No Easy Answer… When is a Cut in Child Support Appropriate?
Published in Chicago Lawyer Magazine, December 2019
By Daniel Stefani
In August 2017, Robert, the ex-husband and payor, petitioned the trial court to reduce his $6,500 per month child support obligation based on three alleged substantial changes in circumstances. The parties had been divorced for nine years and the ex-wife, Kris, was unemployed at the time of the judgment.
Specifically, Robert alleged he increased his parenting time with the parties’ youngest child from 15% to 45%. Second, Kris had experienced an increase in wealth and new income from employment and, third, Robert retired and was no longer earning an income from employment. The trial court rejected all three reasons and found there was no substantial change in circumstances to merit a change in child support. The trial court stated that Robert’s increased parenting time was too remote, having occurred five years after the original judgment, but four years before he filed his petition. Also, Kris’ increase in wealth was anticipated at the time of the original judgment and, therefore, not a change. Finally, Robert’s retirement was entirely voluntary.
Robert appealed to the 2nd District Appellate Court which rendered its recent opinion in In re Marriage of Kris Izzo and Robert Izzo, 2019 Ill.App.2d 180623. The appellate court reversed and remanded the case, finding there was a substantial change in circumstances warranting a modification of child support based on his increased parenting time and, specifically, that the trial court was wrong when it found the increase was too remote in time to constitute a change.
The appellate court correctly pointed out that any alleged circumstances at the time of any petition to modify child support must be measured against the circumstances at the time of the most recent and prior court order or judgment. The most recent support order was in the judgment nine years prior and not an intervening agreed order increasing Robert’s overnight parenting time, something entered four years prior. The agreed order stated that all other provisions in the original judgment remained in effect.
The appellate court also held that since an increase in overnight parenting time is enough to establish a substantial change in circumstances, they didn’t need to consider whether Robert’s other allegations rose to the level of a “substantial change.” The appellate court did give direction to the trial court to consider the parties’ wealth and income, the circumstances surrounding Robert’s retirement and his increased parenting time.
At the time of the judgment, the parties had two other minor children, ages 17 and 14, and the question of child support for those minor children was reserved because Robert spent a majority of time with the 17-year-old and 50% of the time with the 14-year-old. At the time, the parties’ youngest child, then age 4, spent more than 85% of overnights with Kris. In addition, Robert was ordered to pay $6,500 a month for their youngest.
The appellate court further held that because Kris had much fewer responsibilities for their youngest, paying the same amount of child support would constitute a windfall to her going forward. The appellate court also held that there is no authority for the trial court’s explanation that a reasonable time frame must be applied to a change in circumstances. The court went on to say Kris had essentially already received a windfall for the four years when there was a 55-45 split of parenting time and there was no remedy for such a circumstance. Going forward, the trial court should adjust for the change in circumstance.
Even though the appellate court failed to consider whether Kris’ increased wealth and income was a change of circumstance sufficient to warrant the modification of child support, the trial court’s finding that it was not sufficient is a dangerous result. Also, the appellate court directed the trial court to consider this on remand, a consideration of the circumstances is much different than a finding that those circumstances were a substantial change warranting a modification.
Since many divorce situations have a stay-at-home parent receiving child support, if increased wealth and future employment occurs, is the trial court saying these circumstances alone could never warrant a modification of the other spouse’s child support obligation? This is dangerous since the new statutory guidelines for child support consider the payee’s income as a major factor.
Ultimately, the appellate court gave direction to the trial court to determine the new support amount under the new guidelines since Robert’s petition to modify was filed after the new guidelines came into effect. The court further directed the trial court to take into account each parent’s wealth and income, Robert’s retirement, and because their youngest resided with Robert more than 146 nights a year, a shared physical care multiplier which would further reduce his child support amount.
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.