interest payments which comprise her share of the marital assets should not be used to calculate her net income. (See In re Marriage of Hart (1990), 194 Ill.App.3d 839, 850, 141 Ill.Dec. 550, 551 N.E.2d 737.) We therefore conclude that the trial court did not abuse its discretion in determining respondent's net income. [Emphasis added.] We stated, “It would appear the review court affirming the trial court on the issue of the interest income was an ad hoc decision because the appellate court, like the trial court, was sympathetic to the plight of the recovering alcoholic, unemployed mother.” Keep in mind that instructively, the Lindman decision addressed "‘double counting'" and cited the IRMO Zells, 572 N.E.2d 944 (1991). Lindman stated: It may be argued that the court is double counting this money, that is, it is counting the money on its way into and its way out of the IRA. In other words, the money placed into the IRA from year one to year five is being counted twice. To avoid double counting in this situation, the court may have to determine what percentage of the IRA money was considered in the year one net income calculation and discount the year five net income calculation accordingly. Further Case Law Review Re Types of Income Which Might be Considered for Support Purposes: Einstein v. Nijim, 358 Ill.App.3d 263, 294 Ill.Dec. 527, 831 N.E.2d 50 (4th Dist. 2005) Father's annual bonus and monthly automobile allowance were properly included in his income for purposes of calculating child support. IRMO Lindman, 356 Ill.App.3d 462, 291 Ill.Dec. 969, 824 N.E.2d 1219 (2d Dist. 2005) Disbursements from father's IRA, though non-recurring, were income for purposes of calculating his child support. IRMO Rogers, 213 Ill.2d 129, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004) Money received as repayment of a loan and money received as a gift can be considered in computing net income for child support purposes when the benefits enhance the obligor's wealth, which facilitates the obligor's ability to support the obligor's child. Illinois Dep't of Public Aid ex rel. Jennings v. White, 286 Ill.App.3d 213, 221 Ill.Dec. 561, 675 N.E.2d 1371 (3d Dist. 1997) Trial court's finding that payments from a Federal Employers Liability Act were "income" for child support calculation purposes was supported by the broad interpretation of "income" found in IMDMA §505. Villanueva v. O'Gara, 383 Ill.App.3d 147, 218 Ill.Dec. 105,668 N.E.2d 589 (2d Dist. 1996) The Gitlin Law Firm, P.C. Page 19 of 55 www.gitlinlawfirm.com
Page 1 and 2: 2008 SUMMARY OF SIGNIFICANT ILLINOI
Page 3 and 4: Hearing............................
Page 5 and 6: ex-husband’s expert was an actuar
Page 7 and 8: one way -- the petitioner [should]
Page 9 and 10: employed at the end of the fiscal y
Page 11 and 12: In affirming the disproportionate p
Page 13 and 14: Nicholas testified, and Angeline di
Page 15 and 16: under such pretenses." Given that t
Page 17: significant question was: Does the
Page 21 and 22: st IRMO Baumgartner, 384 Ill. App.3
Page 23 and 24: agreement or otherwise." Black's La
Page 25 and 26: (4) December 22, 2005: By and throu
Page 27 and 28: In the present case, Suzanne calcul
Page 29 and 30: expenses of $3,500. The trial court
Page 31 and 32: constitute almost all of the assets
Page 33 and 34: 750 ILCS 5/504(b--5) (West 2006). S
Page 35 and 36: and the ex-husband’s loss of his
Page 37 and 38: of that order and accordingly the f
Page 39 and 40: since birth. Regarding the evidence
Page 41 and 42: dissent also pointed out that if §
Page 43 and 44: under §506(b) of the IMDMA stating
Page 45 and 46: Petitioner clearly demonstrated tha
Page 47 and 48: denied Feb. 13, 2008), GDR 08-20. T
Page 49 and 50: parties' rights and intentions was
Page 51 and 52: paternity were based on duress, fra
Page 53 and 54: provide an exception for parents wh
Page 55: Woodstock, IL 60098 815-338-9401 81

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