In re Marriage of Anderson

No. 3-09-0829

_________________________________________________________________
Filed November 15, 2010
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010

In re MARRIAGE OF ) Appeal from the Circuit Court
MICHAEL ANDERSON, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Petitioner-Appellee, )
)
and ) No. 01-D-428
)
MOLLY A. MURPHY, f/k/a ) Honorable
Molly A. Anderson, ) Jerelyn D. Maher &
) J. Peter Ault,
Respondent-Appellant. ) Judges, Presiding.
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________

Respondent Molly Murphy, f/k/a Molly A. Anderson, appeals from

the postjudgment order resolving all pending issues and dissolving

her marriage to petitioner, Michael Anderson. On appeal, Molly

argues that the trial court erred in (1) calculating net income for

purposes of child support, (2) terminating maintenance, (3)

awarding attorney fees, (4) altering the percentage of

responsibility for the children’s medical expenses, (5) denying her

motion to return personal property, (6) relieving Michael of his

duty to file amended tax returns, and (7) modifying Michael’s

previously imposed financial reporting requirements. We affirm in
part, remand in part, reverse and remand in part, and vacate and

remand in part.

Michael Anderson and Molly Murphy were married in January of

1993. Molly gave birth to twin daughters, Janelle and Kaleigh, on

December 27, 1994.

During the marriage, Michael, who has a master's degree from

the University of Illinois, worked in the financial industry. In

1998, he was employed by Komatsu and earned a gross income of

$61,573. He also received a yearly dividend from stock he owned in

his family’s closely held corporation, AEC Holding Company.

Molly was diagnosed with fibromyalgia in 1990 and was employed

by Caterpillar. After she married Michael, she continued to work

for Caterpillar until the birth of the twins. Shortly thereafter,

she returned to work. In December of 1995, she was placed on

disability due to her illness. At that time, she was earning

$52,000 per year, plus incentives. Molly currently receives a

disability payment from Caterpillar, as well as social security

benefits.

Michael petitioned for dissolution of the marriage in July

2001. On February 13, 2002, an agreed order was entered awarding

custody of the girls to Molly. On August 25, 2004, a judgment of

dissolution of marriage was entered dissolving the marriage and

incorporating a stipulated visitation order. Under the terms of

the stipulation, Michael had visitation with the twins every other

2
weekend, every Wednesday evening and alternating holidays.

On September 2, 2004, the trial court entered a supplemental

judgment that addressed the marital property issues but reserved

determinations of child support and maintenance. According to the

terms of the supplemental judgment, the trial court awarded Mike

his AEC stock as nonmarital property for purposes of maintenance

and directed him to provide Molly with copies of his income tax

returns, including any attached schedules, W-2 forms and 1099

forms. For the children’s medical expenses, Michael was

responsible for 60% of the expenses not covered by insurance and

Molly was responsible for 40%. Marital investments were divided

equally between the parties, and the marital residence was

transferred to Molly in exchange for a $40,000 payment to Michael.

Michael was also ordered to inform Molly of any dividends he

received from his shares of AEC stock and pay 28% of his net

dividends as child support.

In December 2006, the trial court entered an order

establishing that Michael would pay the sum of $900 per month in

reviewable maintenance and that he would pay 28% of his statutory

net income for child support. At that time, Michael was employed

by Nextel, earning a salary of approximately $50,000 per year.

During the next two years, the parties filed numerous

petitions for rules to show cause and motions to modify the terms

of previous orders. In addition to the petitions, Molly filed a

3
"Motion for Return of Children’s Property." The motion alleged

that the girls had taken personal property to Michael’s residence

during their visits and that Michael refused to return the items.

The list of property included American Girl dolls, American Girl

accessories, Disney DVDs, board games, a basketball hoop and

clothing.

In September 2008, Michael filed a motion for review of

Molly’s $900 monthly maintenance award, as well as a petition to

modify the medical expense allocation. In response, Molly filed a

petition to modify child support and maintenance, seeking an

increase in both based on Michael’s new position with Habegger

Corporation, in which he earned approximately $62,500 per year.

The motions and petitions were consolidated, and the trial

court conducted hearings for several days. Michael testified that

his shares of AEC stock had been purchased by the company as part

of a reverse stock split in an attempt to reduce the number of

outstanding shares. The reverse split affected all 11

shareholders. Those five shareholder who owned less than 5% of the

company’s outstanding shares were required to cash out their

holdings based on a fair market valuation. The company forced

Michael to sell all of his shares of stock because he owned only

2.16%. The reverse stock split went into effect on December 31,

2008. He received $192,780 as a result of the split and would no

longer receive AEC dividends.

4
 Testimony and exhibits established that the income generated

by Michael’s shares of AEC stock had been substantial. In 2005, he

received dividend income in the amount of $171,760; in 2006, he

received $197,887; and in 2007, he received $190,845. The call of

the shares by the company resulted in Michael sustaining a capital

loss of $65,743. Michael testified that he used the proceeds from

the sale of the stock to purchase gold coins.

Michael further testified that most of the items listed in

Molly’s motion to return the children’s property were items he had

purchased for the girls or gifts they had received from his

parents. He never refused to return things the children brought

with them to his house. He stated that he packed all of the girls’

belongings up and gave them to Goodwill because he had not had

visitation with them for at least three years.

Molly testified that her medical condition and financial

situation have not changed since 1995. She and the girls have been

receiving social security benefits since 1996 due to her illness.

She testified that she handles all transportation and scheduling

for the children. At the time of the hearing, Michael had not seen

the girls or exercised his visitation for almost three years. The

trial court found that Michael had violated numerous court orders,

but reserved the issue of attorney fees.

In a later petition before the court, Molly again sought

attorney fees for the legal expenses she incurred. In support, she

5
submitted affidavits from four attorneys who represented her during

the divorce proceedings. Molly claimed that she incurred $74,547

in fees seeking to enforce previous court orders and responding to

Michael's motion to terminate maintenance.

Both parties filed financial affidavits in addition to their

testimony. Michael’s affidavit, dated December 1, 2008, indicated

that he was a territory manager for Habegger, earning a monthly

salary of $5,100. Minus deductions for state and federal taxes,

social security and child support, Michael reported a net monthly

earned income of $1,510. He also reported dividend income of

$1,966 from his AEC stock, for a total income of $3,476. His

monthly expenses totaled $3,673. Michael listed $314,578 in

nonmarital assets and $43,470 in nonmarital debt. He also stated

that he had $22,024 in marital assets and no marital debt.

Molly’s 2008 financial affidavit reported a net earned income

of $3,356 per month, plus additional monthly income from

maintenance and child support, for a total income of $7,024 per

month. Molly stated that she had monthly household expenses

totaling $4,034 and medical expenses equivalent to $772. Her total

monthly expenses for the house, the children and her equaled

$8,279. She listed her nonmarital assets at a value of more than

$676,500 and her nonmarital debt as $161,725. The affidavit

further stated that she had $42,000 in marital assets and no

marital debt.

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 The trial court issued a written order addressing all post-

dissolution motions. In its order, the court noted that the

parties had not communicated effectively to resolve any issues and

had not made good-faith efforts to comply with court orders. It

ordered Michael to pay $31,892.88 for past child support and

maintenance. Regarding income tax returns, the court stated that

Michael had not filed the amended returns he was instructed to file

for improperly claiming Kaleigh as a dependent when he failed to

pay child support. To remedy the disadvantage to Molly, the court

directed that Molly be allowed to claim both children as exemptions

on her income tax returns until the girls turned 18 or completed

high school. The court also modified Michael’s financial reporting

obligation to require him to provide Molly with a copy of his W-2

forms each April and to inform Molly of any changes in his

employment.

The trial court declined to treat the sale of Michael’s AEC

stock as income, concluding that the stock was nonmarital property

and that Michael had no control over the sale of the stock. Since

Michael was no longer receiving AEC dividends, the circuit court

found a substantial change in circumstances had occurred and

modified child support to the statutory percentage of Michael’s

current net income from his full-time employment, ordering him to

pay $528.53 every two weeks. The trial court also refused Molly’s

request to require Michael to pay child support based upon any

7
gifts he may receive from his family.

Further, the trial court modified the children’s uncovered

medical expense payment ratio to an equal 50% for both parties.

The court also denied Molly’s request for the return of various

toys and games that the girls kept at Michael’s house, finding that

most of the items were gifts from Michael or his parents.

On the issue of maintenance, the trial court found that the

stock sale dramatically reduced Michael's income and terminated

maintenance effective June 1, 2009. Last, the trial court ordered

Michael to pay $25,000 of Molly’s attorney fees.

ANALYSIS

I

Molly argues that the trial court erred as a matter of law in

determining Michael’s net income for purposes of child support

under section 505(a)(3) of the Illinois Marriage and Dissolution of

Marriage Act (Dissolution Act) (750 ILCS 5/505(a)(3) (West 2008).

Specifically, she claims that the trial court erred by ignoring

three sources of income: (1) the proceeds from the sale of the AEC

stock; (2) bonus/commission income from his new employer; and (3)

gifts and loans that Michael may receive from his parents.

Generally, the trial court’s net income determination and

child support award lie within its discretion. In re Marriage of

Deem, 328 Ill. App. 3d 453 (2002). However, Molly challenges the

court’s interpretation of section 505(a)(3) of the Dissolution Act.

8
The interpretation of a statute is not a matter left to the trial

court’s discretion; it presents a question of law that we review de

novo. Einstein v. Nijim, 358 Ill. App. 3d 263 (2005).

The primary goal of statutory interpretation is to ascertain

and give effect to the legislature’s intent. The best indicator of

legislative intent is the plain and ordinary language of the

statute itself. People v. Pack, 224 Ill. 2d 144 (2007). Where the

statutory language is clear, it must be given effect without resort

to extrinsic aids of interpretation. In re Marriage of Rogers, 213

Ill. 2d 129 (2004). Legislative intent can be ascertained from

consideration of the entire statute, its nature and objective, and

the consequences that would result from construing it one way or

the other. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54

(1990).

A. AEC Reverse Stock Split

Molly first claims that the reverse stock split proceeds

Michael received should be treated as income subject to child

support.

Section 505(a)(3) of the Dissolution Act defines net income as

"the total of all income from all sources," minus several

enumerated deductions. The statute does not define "income" for

purposes of determining child support. In such cases, courts give

undefined words their plain and ordinary meaning. See In re Estate

of Poole, 207 Ill. 2d 393 (2003).

9
 In Rogers, the supreme court discussed the plain and ordinary

meaning of the term "income":

"As the word itself suggests, 'income' is simply

'something that comes in as an increment or addition ***:

a gain or recurrent benefit that is usu[ually] measured

in money ***: the value of goods and services received by

an individual in a given period of time.' Webster’s

Third New International Dictionary 1143 (1986). It has

likewise been defined as 'the money or other form of

payment that one receives, usu[ually] periodically, from

employment, business, investments, royalties, gifts and

the like.' Black’s Law Dictionary 778 (8th ed. 2004)."

Rogers, 213 Ill. 2d at 136-37.

Illinois courts have also defined "income" as "'"a gain or profit"

[citation] and is "ordinarily understood to be a return on an

investment of labor or capital, thereby increasing the wealth of

the recipient" [citations].'" In re Marriage of Worrall, 334 Ill.

App. 3d 550, 553-54 (2002).

Under these definitions, a variety of payments qualify as

income under section 505(a)(3). Courts have included individual

retirement account (IRA) disbursements representing deferred

employment earnings, receipt of company stock from employment stock

options, worker’s compensation awards and the proceeds from

pensions as income under the Dissolution Act. See In re Marriage

10
of Lindman, 356 Ill. App. 3d 462 (2005); In re Marriage of

Colangelo, 355 Ill. App. 3d 383 (2005); Department of Public Aid ex

rel. Jennings v. White, 286 Ill. App. 3d 213 (1997); In re Marriage

of Klomps, 286 Ill. App. 3d 710 (1997). However, using the same

statutory definition, other courts have determined that withdrawals

from self-funded IRAs and proceeds from the sale of residential

property do not constitute income under section 505(a)(3). See In

re Marriage of O’Daniel, 382 Ill. App. 3d 845 (2008); In re

Marriage of Baumgartner, 384 Ill. App. 3d 39 (2008).

In O’Daniel, the appellate court determined that the father’s

IRA disbursements did not constitute income because IRA accounts

are ordinarily self-funded by the individual account holder. The

court noted that "[w]hen an individual withdraws money he placed

into an IRA, he does not gain anything as the money was already

his. Therefore, it is not a gain and not income." O’Daniel, 382

Ill. App. 3d at 850. In reaching its conclusion, the court

reasoned that the only portion of the IRA that would constitute a

gain for the individual, and therefore income for purposes of child

support, would be the interest or appreciation earnings from the

IRA. O’Daniel, 382 Ill. App. 3d at 850; see also Baumgartner, 384

Ill. App. 3d at 57 (where parent sells home and uses proceeds to

purchase new home, proceeds are not actually available as income).

In this case, the proceeds from the reverse stock split of

Michael’s AEC shares did not involve a gain or recurring benefit or

11
employment compensation. Michael received the proceeds as a result

of an involuntary purchase of stock he owned, which resulted in a

capital loss. In reality, the forced sale reduced Michael’s wealth

because he no longer received the yearly dividends the stock

generated. While the dividends or earnings the stock produced

constituted income under section 505(a)(3), the sale of the stock

did not. The cash proceeds took the place of the former shares of

stock. Michael then used those proceeds to purchase gold coins.

The asset already belonged to Michael, and the proceeds were used

to purchase another investment asset. Accordingly, the proceeds do

not qualify as income for child support purposes.

In reaching our conclusion, we note that the distribution of

stock may constitute income for child support purposes if the stock

is sold pursuant to an employment bonus-based option. See

Colangelo, 355 Ill. App. 3d 383. Here, however, the sale of

Michael’s stock was necessitated by the company’s decision to

implement a reverse stock split of minority shareholders, a

decision over which Michael had no control.1 He then utilized the

1
The record indicates that the company forced all share-

holders who owned less than 5% to sell their stock. The letter

to the shareholders explicitly stated that all stockholders who

owned less than 5% "will be cashed out at the current appraised

value per share and will no longer own stock in AEC Holding

Company."

12
proceeds to purchase other investment assets. Under these

circumstances, the proceeds do not qualify as "net income" under

section 505(a)(3).

B. Gifts From Parents

Molly also argues that the trial court erred as a matter of

law in failing to include gifts that Michael may receive from his

family as income under section 505(a)(3) of the Dissolution Act.

In calculating net income, the trial court is required to

include all income, regardless of its recurring nature. Einstein,

358 Ill. App. 3d at 271. The relevant focus under section

505(a)(3) is the noncustodial spouse’s economic situation at the

time the child support calculations are made. If a parent receives

payments that would qualify as "income" under the Dissolution Act,

those payment may not be excluded on the basis that they might not

be received in the future. Rogers, 213 Ill. 2d at 138. The trial

court’s net income determination lies within its sound discretion.

Deem, 328 Ill. App. 3d at 457.

In Rogers, the noncustodial father received yearly gifts and

loans from his parents totaling more than $46,000, which he had

never been required to repay. The court concluded that the annual

gifts were income for purposes of determining child support because

they represented a valuable benefit to the father that enhanced his

wealth and facilitated his ability to support his son. Rogers, 213

Ill. 2d at 137.

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 In this case, Molly requested language in the court’s order

requiring Michael to include 28% of any gifts or loans he may

receive from his parents in his child support payments in

accordance with statutory guidelines. The evidence demonstrated

that Michael received significant annual gifts from his parents,

including substantial "loans" without repayment and a vehicle.

These gifts appear to represent a continuing source of income that

he has received over the course of his adult life. Moreover, they

are a valuable benefit to Michael that facilitate his ability to

support the girls. The trial court should not exclude such

payments simply because similar payments may not occur in the

future. See Rogers, 213 Ill. 2d at 138. Accordingly, any

substantial gifts from Michael's parents should have been included

in his net income, and the trial court abused its discretion in

failing to consider them for child support purposes. We therefore

remand the matter for the trial court to enter a modified child

support order to include as income gifts Michael receives from his

family.

C. Bonus/Commission

Next, Molly argues that the trial court improperly computed

Michael’s net income by failing to include any bonus or commission

that he may earn.

As with Michael's gifts, the trial court's refusal to include

28% of Michael's bonuses in its calculation of net income was an

14
abuse of discretion. In Einstein, the father maintained it was

unfair to include his $10,000 bonus in calculating net income

because it was not guaranteed from year to year. Einstein, 358

Ill. App. 3d 263. The Einstein court held that the bonus payment

he received, although possibly not recurring, should be included

for support purposes. Einstein, 358 Ill. App. 3d at 271. Like the

father in Einstein, Michael's bonus is not guaranteed. However,

Michael is entitled to one if he satisfies certain employee

expectations, and any bonus or commission he earns is income for

purposes of determining child support. Accordingly, the trial

court erred in refusing to include his bonus in the child support

award. On remand, the trial court should order Michael to pay 28%

of any bonus or commission he earns from his employer as child

support.

II through VII

The following material in sections II through VII is not to be

published pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23.

[THE FOLLOWING MATERIAL IS NOT PUBLISHED

PURSUANT TO SUPREME RULE COURT RULE 23.]

Molly claims that the trial court erred as a matter of law and

abused its discretion in terminating her maintenance award.

Section 510 of the Dissolution Act provides that orders for

the payment of maintenance may be modified by a trial court upon a

showing of a substantial change in circumstances. A "substantial

15
change in circumstances" is shown when either the needs of the

spouse receiving maintenance or the ability of the other spouse to

pay maintenance has changed. In re Marriage of Neuman, 295 Ill.

App. 3d 212 (1998). The statutory factors to consider when

reviewing maintenance include: (1) "the property, including

retirement benefits, awarded to each party under the judgment of

dissolution *** and the present status of the property"; (2) "the

increase or decrease in each party’s income since the prior

judgment"; and (3) "any other factors found to be just and

equitable." 750 ILCS 5/510(a-5)(6),(7) & (9) (West 2008). The

party seeking modification of a maintenance order bears the burden

of showing the change and presenting evidence of a motive other

than evasion of financial responsibility. In re Marriage of Imlay,

251 Ill. App. 3d 138 (1993).

In this case, the trial court terminated Michael’s $900 per

month maintenance obligation solely because Michael no longer

received AEC dividends. While the trial court recognized that

Michael no longer owned AEC stock, the court neglected to consider

the change in status of the property as a factor in maintenance

modification. The plain language of section 510(a-5) requires the

court to consider both marital and nonmarital property and the

current status of the property awarded in the dissolution judgment.

750 ILCS 5/510(a-5)(6) (West 2008). Accordingly, the trial court

erred as a matter of law in failing to consider all of Michael’s

16
nonmarital property in terminating Molly’s maintenance award. We

therefore remand this issue to allow the trial court to review

Michael’s request for modification of maintenance in light of the

factors enumerated in section 510(a-5), including the proceeds

Michael received from the reverse stock split.

III

Molly also argues that the trial court erred in altering the

percentage of responsibility for the children’s uncovered medical

expenses from 60%/40% to 50%/50%.

Initially, Molly claims that the court’s modification was

erroneous because the percentage was a "bargained for" provision of

the settlement agreement that was nonmodifiable. We disagree.

Sections 510(a)(1) and 510(a-5) of the Dissolution Act provide

that orders for the payment of child support may be modified by a

trial court. 750 ILCS 5/510(a)(1), 510(a-5) (West 2008). Health

care coverage is a form of child support that may be modified under

these provisions. 750 ILCS 5/505.2(b)(1) (West 2008); In re

Marriage of Turrell, 335 Ill. App. 3d 297 (2002). It is well

established that the trial court has the authority to modify a

child support provision in a dissolution judgment that was entered

in accordance with a settlement agreement. Blisset v. Blisset, 123

Ill. 2d 161 (1988). "[T]he statutory power of a court to reduce

the amount of *** child support is not defeated by the fixing of

the amount of the payments in a settlement agreement which was

17
incorporated in the decree." Lamp v. Lamp, 81 Ill. 2d 364, 370

(1980). Thus, the medical expense provision of the parties’

settlement agreement was modifiable.

Alternatively, Molly argues that the percentage modification

was inappropriate because Michael failed to show a substantial

change in circumstances.

Modifications to the provisions of the agreement pertaining to

the payment of medical expenses are governed by section 510(a) of

the Dissolution Act. 750 ILCS 5/510(a) (West 2008); Turrell, 335

Ill. App. 3d at 310. That section provides that the provision of

any judgment involving maintenance or support may be modified upon

a showing of a substantial change in circumstances. 750 ILCS

5/510(a) (West 2008). An economic change resulting from an

investment may constitute a material change in circumstances

sufficient to modify child support. In re Marriage of Hardy, 191

Ill. App. 3d 685 (1989). The determination that there has been a

substantial change in circumstances to warrant the modification

lies within the trial court’s discretion and will not be disturbed

absent an abuse of discretion. Turrell, 335 Ill. App. 3d at 307.

An abuse of discretion occurs when no reasonable person would agree

with the decision. In re Marriage of Mitteer, 241 Ill. App. 3d 217

(1993).

The record establishes that as a consequence of Michael’s loss

of his AEC stock, he will no longer receive the significant

18
dividends and pass-through income that have been distributed to

him. Michael’s 2008 financial affidavit indicated that he received

$1,940.50 per month from stock dividends. The company paid Michael

$192,780 to buy back the shares he owned in the reverse stock

split. Although these proceeds could be used to purchase other

income producing stocks, the income generated by the new

investments may not result in the significant dividend payments

Michael previously received. Moreover, Michael’s percentage of

responsibility was not dramatically reduced or terminated; he is

still responsible for 50% of the children’s uncovered health

expenses. In light of these circumstances, we cannot say that no

reasonable person would agree with the court's decision. The trial

court did not abuse its discretion by equally apportioning the

children’s uncovered medical expenses between the parties.

IV

Molly also claims that the trial court erred in determining

that Michael was not obligated to return the children’s personal

property.

The disposition of property rests within the sound discretion

of the trial court and will not be disturbed on appeal absent an

abuse of discretion. See In re Marriage of Scafuri, 203 Ill. App.

3d 385 (1990).

In her motion for return of property, Molly sought an order

from the court directing Michael to return certain personal

19
property to the children. At the hearings, Michael testified that

all of the personal items in Molly’s motion were given to the girls

by him or his parents. He further testified that the girls only

used them when they stayed at his house. Since the girls had not

stayed with him for more than three years, Michael donated the

items to Goodwill. It was therefore impossible for Michael to

return the personal property. Given these facts, we find no error

in the trial court’s order denying Molly's request.

V

Next, Molly contends that the trial court abused its

discretion in awarding $25,000 in attorney fees under sections

508(a) and 508(b) of the Dissolution Act.

Attorney fees are primarily the responsibility of the party

for whom the services are rendered. In re Marriage of Walters, 238

Ill. App. 3d 1086 (1992). Section 508(a) allows the court, after

considering the financial resources of the parties, to order a

spouse to pay the fees necessarily incurred by the other party.

750 ILCS 5/508(a) (West 2008). The party seeking an award under

section 508(a) must show an inability to pay and an ability to pay

by the other spouse. Walters, 238 Ill. App. 3d at 1100.

In March 2009, Molly petitioned the court for the attorney

fees she incurred after the trial court's December 28, 2006, order.

Her interim petition sought fees for numerous petitions for rules

to show cause as well as her response to Michael's motion to

20
terminate maintenance. In support, Molly included affidavits from

four attorneys. Attorney Richard Zuckerman submitted affidavits

for fees showing that he expended 14.8 hours for work he performed

on various petitions for rules to show cause and 70.8 hours in

pursuit of issues of child support and maintenance. Attorney

Jeffery Rock filed an affidavit demonstrating that Molly’s attorney

fees with his firm for the months of May and June of 2008 equaled

$3,784.68. Attorney Judith Seritella’s affidavit indicated that

Molly incurred $4,935 in legal fees in the fall of 2008. Finally,

Attorney Steven Wakeman submitted affidavits, totaling more than

$42,886 in fees.

In considering Molly's request, the trial court reviewed the

financial affidavits of assets and expenses submitted by both

parties. Molly's affidavit demonstrated that she had substantial

nonmarital assets, owned the marital home and had no marital debt.

In light of the parties' financial resources, the trial court did

not abuse its discretion in balancing their attorney fees and

determining that Michael had the ability to pay $25,000 of Molly's

fees under section 508(a).

Nevertheless, Molly argues that the trial court should have

awarded additional attorney fees under section 508(b).

Section 508(b) of the Dissolution Act provides:

"In every proceeding for the enforcement of an order or

judgment when the court finds that the failure to comply

21
 with the order or judgment was without compelling cause

or justification, the court shall order the party against

whom the proceeding is brought to pay promptly the costs

and reasonable attorney’s fees of the prevailing party."

750 ILCS 5/508(b) (West 2008).

Section 508(b) is mandatory, not discretionary, and does not allow

for the court to exercise its discretion as to payment if the

defaulting party’s conduct was without cause or justification. 750

ILCS 5/508(b) (West 2008); Walters, 238 Ill. App. 3d at 1098. An

award under section 508(b) does not depend on a party’s inability

to pay the fee or the other party’s ability to pay. Walters, 238

Ill. App. 3d at 1098. However, the fee awarded is subject to a

determination of reasonableness based on factors such as time

spent, the ability of the attorney, and the complexity of the work.

See Richardson v. Haddon, 375 Ill. App. 3d 312 (2007). "[W]here

the allowance of attorney’s fees is contested and a hearing is

requested, the trial court should conduct a hearing on the

question." Scott v. Scott, 72 Ill. App. 3d 117 (1979).

Without conducting a separate hearing, the trial court found

the attorney fees reasonable but awarded Molly an arbitrary sum of

$25,000. However, pursuant to section 508(b), Molly was entitled

to fees for the amount spent in securing child support back

payments, seeking income reporting information, forcing proper

income tax return reporting, and seeking the disclosure of various

22
assets. Under section 508(b), a hearing should have been conducted

to determine the amount of fees she incurred in pursuing petitions

to enforce court orders. See In re Marriage of Eberhardt, 387 Ill.

App. 3d 226 (2008) (separate hearing required to determine fees

under section 508(b)). We therefore reverse the trial court’s

award of attorney fees and remand for a hearing on this issue.

VI

Molly further claims that the trial court improperly resolved

Michael’s failure to file amended tax returns for the 2005 through

2008 tax years.

According to the terms of the parties’ settlement agreement,

Michael was allowed to claim Kaleigh as a dependent provided he

paid child support as ordered. Michael subsequently claimed

Kaleigh as a dependent but failed to meet his support obligation.

As a result, the trial court ordered Michael to file amended

returns for 2005 through 2008, the years in which he violated the

judgment. In its final order, the trial court found that Michael

failed to file the amended income tax returns, but relieved him of

the requirement to do so, noting that amended returns may subject

the parties to an audit and would not be "in anyone’s best

interests." To remedy the disadvantage to Molly, the trial court

allowed her to claim both children as dependents on her income tax

return until the children turned 18 or completed high school.

Under these circumstances, the trial court’s decision is an

23
abuse of discretion. Michael was ordered to pay child support

before claiming an exemption, found in contempt for failing to

follow that agreement, ordered to file amended returns to remedy

the situation, and failed to comply with that order as well. That

a party has failed to comply with a divorce decree constitutes

prima facie evidence of contempt and the burden then shifts to the

contemner to show that the conduct objected to was not willfully

committed. See Palacio v. Palacio, 33 Ill. App. 3d 1074 (1975).

Here, the trial court found Michael’s conduct willful. The trial

court abused its discretion when it relieved him of the duty to

amend his tax returns and to simply switch the years of allowed

exemptions based on mere convenience. Moreover, the trial court's

alternative remedy fails to account for any tax advantage Michael

previously received, the future fluctuation in the parties' income,

or Molly's ability to claim both girls as dependents for all four

subsequent tax years. We therefore vacate that portion of the

trial court’s order allowing Molly to claim both children as

dependents on her income tax returns for the next four years. We

remand to the trial court to direct Michael to file his amended tax

returns as previously ordered.2

2
If, on remand, Molly's loss on her tax returns for 2005

through 2008 can be determined, the court may simply award her a

lump sum payment for that amount without requiring Michael to

file amended tax returns.

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 VII

Last, Molly maintains that the trial court erred in modifying

the full income reporting requirements previously imposed on

Michael.

The dissolution of marriage is entirely statutory in origin

and nature, and courts in dissolution cases must exercise their

powers within the limits of the Dissolution Act. In re Marriage of

Rhodes, 326 Ill. App. 3d 386 (2001). Section 510(a) of the Act

provides in relevant part that the provisions of any judgment

respecting maintenance or support may be modified only upon a

showing of a substantial change in circumstances. 750 ILCS

5/510(a) (West 2008). The determination of the equities of

discharge of obligations will not be reversed on appeal absent an

abuse of discretion. Hardy, 191 Ill. App. 3d 691-92.

Under the dissolution judgment in this case, Michael was

ordered to provide Molly with annual copies of his income tax

returns, including all supporting schedules, W-2 forms and 1099

forms. Although neither party requested a change in Michael’s

reporting requirements, the trial court modified Michael’s

obligation in the final supplemental judgment to allow him to only

provide a copy of his W-2 form from his employer.

We can find no substantial change in circumstances that permit

this modification of the prior order. The record indicates that

Michael owned various stocks and other assets and that he had

25
previously failed to disclose certain brokerage accounts and trust

property. By allowing Michael to provide only his W-2 forms, the

trial court stripped Molly of any ability to review other sources

of income Michael might receive for support purposes. We find that

the trial court’s decision to reduce Michael income reporting

obligation was an abuse of discretion. We vacate the modification

and remand the matter to the trial court to reinstate the prior

reporting requirements. On remand, the court shall direct Michael

to provide Molly with copies of his income tax returns and all

supporting schedules, W-2 forms and 1099 forms, from the date of

his last full annual report under the previous order.

[The preceding material is not to be published pursuant to

Supreme Court Rule 23. 166 Ill. 2d R. 23.]

CONCLUSION

For the foregoing reasons, we affirm and remand for

modification of the May 27, 2009, support order regarding any gifts

and bonuses Michael receives, retroactive to the date of the order.

For the remaining unpublished issues, we remand for reconsideration

of Michael's request to modify maintenance in light of the stock

proceeds. We reverse the award of attorney fees and remand for a

separate hearing to determine the amount of fees related to the

petitions for rules to show cause. We vacate that part of the

court’s order that relieved Michael of his duty to file amended tax

returns for the years 2005 through 2008 and remand with further

26
instruction. We also vacate that portion of the trial court’s

order modifying Michael’s income reporting obligation and reinstate

the previous reporting requirements. We otherwise affirm the trial

court’s order resolving the remaining issues in the dissolution

proceeding. See Walters, 238 Ill. App. 3d 1086.

Affirmed in part; remanded in part; reversed and remanded in

part; and vacated and remanded in part.

CARTER, J., concurs.

JUSTICE McDADE, concurring in part, dissenting in part:

I am in general agreement with the majority’s analysis and conclusions regarding each of the

issues on review save one. For the reasons that follow, I believe the trial court erred in concluding

that the proceeds of the sale of Michael’s AEC stock did not constitute income, and further believe

that those proceeds should be considered in the recalculations of child support and maintenance on

remand. I would reverse the trial court’s order on that issue and, therefore, respectfully dissent from

the majority’s contrary decision.

Molly argues first that the trial court erred in treating the sale as an exchange of one form of

property for another form of property. Instead she contends the funds are income for child support

purposes because income includes "a valuable benefit *** that enhance[]s wealth and facilitate[]s

ability to support." In re Marriage of Rogers, 213 Ill. 2d 129, 137, 820 N.E.2d 386, 390 (2004).

Molly concedes that the stock itself was an "intangible" and "non-spendable" "non-producing asset."

However, once Michael sold it, he acquired "something [he] could spend as he saw fit." Molly asks

this court to order him to pay 28% of those funds as child support. Second, Molly asserts that under

section 510(8) of the Dissolution Act the income from the sale of the stock is property that trial court

27
should have considered in determining Michael’s maintenance obligation.

Michael responds Rogers is distinguishable because the sale of his stock was not a "gift" and

the proceeds of the sale are not income because "[t]he cash proceeds from the stock purchase ***

took the place of the former shares of stock, as another form of property." Michael notes the

property in its former form (shares of stock) was non-marital property, and he relies on In re

Marriage of O'Daniel, 382 Ill. App. 3d 845, 850, 889 N.E.2d 254, 258 (2008), for the proposition

that because the "property" already belonged to him as non-marital property the change in form of

the property from stock to cash does not make the cash "income."

In O’Daniel, the question was whether an IRA distribution constituted income. The court

held that:

"[w]hen an individual withdraws money he placed into an IRA, he
does not gain anything as the money was already his. Therefore, it is
not a gain and not income. The only portion of the IRA that would
constitute a gain for the individual would be the interest and/or
appreciation earnings from the IRA." O'Daniel, 382 Ill. App. 3d at
850, 889 N.E.2d at 258.

I find Michael’s argument to be unpersuasive. As his non-marital property, the stock

represented an investment. Thus, O’Daniel actually supports Molly’s position that Michael’s

earnings from the investment constitute income. O’Daniel holds that any appreciation in value of

the stock "would constitute a gain." Michael notes he suffered a capital loss from the transaction.

Under O’Daniel, the amount of the capital loss goes to the question of whether, as a result of the

transaction, his wealth was enhanced, and may reduce the amount of real income generated from the

proceeds of the sale. However, a capital loss would not change the nature of the earnings generated

by the asset, which in this case constitutes cash proceeds of sale, from income to property. See also

In re Marriage of Colangelo and Sebela, 355 Ill. App. 3d 383, 392, 822 N.E.2d 571, 578 (2005)

28
(“even though the unrealized stock options were allocated to the parties as marital property, the

realized stock distribution met the definition of ‘income’ for purposes of determining child

support”).

Michael also notes that the company required him to cash out his shares as a result of its

decision to institute a reverse stock split. While the fact that Michael did not choose to sell his asset

but was forced to sell is relevant to the question of his good faith in the transaction, it is irrelevant

to the question of whether the transaction generated spendable earnings that enhanced his wealth.

Michael contends that "[t]he concept of property is distinct from income; otherwise, all

property transactions, which naturally result in another form of property, would be considered

income." However, if cash proceeds are held to be just another form of property, then no sale of a

capital asset would ever generate income. As our supreme court has noted:

"As the word itself suggests, ‘income’ is simply ‘something
that comes in as an increment or addition ***: a gain or recurrent
benefit that is usu[ually] measured in money ***: the value of goods
and services received by an individual in a given period of time.’
Webster's Third New International Dictionary 1143 (1986). It has
likewise been defined as ‘[t]he money or other form of payment that
one receives, usu[ually] periodically, from *** investments, royalties,
gifts and the like.’ Black's Law Dictionary 778 (8th ed.2004)."
(Emphases added.) Rogers, 213 Ill. 2d at 136-137, 820 N.E.2d at
390.

I believe this court should hold that the proceeds of Michael’s stock sale constitute income.

29