The Guide to the Domestic Relations Trial Court

March, 2010 Article - Free Preview

Ex-husband Stuck With $7,500 Monthly Support Despite Mortgage Meltdown


Judge Elizabeth Loredo Rivera denied the ex-husband’s Petition for Modification and ordered him to continue paying $7,500 per month in unallocated support as set forth in the original Judgment.  She also found that he owed $133,433 in past due support inclusive of interest and found him in willful contempt of Court.

The parties were divorced on January 10, 2007.  In a marriage of twenty-two (22) years, they had three children, two of whom were emancipated and one of whom is still a minor.  In the original divorce, the wife received approximately $720,000 and the husband received approximately $486,000 as a property settlement. In addition, the parties equally divided their retirement assets. He was also ordered to pay his wife $7,500 per month unallocated support which obligation was reviewable 48 months following the divorce.

In April of 2008, the ex-husband, represented by Paul Braun and Lauren Dropkin of Braun & Edwards, Chartered, filed an Amended Petition for Modification, after his initial petition was dismissed, alleging that the ex-husband’s financial circumstances materially changed.  The ex-wife, represented by Jeffrey Brend of Levin & Brend, P.C. filed a Petition for Rule claiming that the ex-husband was in arrears in the amount of $124,900.

The ex-husband worked as a residential mortgage loan originator and was mainly in the sub-prime mortgage market.  He claimed that his income shrunk from $249,645 in 2006 to $28,738 in 2008 and $28,785 for the first 8 months of 2009.

The ex-husband asserted he was current in his support when he filed his Petition to Modify.  He also argued that he liquidated financial assets that he was awarded in the divorce, because of his reduction in income beginning in 2007.  He said he did that to maintain his financial obligations, including payment of his reasonable living expenses.  His 2008 net income was insufficient to meet his own reasonable living expenses.  His gross income from all sources of $55,731 for 2008 was insufficient for him to pay the court ordered family support of $7,500 per month, or $90,000 per year.

The ex-husband also argued that while his ex-wife was unemployed at the time of entry of the Judgment for Dissolution of Marriage, she became employed part-time in September 2008 and full-time since August 2009.  She now earned $15 per hour, or $900 net every two weeks.

The ex-wife argued that the ex-husband was not entitled to a modification of support because he voluntarily accepted a decrease in income by refusing to seek additional sources of income since January 10, 2007.  She also offered evidence that the ex-husband’s circumstances did not amount to a substantial change in circumstances since – in addition to not seeking additional sources of income – he chose to deplete his assets, and to spend excessively.  The ex-husband had the ability to be gainfully employed in alternative employment or similar work, but chose not to explore those options.  As such, the ex-wife asked that the court impute additional income to the ex-husband because of his voluntarily underemployment.

Judge Rivera’s Conclusions

The party seeking a modification of support, the ex-husband, has the burden to demonstrate a substantial change of circumstances (750 ILCS 5/510).  It is also the ex-husband’s obligation to present evidence of motive, other than evasion of financial responsibilities for support of the children, in support of the Petition for Modification (In Re Marriage of Horn, 272 Ill. App. 3d, 472, 476-477, 209 Ill. Dec. 130 (4th Dist. 1995)).  Maintenance can be paid from the income or property of the payor spouse (750 ILCS 5/504(a)).  Indeed, the Court in Hari, held that “Section 505(a) does not limit what assets the trial court can reach to assure the child support award is satisfied,” (In Re Marriage of Hari, 345 Ill. App. 3d 1116, 1122, 281 Ill. Dec. 518, 523, 804 N.E.2d 144, 149 (4th Dist. 2004)). In addition, the court can consider the financial resources and needs of the non-custodial parent in determining child support (750 ILCS 505(a)).

Most recently, the court in Gosney held that:

Illinois appellate courts have developed three primary factors to consider in determining when it is proper to impute income to a noncustodial parent.  In order to impute income, a court must find that one of the following factors applies: (1) the payor is voluntarily unemployed (In re Marriage of Adams, 348 Ill.App. 3d 340, 809 N.E.2d 246, 284 Ill. Dec. 124 (2004)); (2) the payor is attempting to evade a support obligation (Sweet, 316 Ill.App.3d 101, 735 N.E.2d 1037, 249 Ill. Dec. 212); or (3) the payor has unreasonably failed to take advantage of an employment opportunity (In re Marriage of Hubbs, 363 Ill.App 3d 696, 843 N.E.2d 478, 300 Ill.Dec.220 (2006))," (In Re Marriage of Gosney, 2009 WL 3336060 (3rd Dist. 2009)).

A court can impute income to a support obligor if it finds at least one of three requisite conditions exist.

Additionally, the Court in Thomas held that ERISA permits a trial court’s entry of a QDRO to assign pension and other retirement benefits to a former spouse to satisfy a judgment for past due maintenance and child support payments.  (In re Marriage of Thomas, 339 Ill. App.3d 214, 273 Ill. Dec 647, 789 N.E.2d 821 (2nd Dist. 2003)).  The Court went on to say that “society places a higher value on the timely payment of maintenance and child support than on the future receipt of pension benefits.”  Id.

The court in Sweet  held that if a spouse is voluntarily underemployed child support shall be based on earning potential.  The court in Sweet, in finding that the husband was underemployed, stated as follows: “He may be able to pay an additional amount by working more diligently at his current job, by supplementing his income with part-time work, by cutting expenses elsewhere, by using savings, or by winning the lottery.  All of these options would permit respondent to meet his child support obligation without abandoning his chosen career.”  (In re the Marriage of Sweet, 735 N.E.2d 1037, 1041 (2nd Dist. 2000)).  The court in Sweet imputed additional income to the payor spouse and found the payor spouse liable for support based upon the imputed income.

The court in In re the Marriage of Deike, held that courts have the authority to compel parties to pay support at a level commensurate with their earning potential and may impute additional income to a payor who is voluntarily underemployed.  In Deike, the husband legitimately lost his job, but then chose to open a bar and grill.  In find that the husband was underemployed and denying any modification of his support obligation, the court stated as follows: “The fact that Robert lost [money]…related to opening the bar and grill…does not amount to a substantial change in circumstances, where he made that choice…before purchasing the business, Robert should have been concerned about how he would continue to support his children.”  (In re the Marriage of Deike, 887 N.E.2d 628, 632 (4th Dist. 2008)).  The court in Deike imputed additional income to the payor spouse and found the payor spouse liable for support based upon the imputed income.

Here, the ex-husband became aware, at least as early as the fall of 2007, if not sooner, that the mortgage lending market was “in turmoil”, and that he “needed to do something  different, extra”.  Rather than take measures to assure his ability to meet his support obligations to his child and ex-wife, he spent $400 in October 2007 to attend a seminar to explore marketing his loan business.  Thereafter, he paid $100 per month to have a mailing sent out.

The ex-husband testified that he did all he could to improve his business, and that he has a reduced income through no fault of his own.  He argues that he is unable to meet his support obligations, and that he is entitled to a modification of his obligation.  The ex-husband’s actions, however, belie his claim that he is unable to meet his obligations.  His actions – and his lack of actions – also reflect a disturbing attempt to avoid his financial obligations by hiding behind the economic crisis.  Indeed, the evidence overwhelmingly reflects that the ex-husband is voluntarily underemployed, that he is attempting to evade his support obligations, and that he has unreasonably failed to take advantage of an employment opportunity.  In addition to the lost opportunities relating to the acquisition of foreclosed properties, he made no job searches in Illinois from 2007 to present.  He applied for one job opportunity in the summer of 2009 in Florida, but withdrew his name from consideration.  Moreover, the ex-husband lacks credibility; this is clearly reflected in many of his actions, and was evident throughout the hearing.  See attachments for full recitation of husband’s shortcomings.

The ex-wife, on the other hand, has done everything that she could to fulfill her affirmative obligation to seek suitable employment by enrolling in school and maintaining employment since the entry of the parties’ Judgment for Dissolution of Marriage while at the same time maintaining a household for the parties’ child.  See attachments for full recitation of wife’s efforts.

The ex-wife has fulfilled her obligations to obtain full-time employment pursuant to case law and is still in need of support from the ex-husband in order to meet her and her daughter’s reasonable and actual living expenses.

The failure to make child support payments as required by court order is prima facie evidence of contempt; the burden then rests on the alleged contemnor to show that his noncompliance was not willful or contumacious and that he has a valid excuse for his failure to pay.  The defense of poverty and misfortune has been found applicable only in the most extreme cases, notably those in which a party has no money and no way of getting money to meet support obligations, (In Re the Marriage of Sharp, 860 N.E. 2d 539 (2nd Dist. 2006)).

In Sharp, the Respondent testified that he spent the trust money on monthly leasing payments and repairs for his Porsche, attorney fees, rent and other unidentified expenses, while he was neglecting child support and maintenance payments.  The Respondent chose to spend the money he received on his own needs rather than on maintenance and child support.  The court held “he must suffer the consequences of that choice” and held him in contempt of court and liable for the full amount of support he was obligated to pay.  In addition, where an ex-spouse fails to pay without cause or justification, an award of attorney fees is mandatory, (750 ILCS 5/508 (b)).

The ex-husband had not met his burden to demonstrate a substantial change of circumstances, (750 ILCS 5/510).  On the contrary, the evidence overwhelmingly demonstrated that his motive in seeking the modification was to evade his financial responsibilities for support.  He was also voluntarily underemployed and had failed to take advantage of an employment opportunity.  His failure to comply with the Judgment for Dissolution of Marriage was willful and contumacious, and he was found in indirect civil contempt of court.

For more information, see Cook County Docket Number 05 D 04042

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