In re Marriage of Baumgartner

SECOND DIVISION
Date Filed: June 30, 2008

No. 1-06-2866

In re MARRIAGE OF ) Appeal from the
SUSAN LYNN BAUMGARTNER, ) Circuit Court of
)
Petitioner-Appellant, ) Cook County.
)
and ) No. 1997 D 019363
)
CRAIG BAUMGARTNER, ) Honorable
) Grace G. Dickler,
Respondent-Appellee. ) Judge Presiding.

JUSTICE HALL delivered the opinion of the court:

The petitioner, Susan Lynn Baumgartner, now known as Susan

Lynn Ginensky (Susan), filed a petition seeking to hold her

former husband, respondent Craig Baumgartner (Craig), in indirect

civil contempt for failure to comply with an order for child

support. The circuit court of Cook County ordered Craig to pay

additional amounts of child support but refused to enter a

contempt finding and sanctioned Susan for a discovery violation.

Susan appeals, raising the following issues: (1) whether the

parties' settlement of Craig's 2001 child support obligation was

enforceable; (2) whether the proceeds from mortgage loans and the

proceeds from the sale of residential property are income for

determining child support; (3) whether Craig's nonreimbursed

business expenses are deductible in determining his net income

for child support purposes; (4) whether the circuit court erred

in requiring Susan to prove that Craig's unexplained bank

deposits were income for child support purposes; (5) whether the

circuit court erred when it refused to hold Craig in indirect

civil contempt of court; and (6) whether Susan's conduct in
No. 1-06-2866

subpoenaing Craig's attorneys for deposition was sanctionable.

Procedural History

The parties' marriage was dissolved in 1998. Pursuant to

the judgment for dissolution of marriage, the parties had joint

custody of their only child, Maxwell Taylor Baumgartner (Max).

However, Max was to reside with Craig.

On April 19, 2001, an agreed order was entered modifying the

judgment for dissolution of marriage (the agreed order). The

agreed order provided that Max was to reside with Susan and set

forth Craig's child support obligation as follows:

"Effective January 1, 2001 Craig shall pay $762 per

month to Susan as child support which is 20% of his

estimated net income. At this time, it is not known whether

Craig's monthly net income will exceed $3,809 due to

overtime, bonuses, or raises. Accordingly, on an annual

basis, within 30 days after Craig receives his W-2 statement

from his employer at year end, he will: (i) provide a copy

of his W-2 to Susan along with a copy of his Year-end pay

stub, and (ii) recompute his net income in light of any

additional income and/or deductions in excess of the amount

upon which this order is based; and (iii) if the amount of

child support paid during the prior year was less than 20%

of Craig's actual net income from,1 he will pay Susan the

1
There appears to be missing text in the order.

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difference between the amount paid and the recomputed 20%

figure so that the total amount will equal 20% of Craig's

net income, as defined by 750 ILCS 5/505. In addition,

Craig will provide Susan with copies of his income tax

returns on an annual basis within 14 days after filing the

returns."

On June 3, 2005, Susan filed a petition seeking to have

Craig held in indirect civil contempt for failure to comply with

the agreed order. Susan alleged that Craig had paid only the

minimum child support amount for the years 2001 through 2004, and

had refused to pay the excess amounts due under the re-

computation formula in the agreed order. Susan further alleged

that Craig had failed to provide her with proof of his income as

required by the agreed order. Susan sought attorney fees and

costs.

On June 29, 2005, pursuant to section 2-619 of the Code of

Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2004)) Craig

filed a motion to strike and dismiss the allegations relating to

the claimed arrearage for 2001. Relying on the doctrine of

equitable estoppel, Craig alleged that Susan and he had entered

into a settlement agreement resolving the amount of child support

due for 2001. Attached to the motion was a copy of a letter from

Susan's attorney to Craig's attorney containing the terms of the

settlement agreement, a facsimile confirmation from Craig's

attorney accepting the settlement offer and a copy of the Craig's

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cancelled check demonstrating payment of the settlement amount.

In her response to the motion, Susan argued that

extrajudicial modifications of support obligations were not

enforceable. She further argued that Craig could not rely on

equitable estoppel because he had not relied to his detriment on

the agreement and that there was no consideration for the

settlement agreement. On August 17, 2005, the circuit court

granted Craig's motion to dismiss the claim for child support for

2001 and set the case for trial on the remaining allegations of

the petition.

On October 6, 2005, Craig filed a motion for partial summary

judgment on Susan's claims that 20% of the proceeds of a

residential mortgage loan Craig obtained and 20% of the proceeds

from the sale of Craig's homestead property should have been paid

to her as child support for Max.2 Susan responded that summary

judgment was not appropriate as there existed questions of fact

as to what happened to the proceeds from the sale of his

residence. She further argued that there was no authority under

section 505 of the Illinois Marriage and Dissolution of Marriage

Act (the Act) (750 ILCS 5/505 (West 2004)) to exclude proceeds

from residential property transactions or loan proceeds from

2
The homestead property referred to was a residence Craig

acquired when he lived in California, sometime after the

dissolution of the parties' marriage.

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income for purposes of determining child support. Following a

hearing, the circuit court granted the motion for partial summary

judgment.

On December 21, 2005, Susan's attorney issued a subpoena for

deposition to Craig's wife, Jeanine Baumgartner. Susan's

attorney also issued subpoenas for deposition and document

production to Craig's attorneys, Julie Campbell and Robert

Ramirez, Jr.

On December 29, 2005, Craig filed a motion to quash the

deposition subpoenas and for sanctions. In his motion, Craig

alleged that the subpoenas issued to his attorneys sought

discovery of material protected by the attorney-client privilege

and were issued to harass, annoy and disqualify the attorneys

from representing him. Craig sought sanctions pursuant to

Supreme Court Rule 137 (155 Ill. 2d R. 137) and Supreme Court

Rule 219(d) (210 Ill. 2d R 219(d)).

On January 18, 2006, Susan filed her response to the motion

to quash. Susan maintained that the subpoena for deposition to

Ms. Campbell was based on Ms. Campbell's association with Craig's

consulting business and not their attorney-client relationship.

Susan further maintained that Craig had waived the attorney-

client privilege with respect to Mr. Ramirez when he asserted the

affirmative defense that he relied on Mr. Ramirez's advice in

this case. On January 24, 2006, the circuit court entered an

order denying the motion to quash as to Jeanine Baumgartner but

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No. 1-06-2866

granting the motion as to Ms. Campbell and Mr. Ramirez.

On January 26, 2006, a hearing was held on Susan's petition

to hold Craig in contempt. Susan's attorney questioned Craig

about deposits made to joint accounts. After Craig answered

numerous times that he did not recall the source of the deposit,

his attorney objected on relevancy grounds. The circuit court

sustained the relevancy objection on the grounds that there was

no proof that the deposits were Craig's or that the deposits were

from income over and above what he had already disclosed as

income. Under questioning by his own attorney, Craig explained

that in 2002, some of the deposits could have come from his

NeoPharm paychecks. He further explained that the deposits could

have been made by his present wife, Jeanine, from her income or

accounts.

On direct examination by his attorney, Craig testified as to

business expenses he had used to arrive at his net income to

determine his child support obligation. Susan's attorney

stipulated to the evidence of the deductions but not to the

propriety of the deductions. The case was continued for

decision.

Prior to the court's ruling on the petition, Craig offered

the sum of $2,554.48 to Susan to settle the 2005 child support

amount, in exchange for a complete release of his 2005 child

support obligation. On March 6, 2006, Susan filed a petition for

indirect contempt of court against Craig for his failure to pay

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the child support he owed for 2005.

On March 14, 2006, the circuit court entered its order as to

the petition for indirect civil contempt for the years 2002, 2003

and 2004. The court ruled as follows: (1) Craig's failure to pay

the balance of child support due for those years was not

contemptuous; (2) Craig was permitted to deduct his business

expenses, medicare tax, social security payments, actual federal,

state and local taxes paid and his health insurance premiums from

his gross income to determine his net income for child support

purposes; (3) Craig owed $1,664.95 for 2002, $5,035.42 for 2003

and $4,500 for 2004 child support; (4) no interest was due for

those amounts pursuant to section 505 of the Act (750 ILCS 5/505

(West 2006)); and (5) Susan's request for attorney fees was

denied but leave was granted to the parties to file for

contribution. Craig was ordered to pay the above sums to Susan;

his petition for sanctions remained pending.

The court also ruled on Susan's petition on Craig's 2005

child support obligation. The court found that Craig's failure

to pay the balance due for 2005 was not contemptuous, and he was

permitted to take the aforementioned deductions from his gross

income to arrive at his net income for child support. The court

calculated the balance of his support obligation for 2005 to be

$3,526.06. The court denied Susan attorney fees but again

granted leave to file for contribution.

On June 8, 2006, the circuit court heard argument on Craig's

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motion for sanctions. The court denied Rule 137 and Rule 219(d)

sanctions but awarded sanctions for the issuance of the subpoenas

to Craig's attorneys, stating as follows:

"But I really feel that issuing those subpoenas to

opposing counsel went beyond what was appropriate in this

case. It went beyond advocacy, I believe. I believe that

it was for the purpose of either causing a disqualification

of attorneys or for the purpose of harassment of those

attorneys, and that I cannot countenance."3

On September 8, 2006, the circuit court ordered Susan to pay

$7,579.50 in attorney fees to Craig. On September 25, 2006,

Susan filed her notice of appeal.

A N A L Y S I S

I. Dismissal of Claim for 2001 Child Support

A. Standard of Review

The circuit court granted Craig's section 2-619 motion and

dismissed Susan's claim for unpaid child support for the year

2001. The court reviews de novo an appeal from a section 2-619

dismissal. In re Marriage of Morreale, 351 Ill. App. 3d 238,

240, 813 N.E.2d 313 (2004).

3
According to the court's written order, sanctions were

denied as to Supreme Court Rule 213(b) (Official Reports Advance

Sheet No. 26 (December 20, 2006), Rule 213(b), eff. January 1,

2007) but granted as to Rule 219(d).

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B. Discussion

1. Enforceability of 2001 Judgment Modification Order

Both parties submit that the agreed order violates the Act,

albeit for different reasons. Susan contends that the circuit

court erred in entering the agreed order because the order

allowed Craig, rather than the court, to determine the amount of

child support he was to pay. Craig contends that the agreed

order violates section 505(a)(5) of the Act because the circuit

court was able to express the child support amount in a dollar

figure. We disagree with the parties.

Prior to the entry of the agreed order in this case, section

505(a)(5) required that the support amount be stated in dollar

amounts. 750 ILCS 5/505(a)(5) (West 1998). In In re Marriage of

Mitchell, 181 Ill. 2d 169, 682 N.E.2d 281 (1998), the supreme

court held that a child support order stated as a percentage

rather than a dollar amount was not permitted under section

505(a)(5). However, the court concluded that the order was

voidable, not void, as the circuit court had jurisdiction of the

parties and the subject matter though its decision was erroneous.

As a voidable order, it was not subject to collateral attack.

The parties had not appealed from the support order but were

before the court on a petition for modification. Noting that the

parties had the opportunity to fully litigate the question when

the support order was entered as well as the opportunity to

bargain for and benefit from the terms of the settlement

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agreement, the court concluded that the trial court's order was

not subject to a collateral attack. Mitchell, 181 Ill. 2d at

177.

In the present case, both Susan and Craig agreed to the

entry of the modification order; neither party appealed the

agreed order. Therefore, the order may not now be attacked

collaterally by the parties.

Moreover, subsequent to Mitchell, the legislature amended

section 505 (a)(5), which now provides as follows:

"If the net income cannot be determined because of

default or any other reason, the court shall order support

in an amount considered reasonable in the particular case.

The final order in all cases shall state the support level

in dollar amounts. However, if the court finds that the

child support amount cannot be expressed exclusively as a

dollar amount because all or a portion of the payor's net

income is uncertain as to source, time of payment, or

amount, the court may order a percentage amount of support

in addition to a specific dollar amount and enter such other

orders as may be necessary to determine and enforce, on a

timely basis, the applicable support ordered." 750 ILCS

5/505(a)(5) (West 2000).

In this case, the agreed order stated that "Craig's net

monthly income *** will be approximately $3,809." The agreed

order provided further in pertinent part as follows:

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"Effective January 1, 2001, Craig shall pay $762 per

month to Susan as child support which is 20% of his

estimated net income. At this time it is not known whether

Craig's monthly net income will exceed $3,809 due to

overtime, bonuses, or raises."

The above language indicates that there was some uncertainty

about the exact amount of Craig's monthly income from which to

determine his child support obligation. As a result and with the

parties' agreement, the circuit court modified the support order

to provide a specific dollar amount of support based on the known

figure and further provided that Craig would pay 20% of any

additional income not accounted for by the stated dollar amount.

Under section 505(a)(5), the court had the authority to enter the

order providing for a percentage of Craig's income as child

support.

The cases Susan relies on do not support her position that

the agreed order is unenforceable. Contrary to Susan's argument,

in In re Marriage of Blaisdell, 142 Ill. App. 3d 1034, 492 N.E.2d

622 (1986), the court held that the "[d]etermination of child

support involves no inherent judicial powers." Blaisdell, 142

Ill. App. 3d at 1043. In In re Marriage of Takata, 304 Ill. App.

3d 85, 709 N.E.2d 715 (1999), the court did state that

determining a spouse's net income for setting child support is

part of the judicial function. Takata, 304 Ill. App. 3d at 92.

However, the issue in Takata was whether a mathematical error in

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a judge's calculation of net income could be corrected via a nunc

pro tunc order. Because it was not a clerical error but a

judicial one, it was outside the power of a nunc pro tunc order.

Tataka, 304 Ill. App. 3d at 93.

Susan cites In re Marriage of Stribling, 219 Ill. App. 3d

105, 579 N.E.2d 6 (1991) wherein the court stated, "'[c]ourts

have no power to delegate any of their duties unless clearly

authorized by law.'" Stribling, 219 Ill. App. 3d at 109, quoting

Smallwood v. Soutter, 5 Ill. App. 2d 303, 309, 125 N.E.2d 679.

Noting that the legislature had vested the responsibility of

establishing and modifying visitation schedules in the courts,

the court held that the trial court could not leave the

determination of whether a father should have visitation with his

daughter to the discretion of the Department of Children and

Family Services. Stribling, 219 Ill. App. 3d at 109. In

contrast, section 505(a)(5) grants the circuit court the

authority to use percentages and to enter orders relating to the

determination of child support.

We conclude that the agreed order was valid under the

authority granted to the circuit court under section 505(a)(5)

of the Act to enter the orders necessary to determine and enforce

the child support ordered.

2. Enforceability of Parties' Private Agreement

Susan contends that the parties' agreement as to the 2001

child support obligation is unenforceable because only the court

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has the authority to modify child support. "The modification of

a child support obligation is a judicial function, administered

exclusively by the court as a matter of discretion." Blisset v.

Blisset, 123 Ill. 2d 161, 167, 526 N.E.2d 125 (1988). In

Blisset, the supreme court held that in order to create an

enforceable modification agreement, parents must petition the

court and satisfy the court that their agreement is in the best

interests of the child. Blisset, 123 Ill. 2d at 168. In

Blisset, the court held an agreement to waive child support in

exchange for a waiver of visitation rights was not enforceable

because the parties did not seek court approval of their

agreement. See Blisset, 123 Ill. 2d at 168; see also In re

Marriage of Smith, 347 Ill. App. 3d 395, 400-01, 806 N.E.2d 727

(2004) (even if mother told the father that if he continued to

purchase things for the children, he need not pay child support,

such an "agreement" was not enforceable absent court approval).

In the present case, the agreed order contemplated that

after Craig provided the required financial information, the

parties would come to an agreement regarding the additional

amount of child support that was due. Therefore, the parties

were acting under the direction of the circuit court's order when

they entered into an agreement as to the 2001 child support

obligation and, as such, had the circuit court's approval to

enter into such an agreement.

Moreover, we agree with the circuit court that the parties'

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agreement was not a modification of the child support order. The

August 19, 2002, letter from Susan's attorney to Craig's attorney

refers to the settlement as a "support adjustment" in accordance

with the agreed order. The agreement did not change Craig's

obligation to pay 20% of his net income to Susan for child

support. Therefore, unlike Blisset or Smith, the parties'

agreement as to the additional support amount due for 2001 did

not require court approval as it was not a modification of

Craig's support obligation.

As the parties' agreement was not a modification of Craig's

child support obligation, we need not reach Susan's alternative

arguments.

II. Loan Proceeds and Property Sale Proceeds

A. Standard of Review

The de novo standard of review is applicable to a circuit

court's grant of summary judgment. Prowell v. Loretto Hospital,

339 Ill. App. 3d 817, 822, 791 N.E.2d 1261 (2003). The court

also applies de novo review to the construction of a statute.

R&B Kapital Development, LLC v. North Shore Community Bank &

Trust Co., 358 Ill. App. 3d 912, 916, 832 N.E.2d 246 (2005).

B. Discussion

In child support cases where the statutory guidelines apply,

a court determines the minimum amount of support based on the

applicable guideline percentage of the parent's "net income."

750 ILCS 5/505(a)(1) (West 2004). Section 505(a)(3) defines "net

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income" as follows:

"'Net income' is defined as the total of all income

from all sources, minus the following deductions:

(a) Federal income tax (properly calculated

withholding or estimated payments);

(b) State income tax (properly calculated

withholding or estimated payments);

(c) Social Security (FICA payments);

(d) Mandatory retirement contributions required by

law or as a condition of employment;

(e) Union dues;

(f) Dependent and individual

health/hospitalization insurance premiums;

(g) Prior obligations of support or maintenance

actually paid pursuant to a court order;

(h) Expenditures for repayment of debts that

represent reasonable and necessary expenses for the

production of income, medical expenditures necessary to

preserve life or health, reasonable expenditures for

the benefit of the child and the other parent,

exclusive of gifts. The court shall reduce net income

in determining the minimum amount of support to be

ordered only for the period that such payments are due

and shall enter an order containing provisions for its

self-executing modification upon termination of such

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payment period." 750 ILCS 5/505(a)(3) (West 2004).

Courts should construe a statute in a way that avoids absurd,

unreasonable, unjust or inconvenient results. In re Mary Ann P.,

202 Ill. 2d 393, 406, 781 N.E.2d 237 (2002).

1. Mortgage Loan Proceeds

Susan maintains that the mortgage loan Craig took out to

purchase his present residence should be included in his net

income for child support purposes. Susan relies on this court's

decision in In re Marriage of Rogers, 345 Ill. App. 3d 77, 802

N.E.2d 1247 (2003) (Rogers I), aff'd, 213 Ill. 2d 129, 820 N.E.2d

356 (2004) (Rogers II).

In Rogers I, the father argued that gifts and loans from his

parents were not income. After determining that the gifts were

income, this court rejected the father's argument that because

proceeds of loans to him from his parents were not income for

federal tax purposes, they are not income for determining child

support. This court held that section 505, not the tax code,

defined income for child support purposes. In the absence of any

authority that loan proceeds were excluded from net income, they,

along with the gifts, were to be included in calculating child

support payments. Rogers I, 345 Ill. App. 3d at 80-81.

The supreme court granted leave to appeal and affirmed the

appellate court. Rogers II, 213 Ill. 2d 129. Noting that

section 505 did not separately define "income," the court relied

on its plain and ordinary meaning as follows:

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"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.' [Citation.] It has

likewise been defined as '[t]he money or other form of

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

employment, business, investments, royalties, gifts, and the

like.'" Rogers II, 213 Ill. 2d at 136-37, quoting Webster's

Third New International Dictionary 1143 (1986); and Black's

Law Dictionary 778 (8th ed. 2004).

After agreeing that gifts were to be included in net income, the

court observed as follows:

"This leaves only the matter of the annual 'loans'

given to the father by his parents. For purposes of

determining a parent's net income, section 505 of the Act

authorizes the deduction of amounts expended in repayment of

certain types of debts. There is no corresponding provision

authorizing the exclusion of loan proceeds. Accordingly,

the appellate court reasoned that under the language of the

Act, the circuit court acted correctly when it included the

money the father's parents loaned him when it calculated his

support obligations. [Citation.]

Although the father challenges the appellate court's

construction of the statute, we have no occasion in this

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case to address whether and under what circumstances loan

proceeds are properly regarded as an element of income for

child support purposes. The reason for that is that the

sums at issue are loans in name only." Rogers II, 213 Ill.

2d at 139-40.

The father had never been required to repay the "loans" received

from his parents. Therefore, the court concluded that they

should be treated like the gifts to him from his parents and his

income from his teaching job and upheld the appellate court's

determination that they should be considered in determining the

father's net income under section 505(a)(3). Rogers II, 213

Ill. 2d at 140.

Subsequently, in In re Marriage of Tegeler, 365 Ill. App. 3d

448, 848 N.E.2d 173 (2006), the Second District Appellate Court

disagreed with the determination in Rogers I that loan proceeds

were to be considered income under section 505(a)(3). One of the

issues in Tegeler was whether a line of credit was a resource for

child support purposes. After noting that Rogers II did not

reach the issue of whether loans would qualify as income under

section 505(a)(3), the court stated as follows:

"We believe that, in general, loans should not be

considered income. We note that the Black's Law Dictionary

definition of 'income' quoted by the supreme court in Rogers

II, cited earlier in our opinion, specifically includes

gifts as income but does not mention loans. [Citation.]

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More significantly, loans typically should not be counted as

income because they usually do not directly increase an

individual's wealth." (Emphasis in original.) Tegeler,

365 Ill. 3d at 458.

Although the father received as much as $600,000 in annual

loans for the running of his farm, neither the loans nor the

repayment were considered in his income calculations. The court

agreed, explaining as follows:

"A contrary interpretation that includes loans as

income would often created unjust or absurd results. ***

Should a parent who takes out tens of thousands of dollars

in student loans for graduate school be credited with an

equal amount of 'income' for those years? Should a parent

who borrows hundreds of thousands of dollars for a mortgage

to buy a house be considered to have that much additional

'income' that year? In the mortgage example, even the

comparatively small monthly mortgage payments could not be

deducted from the inflated income, for a home mortgage is

not an expense that produces income [citation] nor does it

fall within any other enumerated deduction." Tegeler, 365

Ill. App, 3d at 458.

See 750 ILCS 5/505(a)(3)(h) (West 2004). While recognizing that

there may be a situation in which it would be appropriate to

consider loans as income under section 505(a)(3), the court

concluded that the trial court did not err in not including the

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father's loans in its income calculation. Tegeler, 365 Ill. App.

3d at 459; but see Cox v. Cox, 580 N.E.2d 344 (Ind. App. 1991)

(father's $300,000 line of credit which he used for personal

expenses as well as his farming operation afforded him great

economic flexibility and was properly considered in determining

his financial condition).

In the absence of case law involving mortgage loans, the

parties rely on the analysis in student loan cases. In

Gilbertson v. Graff, 477 N.W.2d 771 (Minn. App. 1991), the

reviewing court found that the excess proceeds from a student

loan, used for living expenses, were properly included in the

father's income for child support purposes. The court relied on

the state statute defining income as any form of periodic payment

to an individual. Gilbertson, 477 N.W.2d at 774; Minn. Stat.

Ann. §518.54 subd. 6 (West 2006); see In re Marriage of Syverson,

281 Mont. 1, 12, 931 P.2d 691, 698 (1997) (that portion of a Pell

Grant, which did not require repayment, for personal use

constituted income). Still another court has held that the

grants and tuition reimbursements from employers, not to exceed

the amount of the tuition, were not income for child support

purposes because they did not reduce a parent's living expenses.

In re Marriage of Mellott, 32 Kan. App. 2d 1031, 1033-34, 93 P.3d

1219, 1221-22 (2004).

Craig relies on In re Marriage of Thibadeau, 150 Wis. 2d

109, 441 N.W.2d 281 (Wis. App. 1989). In that case, the

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reviewing court held that the trial court's inclusion of the

mother's Pell Grant and loans in her income was error. The

Wisconsin statute defined "gross income" as any income from what

ever source, unless excluded by law, and the mother's educational

grants were excluded by federal law. The court also determined

that the loans were not "gross income" because under the Internal

Revenue Code, money borrowed by a tax payer was not income in the

year received. Thibadeau, 150 Wis. 2d at 120, 441 N.W.2d at

284; see also Milligan v. Addison, 582 So.2d 769 (Fla. App.

1991), overruled on other grounds, Overbey v. Overbey, 698 So. 2d

811, 815 (Fla. 1997) (educational loans are not income because

such monies represent debts which must be repaid); Schaerrer v.

Westman Commission Co., 769 P.2d 1058 (Colo. 1989) (student loans

not subject to garnishment for preexisting debts because state

garnishment laws were inconsistent with the Federal Guaranteed

Student Loan Program).

The problem with the above cases is that they rely on

statutory definitions peculiar to that state and/or federal tax

law. As previously stated, the Act does not define income, and

as this court held in Rogers I, section 505, not the tax code,

defines income for determination of child support. Rogers I, 345

Ill. App. 3d at 80. Nonetheless, the analysis in In re Marriage

of Rocha, 68 Cal. App. 4th 514, 80 Cal. Rptr. 2d 376 (1998), is

somewhat helpful.

In Rocha, for purposes of determining child support, the

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statute defined "annual gross income" as "income from whatever

source derived," except child support payments actually received,

and public aid, and included but was not limited to the

following:

"(1) Income such as commissions, salaries, royalties, wages,

bonuses, rents, dividends, pensions, interest, trust income,

annuities, workers' compensation benefits, unemployment

insurance benefits, disability insurance benefits, social

security benefits, and spousal support actually received

from a person not a party to the proceeding to establish

child support order under this article. (2) Income from the

proprietorship of a business, such as gross receipts from

the business reduced by expenditures required for the

operation of the business. (3) In the discretion of the

court, employee benefits or self-employment benefits, taking

into consideration the benefit to the employee, any

corresponding reduction in living expenses, and other

relevant facts." Rocha, 68 Cal. App. 4th at 516, 80 Cal.

Rptr. 2d at 377.

The trial court concluded that the failure of the above list to

mention loans as a source of income did not exclude them. The

reviewing court disagreed.

The court observed that sources of income listed in the

statute and its prior case law all represented a source of income

where there was no expectation of repayment or reimbursement.

22
No. 1-06-2866

After discussing the decisions in several of the cases set forth

above, the court determined that the better approach "is to

simply recognize that a student loan is not income. It does not

expressly qualify under the guidelines set forth in [the

California statute], nor do such loans share similar features

with those specifically enumerated items designated to qualify as

income. We therefore conclude that the trial court erred in

considering the difference in student loan funds used for living

expenses as income." Rocha, 68 Cal. App. 4th at 517-18, 80 Cal.

Rptr. 2d at 378.

Unlike the statute in Rocha, the Act does not set forth what

is considered income; rather, it sets forth only those items that

can be deducted from it. Therefore, there is no list from which

this court may compare loans to see whether they share similar

features with those considered to be income. Nonetheless, a

determining factor in many of the above cases is whether

repayment of the money received was required. Where repayment

was required, the loan was not considered income. While in

Rogers II the supreme court upheld the appellate court's

determination that the "loans" in that case were income, it did

so on the basis that loans were "loans in name only." Rogers II,

213 Ill. 2d at 140. In other words, no repayment was required or

even intended when those loans were made.

We do not hold that loan proceeds may never constitute

income. However, a residential mortgage loan, made by a bona

23
No. 1-06-2866

fide lender, does not constitute income. Such loans do not meet

the definition of "income" as set forth in Rogers II as they do

not share similar features with the examples set forth in the

definition cited therein.

2. Sale Proceeds

In the circuit court, Susan argued that a question of fact

existed as to whether Craig utilized the proceeds from the sale

of his California residence in the purchase of his new residence

in Illinois. The circuit court determined that no issue of fact

existed. On appeal, Susan has abandoned her argument that a

question of fact exists barring summary judgment. Instead, she

contends that, regardless of how he actually used the proceeds,

the proceeds from the sale of Craig's residence should be

considered income for the purpose of determining net income for

child support.

Susan's argument on appeal suggests a broader question than

is actually before us. The circuit court's grant of summary

judgment was based on Craig's affidavit in which he averred that

the proceeds from the sale of his California residence were used

to purchase his new residence in Illinois.4 Our review is

limited to determining whether proceeds from the sale of

residential property that are used to purchase a new residence

4
Craig's affidavit also stated that the proceeds were

initially placed in a trust for his daughter.

24
No. 1-06-2866

are income for child support purposes.

"For the purposes of determining statutory child support

obligations, the General Assembly has adopted an expansive

definition of what constitutes 'net income.' 'Net income' is

defined broadly to encompass 'the total of all income from all

sources'" minus the deductions set forth in section 505(a)(3).

Rogers II, 213 Ill. 2d at 136, quoting 750 ILCS 5/505(a)(3) (West

2002). Susan points out that section 505(a)(3) does not exclude

residential real estate sale proceeds in determining net income.

The parties cite no Illinois cases deciding this precise

issue. However, Susan maintains that in In re Marriage of

Garelick, 168 Ill. App. 3d 321, 522 N.E.2d 738 (1988), the court

determined that a capital gain realized from the husband's

business with his new wife was subject to his maintenance

obligation to his former wife. Garelick does not so hold. In

that case, the court rejected the husband's argument that there

was no evidence that he would have future income from the

business in light of the capital gain he realized and which he

used as a down payment on his current residence. Garelick, 168

Ill. App. 3d at 327.

Craig's reliance on In re Marriage of Steinberg, 302 Ill.

App. 3d 845, 853, 706 N.E.2d 895 (1998), is equally misplaced.

In that case, the father argued that the proceeds from the sale

of the marital residence should not have been included in

calculating his income. The reviewing court noted that the trial

25
No. 1-06-2866

court had agreed with the father on that point. As whether the

sales proceeds were income for child support was not an issue in

that case, Steinberg is of no assistance in this case.

As noted in our discussion of loan proceeds as income, the

Act does not define "income." We therefore turn again to the

definition set forth by the supreme court in Rogers II. Under

that definition, income is viewed as a gain or recurrent benefit,

measured in money and as money from employment, business,

investments, royalties, gifts and the like. See Rogers II, 213

Ill. 2d at 136. Courts have included as income under the Act a

lump-sum worker's compensation award, a military allowance, an

employee's deferred compensation and the proceeds from a

firefighter's pension. See In re Marriage of Lindman, 356 Ill.

App. 3d 462, 466, 824 N.E.2d 1219 (2005) (collected cases). In

Lindman, the appellate court held that the father's individual

retirement account disbursements were income for the purpose of

calculating net income under section 505 of the Act (750 ILCS

5/505 (West 2002)).

In Department of Public Aid ex rel. Jennings v. White, 286

Ill. App. 3d 213, 675 N.E.2d 985 (1997), the appellate court held

that a father's Federal Employers' Liability Act settlement was

income for child support purposes.5 In reaching its decision,

5
Because the father in Jennings failed to provide

information regarding the breakdown of the award, the appellate

26
No. 1-06-2866

the court noted that the legislature's inclusive language "'all

income from all sources,'" was to be broadly applied, and thus

"income" had been construed to included various items such as: a

tax refund attributable to maintenance payments made to a former

spouse; income from investments and bonuses from a closely held

corporation; and nonrecurring income. See Jennings, 286 Ill.

App. 3d at 217-18 (collected cases).

While maintaining that this court need not look past the

unambiguous language of section 505(a)(3), Susan notes that other

jurisdictions include capital gains in their statutory

definitions of income for child support purposes. See Moore v.

Moore, No. E2005-02369-SC-R11-CV, ___ S.W.3d ___ (Tenn. 2007)

(even a one-time capital gain was income under the child support

guidelines which specifically included capital gains in the

definition of gross income); see also Sharpe v. Perkins, 284 Ga.

App. 376, 644 S.E.2d 178 (2007) (rejecting father's claim that

nonrecurring capital gains from the sale of property should not

be included in his income, relying on the statute which excluded

only public assistance from income determination and on the

internal revenue code's definition of gross income).

In Borowsky v. Borowsky, 273 Mich. App. 666, 733 N.W.2d 71

court upheld the trial court's determination that the entire

award, after deduction of expenses, was subject to his child

support obligation. Jennings, 286 Ill. App. 3d at 218-19.

27
No. 1-06-2866

(2007), the reviewing court noted that the Michigan Child Support

Formula (MCSF) did not directly address gains from the sale of

property. However, the MCSF did provide that "income" included

an amount of money that is due to an individual as a debt of

another individual or other entity. The court concluded that

because gains from the sale of property fall within the broad

definition of income as provided in the MCSF and were not

specifically excluded from treatment as income, unlike

inheritances and one-time gifts, gains from the sale of property

must be included as income for purposes of calculating child

support, regardless of how the funds were actually used.

Borowsky, 273 Mich. App. at 680, 733 N.W.2d at 78.

Relevant to the present case, in a footnote, the Borowsky

court acknowledged as follows:

"We are cognizant that one-time sales of real property

can create a distorted impression of a party's income for

purposes of calculating child support. However, we note

that, where such distortion renders application of the

formula unjust or inappropriate, it is within the trial

court's discretion to deviate from the formula and exclude

such amounts from treatment as income on that basis.

[Citation.]" Borowsky, 273 Mich. App. at 681 n.8, 733

N.W.2d at 80 n.8.

Borowsky involved the capital gain realized from rental

property. Our research reveals only one case specifically

28
No. 1-06-2866

addressing whether the proceeds from the sale of a residence are

income for purposes of child support. In Eldridge v. Eldridge,

137 S.W.3d 1 (Tenn. App. 2002), the wife argued that the capital

gains associated with the sale of the parties' residence should

be included when the court determined the husband's income for

child support purposes. The Tennessee court agreed. Initially,

the court noted that capital gains were included in the

definition of gross income under the Tennessee statute. The

court further noted a previous decision in which it held that a

one time capital gain should be included in the determination of

the obligor's income. See Smith v. Smith, No. 01A-01-9705-CH-

00216 (Tenn. App. October 29, 1997). The court distinguished

another decision in which it excluded a capital gain from gross

income on the basis that the capital gain was included in the

marital estate. See Hall v. Hall, 03A01-9701-GS-00030 (Tenn.

App. 1997 July 21, 1997).6 As there was no evidence that the

$340,000 capital gain was included in the marital estate, the

appellate court directed the trial court to consider the $340,000

capital gain when it determined the husband's income for child

support purposes. Eldridge, 137 S.W.3d at 22.

The above cases deal with the capital gains realized from

the sale of real estate. However, Susan is seeking to include

the entire proceeds from the sale of Craig's California residence

6
Hall was abrogated in Moore.

29
No. 1-06-2866

as income for child support purposes. Under section 505(a)(3)

and the definition of income cited in Rogers II, we are

constrained to agree with Susan that the proceeds from the sale

of property such as a residence would qualify as income.

Nonetheless, we do not agree that the circuit court erred in

refusing to include the proceeds in its determination of net

income. As a practical matter, it stands to reason that to a

certain extent the sale proceeds represent a return on payments

made by Craig out of income already accounted for in the

determination of his child support obligation. Moreover, we find

In re Marriage of Harmon, 210 Ill. App. 3d 92, 586 N.E.2d 948

(1991), overruled on other grounds, Rogers II, 213 Ill. 2d at 139

instructive.7

In Harmon, the court noted that passive income from bonds or

securities could be considered when determining net income.

Harmon, 210 Ill. App. 3d at 95. However, "when the unrefuted

testimony is that the party does not actually receive the income

from such passive sources, regardless of whether it is reported

for Federal income tax purposes, it is not error for the trial

court to refuse to consider the additional reported amounts when

calculating net income." Harmon, 210 Ill. App. 3d at 95-96.8 In

7
Rogers II overruled Harmon on the issue of whether gifts

could be considered income for purposes of child support.

8
We note that the courts in In re
30
No. 1-06-2866

Ivanyi v. Granoff, 171 Ill. App. 3d 411, 526 N.E.2d 189 (1988),

while the father was required to report interest, dividends and

capital gains on his federal income tax, the court held that they

Marriage of Colangelo, 355 Ill. App. 3d

383, 822 N.E.2d 571 (2005), and In re

Marriage of Klomps, 286 Ill. App. 3d

710, 676 N.E.2d 686 (1997), refused to

follow Harmon, finding that the fact

that the source of income was awarded

as a marital asset did not prevent its

inclusion as income for child support

purposes. See Colangelo, 355 Ill. App.

3d at 390-92 (stock distribution);

Klomps, 286 Ill. App. 3d at 715

(military pension). That is not an issue in this

case.

31
No. 1-06-2866

should not be considered in determining net income since he did

not receive this income, either actually or constructively.

Ivanyi, 171 Ill. App. 3d at 421.

A similar situation occurs where a parent sells his or her

residence and uses the proceeds to purchase a new residence. The

sale proceeds are not actually available to the parent to spend

as income. While it could be argued that they are

"constructively" available, such an interpretation would be

detrimental not only to the parent obligated for support but the

child or children for whom support is being paid. In the present

case, Craig sold his California residence when he lost his job

and had relocate to Illinois for employment. As the circuit

court observed, treating as income the sale proceeds from one

residence which are needed to finance the purchase of another

residence would serve to discourage the parent paying child

support from relocating in order to obtain employment necessary

to continue his or her child support obligation.

We cannot say that the proceeds from the sale of residential

property can never be considered income for child support

purposes. Here, however, the sale of Craig's California

residence was necessitated by his employment situation, and the

proceeds were utilized to purchase his residence in Illinois

where he had obtained employment. Under these circumstances, the

circuit court did not err in excluding the proceeds from the sale

of Craig's California from his income for child support purposes.

32
No. 1-06-2866

III. Deductibility of Nonreimbursed Business Expenses

Susan contends that the circuit court erred in determining

that Craig's nonreimbursed business expenses were deductible

pursuant to section 505(a)(3)(h) of the Act (750 ILCS

5/505(a)(3)(h) (West 2004). Craig maintains that Susan may not

raise this issue on appeal because she stipulated to his offer of

proof as to the amount of each business expense, the date and

purpose of each expense, the amount paid and how it was paid, and

the proof of the payments. However, the record is clear that the

stipulation was to the list of business expenses, and Susan

reserved the right to argue their propriety as deductions.

A. Standard of Review

This court applies de novo review to the construction of a

statute. R&B Kapital, 358 Ill. App. 3d at 916.

B. Discussion

Section 505(a)(3(h) provides as follows:

"Expenditures for repayment of debts that represent

reasonable and necessary expenses for the production of

income, medical expenditures necessary to preserve life or

health, reasonable expenditures for the benefit of the child

and the other parent, exclusive of gifts. The court shall

reduce net income in determining the minimum amount of

support to be ordered only for the period that such payments

are due and shall enter an order containing provisions for

its self-executing modification upon termination of such

33
No. 1-06-2866

payment period." 750 ILCS 5/505(a)(3)(h) (West 2004).

In Rimkus v. Rimkus, 199 Ill. App. 3d 903, 557 N.E.2d 638 (1990),

this court held that nonreimbursed business expenses were

expenditures for the repayment of debt and thus deductible under

section 505(a)(3)(h) as long as they were "'reasonable and

necessary'" for the production of income. Rimkus, 199 Ill. App.

3d at 910, quoting Ill. Rev. Stat. 1987, ch. 40, par.

505(a)(3)(h).

1. Reasonable and Necessary

Susan argues that Craig failed to prove that the expenses

were reasonable and necessary for the production of income

because his business consistently lost money. In Gay v. Dunlap,

279 Ill. App. 3d 140, 664 N.E.2d 88 (1996), the court determined

whether an expense was "reasonable" by looking at "the

relationship between the amount of the expense and the amount by

which income is in good faith expected to increase as a result."

Gay, 279 Ill. App. 3d at 149. Susan points out that the

nonreimbursed business expenses claimed by Craig exceeded his

income for the same time period and, therefore, they cannot be

said to be reasonable.

Susan cites no authority for the proposition that the fact a

business had more expenses than income is, in and of itself,

evidence that the expenses were not reasonable or necessary. As

the court in Gay noted, "[t]his definition [of 'reasonable']

implies the same expense could be reasonable in one context and

34
No. 1-06-2866

not in another." Gay, 279 Ill. App. 3d at 149. While it was

not unreasonable for the father to rent a car for his business

purposes, the court remanded the case for hearing on whether

leasing a Mercedes brand vehicle was a reasonable and necessary

expense. Gay, 279 Ill. App. 3d at 149.

In Tegeler, the mother argued that the father's testimony

that his expenses were reasonable and necessary was insufficient

in the absence of any receipts substantiating such expenses. The

court rejected the argument pointing out that the father's tax

returns showed itemized totals of expenses and his farm account

books showed very detailed lists of expenditures complete with

dates, check numbers, payees, descriptions of items and amounts.

The court concluded that such evidence constituted a prima facie

showing that such expenses were legitimate, which the mother

failed to rebut. Tegeler, 365 Ill. App. 3d at 456.

Likewise, in the present case, Craig's nonreimbursed

business expenses, as stipulated to by Susan, constituted a prima

facie showing that the expenses were legitimate. While Susan did

not stipulate to their reasonableness, her argument, based solely

on the lack of profit, does not rebut the reasonableness of the

expenses.

2. Repayment of Debt

Susan maintains that Craig's nonreimbursed business expenses

are not deductible under section 505(a)(3)(h) because they were

not for the repayment of debt and urges us to overrule Rimkus.

35
No. 1-06-2866

Susan argues that Rimkus ignored the language in section

505(a)(3)(h) that, to be deductible, the expenses must be for the

repayment of debt. She points out that in Gay, the Fourth

District Appellate Court disagreed with Rimkus and held that day-

to-day business expenses were not deductible for the purpose of

determining net income for child support.

In Gay, the court explained that, to adopt the Rimkus

reasoning, would require the court to ignore the language "for

repayment of debts." The court further noted that under the

Rimkus interpretation, the language requiring the court to order

the amount of support reduced only for the period wherein the

debt was being repaid would make no sense. Gay, 279 Ill. App. 3d

at 147; see Einstein v. Nijim, 358 Ill. App. 3d 263, 831 N.E.2d

50 (4th Dist. 2005) (agreeing with Gay that the repayment

language applies to all three types of deductions under section

505(a)(3)(h) and upholding denial of deductions for ongoing

medical expenses); see also In re Marriage of Ackerley, 333 Ill.

App. 3d 382, 775 N.E.2d 1045 (2d Dist. 2002) (mandatory loans

from father's bonuses did not represent repayment of debt as they

represented sums the father would receive at a later date).

We note that Rimkus relied on In re Marriage of Dwan, 108

Ill. App. 3d 808, 439 N.E.2d (1982), for its conclusion that

nonreimbursed business expenses were deductible to determine net

income. Rimkus, 199 Ill. App. 3d at 909. However, Dwan was

decided under the 1979 version of section 505, which did not

36
No. 1-06-2866

provide a definition of net income. Gay, 279 Ill. App. 3d at

146. Moreover in Dwan, the temporary court order defined net

income as income less taxes and business expenses. Rimkus, 199

Ill. App. 3d at 909. In the present case, the agreed order

provides that the statutory definition of net income controls.

Nonetheless, we disagree with Susan and the court in Gay

that Rimkus was wrongly decided. Subsection (a)(3)(h) does not

limit "debt" to a one-time-only business expense. "Debt" is

defined as "[l]iability on a claim; a specific sum of money due

by agreement or otherwise." Black's Law Dictionary 410 (7th ed.

1999). Gay does not explain why repaying debts incurred for day-

to-day business expenses is any different from paying a one-time

business expense, except that such an interpretation conflicts

with the requirement of a repayment plan. Gay, 279 Ill. App. 3d

at 147.

Our courts have allowed business expenses to be deducted when

arriving at net income where the expenses were subject to a

strict repayment plan. In In re Marriage of Davis, 287 Ill. App.

3d 846, 679 N.E.2d 110 (5th Dist. 1997), the court determined

that the father's purchase of a dental practice and building

partnership interest was a reasonable and necessary expense for

the production of income. The court further held that the father

was entitled to deduct whatever the straight-line appreciation

expense would have been since his payments were subject to a

specific repayment schedule. Davis, 287 Ill. App. 3d 846; see

37
No. 1-06-2866

Posey v. Tate, 275 Ill. App. 3d 822, 827, 656 N.E.2d 222 (1st

Dist. 1995) (straight-line depreciation expense deduction proper

where it was for a reasonable and necessary business expense and

it was subject to a specified repayment schedule as contemplated

by section 505(a)(3)(h).

On the other hand, in the absence of a repayment schedule,

courts have disallowed the deduction for expenses. In In re

Marriage of Partney, 212 Ill. App. 3d 586, 571 N.E.2d 266 (5th

Dist. 1991), the reviewing court disallowed deductions under

section 505(a)(3)(h) for real estate investment losses because

they were not shown to be reasonable or necessary for the

production of income and because, as such, the losses could not

be presented in a specified repayment schedule. Partney, 212

Ill. App. 3d at 593. In In re Marriage of Lefler, 185 Ill. App.

3d 677, 542 N.E.2d 1 (1st Dist. 1988), the reviewing court

refused to allow the father a deduction for his business

indebtedness arising out of an Internal Revenue Service lien in

the absence of evidence as to the amount and a specific repayment

schedule. Lefler, 185 Ill. App. 3d at 684-85.

Under subsection (a)(3)(h), the debt repayment may reduce

net income only for the period the payments are due, and the

modification must be self-executing. The agreed order in this

case provides that each year Craig's income will be reviewed to

determine whether his support obligation should increase or

decrease. This determination will be made on the basis of his

38
No. 1-06-2866

income tax returns, which will reflect his nonreimbursed business

expenses. Thus, each year Craig's income will be reduced only by

those nonreimbursed business expenses incurred for that year.

Thus, the agreed order complies with subsection (a)(3)(h) in that

Craig's nonreimbursed business expenses will be deductible only

in the year he repays them and is self-executing. But see

Partney, 212 Ill. App. 3d at 592-93 (amount of net loss on

investment properties was an end-of-the-year accounting which

corresponded only to that particular year and did not evidence a

repayment plan).

We conclude that Craig's nonreimbursed business expenses are

deductible under section 505(a)(3)(h) of the Act.

IV. Unexplained Bank Deposits

A. Standard of Review

This court reviews a trial court's evidentiary rulings under

an abuse of discretion standard. Chapman v. Hubbard Woods

Motors, Inc., 351 Ill. App. 3d 99, 105, 812 N.E.2d 389 (2004). A

trial court will be said to have abused its discretion only if it

acts arbitrarily without the employment of conscientious

judgment, exceeds the bounds of reason and ignores recognized

principles of law or if no reasonable person would take the

position adopted by the court. Schmitz v. Binette, 368 Ill. App.

3d 447, 452, 857 N.E.2d 846 (2006).

. B. Discussion

Susan contends that the circuit court erred when it

39
No. 1-06-2866

sustained Craig's objection to her questions regarding deposits

to his bank accounts. She maintains that the court erroneously

placed on her the burden of proving that Craig's unexplained

deposits into his bank accounts were income for child support.

Susan argues that as all income is presumptively income for child

support purposes, it was Craig's burden to prove that the

deposits were not income for child support purposes. Susan

relies on Rogers I wherein the court required the father to prove

that the gifts and loans were not income. Rogers I, 345 Ill.

App. 3d at 79-81. She also relies on In re Marriage of Jorczak,

315 Ill. App. 3d 954, 957, 735 N.E.2d 182 (2000) (payment is an

affirmative defense to a child support arrearage claim; therefore

the burden of proof is on the one claiming the defense of

payment).

More on point is Tegeler. There the mother claimed that the

father's personal checking account was another source for

computing child support. The father testified that he never

wrote checks from his farm accounts to his personal account.

While he did deposit money from the sale of grain and cattle into

his personal account, he recorded the sales' proceeds in his farm

account books. The court found that the father "partially

explained the source of funding for his checking account.

However, to the extent that [the father's] personal spending

exceeded his 'net income' *** we agree that the source of such

money is unexplained and should be considered [extra income.]"

40
No. 1-06-2866

(Emphasis in original.) Tegeler, 365 Ill. App. 3d at 461.

In the present case, the trial court sustained the relevancy

objection on the grounds that there was no proof that the

deposits were Craig's or that the deposits were from income over

and above what he had already disclosed as income. Under

questioning by his own attorney, Craig explained that in 2002,

some of the deposits could have come from his NeoPharm paychecks.

He further explained that the deposits could have been made by

his present wife, Jeanine, from her income or accounts.

As was the case in Tegeler, Craig provided an explanation of

where the deposits he could not specifically recall may have

come. Moreover, unlike the father in Tegeler, there was no

evidence that Craig's personal spending exceeded his net income.

Compare Tegeler, 365 Ill. App. 3d at 460 (the father spent an

average of $72,000 when his net income was between $50,000 and

$70,000).

We conclude that the circuit court's sustaining of the

relevancy objection was not error.

V. Contempt

A. Standard of Review

A trial court's contempt finding is reviewed under the abuse

of discretion standard. Steinberg, 302 Ill. App. 3d at 853.

B. Discussion

Susan contends that the circuit court abused its discretion

41
No. 1-06-2866

when it failed to hold Craig in contempt for failure to pay child

support. She points to Craig's admission that he owed additional

child support for the years 2003 and 2004.9

"'The power to enforce an order to pay money through

contempt is limited to cases of willful [and contumacious]

refusal to obey the court's order.'" Steinberg, 302 Ill. App. 3d

at 853, quoting In re Marriage of Logston, 103 Ill. 2d 266, 285,

469 N.E.2d 167 (1984). "The failure to pay child support under a

court order or judgment is prima facie evidence of indirect,

civil contempt." Steinberg, 302 Ill. App. 3d at 853. Where the

evidence establishes that the payor-parent has failed to make

support payments, the burden is on the payor-parent to show that

the noncompliance was not willful. Steinberg, 302 Ill. App. 3d

at 853. Whether the excuse given for noncompliance is valid is a

question of fact for the court. Steinberg, 302 Ill. App. 3d at

853.

Craig responds that he was in compliance with the monthly

court-ordered support amount of $762. He further responds that

the parties' dispute as to the additional support due for each

year resulted from the vagueness of the circuit court's order

9
Craig testified that he overpaid $1,679.72 child support

for 2002; for 2003, he paid $9,144 and owed an additional

3,392.60; and for 2004, he paid $9,144 and owed an additional

$1,896.23.

42
No. 1-06-2866

regarding the calculation of the additional amount.

"'To support a finding of contempt, the order must be 'so

specific and clear as to be susceptible of only one

interpretation.'" Steinberg, 302 Ill. App. 3d at 853, quoting

O'Leary v. Allphin, 64 Ill. 2d 500, 514, 356 N.E.2d 551 (1976).

"'It must not only be capable of reasonable interpretation, but

that interpretation must be to the exclusion of other reasonable

interpretations; it must be unambiguous.'" Steinberg, 302 Ill.

App. 3d at 853, quoting O'Grady v. Cook County Sheriff's Merit

Board, 204 Ill. App. 3d 258, 262, 561 N.E.2d 1226 (1990).

In Steinberg, the father appealed contempt findings based on

his failure to pay child support and the failure to disclose his

tax returns. The order for child support included a provision

whereby, in the event the father's income increased or decreased,

he agreed to modify his payments to insure that they were never

less (or more) than 20% of his net annual income. In order to

determine if a modification was required, the parties were to

exchange federal income tax forms, W-2s and 1099s. The father

argued that the modification terms of the order were too vague to

put him on notice that his actions could constitute contempt of

court. He further argued that he believed the agreement was

unenforceable because the support level was not stated in a

dollar amount, as required by the version of the Act applicable

in the case.

The reviewing court rejected the vagueness argument, finding

43
No. 1-06-2866

that "though calculating child support under the agreement

requires some effort each year, the terms of the agreement set

out a clear formula" and therefore were sufficient to put the

father on notice about the conduct that would violate the order.

Steinberg, 302 Ill. App. 3d at 853. As to the father's argument

that he had not acted willfully or in bad faith, the court stated

as follows:

"[The father] notes that he regularly paid child

support and twice raised the amount. He stresses that he

believed the agreement was unenforceable. But the issue

here is not whether the respondent acted with good

intentions in paying what he thought was appropriate

support. The issue is whether he made a good-faith effort

to comply with the formula set out in the dissolution

agreement. [The father] believes he was justified in

ignoring the order because he thought the child support

provisions were void. As the trial court noted, [the

father] offered no evidence to show that he tried to comply

with the order. Though [the father] argues that the child

support directions were too confusing to understand, his

testimony reveals the opposite. If he concluded that the

order was contrary to appellate opinions, he must have had a

clear notion of what the order meant. The trial court did

not err in finding that [the father's] failure to comply was

willful." Steinberg, 302 Ill. App. 3d at 853-54.

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In this case, there was some dispute of what constituted

income and what were allowable deductions. Prior to the filing

of the contempt petition, Craig maintained in letters to Susan

that he had either overpaid his support obligation or fulfilled

his obligation for the additional support. Craig even hired an

attorney to assist him in the calculations for 2002 and 2003.

Nonetheless, at trial, Craig acknowledged and the circuit court

found that he owed the additional support.

A trial court will be said to have abused its discretion

only if it acts arbitrarily without the employment of

conscientious judgment, exceeds the bounds of reason and ignores

recognized principles of law, or if no reasonable person would

take the position adopted by the court. Schmitz, 368 Ill. App.

3d at 452. Even though Craig ultimately conceded that he owed

additional support, his conduct prior to the filing of the

petition did not indicate that he willfully disregarded the

requirements of the support order.

We conclude that the circuit court's refusal to find Craig

in indirect civil contempt was not an abuse of discretion.

VI. Discovery Sanction

A. Standard of Review

This court reviews a decision to impose or not impose

sanctions under the abuse of discretion standard. Chabowski v.

Vacation Village Ass'n, 291 Ill. App. 3d 525, 528, 690 N.E.2d 115

(1997). The circuit court is in the best position to determine

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how court rules and rules of procedure should be applied in the

cases before it, and thus, its decisions are entitled to

considerable deference upon review. In re Estate of Smith, 201

Ill. App. 3d 1005, 1009, 559 N.E.2d 571 (1990). The predicate to

such deference is that the court make an informed and reasoned

decision. Smith, 201 Ill. App. 3d at 1009.

B. Discussion

Susan contends that the circuit court abused its discretion

when it sanctioned her for subpoenaing Craig's attorneys. She

maintains that she was entitled to depose Mr. Ramirez because

Craig raised the issue of Mr. Ramirez's advice in his affirmative

defense, and thus waived any attorney-client privilege. As to

Ms. Campbell, Susan asserts she sought Ms. Campbell's deposition

because her name appeared on the letterhead of Craig's company.

In response, Craig maintains that Susan was required to seek the

least intrusive discovery means to obtain the information she

sought.10

Supreme Court Rule 219 (d) provides that "[i]f a party

wilfully obtains or attempts to obtain information by an improper

discovery method, wilfully obtains or attempts to obtain

10
Although the circuit court orally denied Rule 219(d)

sanctions, both parties are proceeding on the theory that the

sanctions for subpoenaing the attorneys were imposed under Rule

219(d).

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information to which that party is not entitled, or otherwise

abuses these discovery rules, the court may enter any order

provided for in paragraph (c) of this rule." 210 Ill. 2d R.

219(d). Under paragraph (c), the court may order the offending

party to pay the other party's expenses incurred as a result of

the misconduct, including a reasonable attorney fee and a

monetary penalty. 210 Ill. 2d R. 219(c).

In Kilpatrick v. First Church of the Nazarene, 182 Ill. App.

3d 461, 538 N.E.2d 136 (1989), the plaintiff required one of the

defendant's attorneys to testify as part of an offer of proof.

After determining that the questioning did not and was not likely

to elicit new and relevant facts, the trial court concluded that

requiring the defendant's attorney to testify was a tactic to

exert pressure on opposing counsel during trial and constituted

unjustified harassment and awarded sanctions.

In upholding the award of sanctions, the reviewing court

acknowledged the difficulties of having counsel testify. The

court quoted from the case of Shelton v. American Motors Corp.,

805 F.2d 1323 (8th Cir. 1986), as follows:

"'Taking the deposition of opposing counsel not only

disrupts the adversarial system and lowers the standards of

the profession, but it also adds to the already burdensome

time and costs of litigation. *** Finally, the practice of

deposing opposing counsel detracts from the quality of

client representation. Counsel should be free to devote his

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or her time and efforts to preparing the client's case

without fear of being interrogated by his or her opponent.

Moreover, the "chilling effect" that such practice will have

on the truthful communications from the client to the

attorney is obvious.

* * *

*** The harassing practice of deposing opposing

counsel (unless that counsel's testimony is crucial and

unique) appears to be an adversary trial tactic that does

nothing for the administration of justice but rather

prolongs and increases the cost of litigation, demeans the

profession, and constitutes an abuse of the discovery

process." Kilpatrick, 182 Ill. App. 3d at 470, quoting

Shelton, 805 F.2d at 1327-30.

Like the present case, Shelton concerned the taking of the

opposing counsel's deposition. Refusing to hold that opposing

counsel was absolutely immune from being deposed and recognizing

that circumstances may arise in which the court should order the

taking of opposing counsel's deposition, the Shelton court limited

those circumstances to "where the party seeking to take the

deposition has shown that (1) no other means exist to obtain the

information than to depose opposing counsel [citation]; (2) the

information sought is relevant and nonprivileged; and (3) the

information is crucial to the preparation of the case." Shelton,

805 F.2d at 1327; see also J. Kinsler, J. Grenig & L. Nale, 10 Ill.

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Practice, Civil Discovery §1.38 (2000), citing Jones v. Board of

Police Commissioners of Kansas City, 176 F.R.D. 625 (W.D. Mo. 1997)

(applying the Shelton factors to deny a motion to compel opposing

counsel's deposition).11

In this case, Mr. Ramirez was to be deposed and was ordered

to produce the following: "all documents or tangible things

evidencing the advice sought and disclosures made to you by

Respondent, CRAIG BAUMGARTNER, concerning his child support

obligation during the years 2002, 2003, and 2004; including but not

limited to, your appointment calendars, log books, evidence of

research you conducted, or any records, reports, or forms he

provided you in your possession and control."

To begin with, the subpoena to Mr. Ramirez was overbroad in

its scope. Susan sought to disprove Craig's affirmative defense

11
We note that the Seventh Circuit has not considered

whether to adopt the rule set forth in Shelton. Taylor Machine

Works, Inc. v. Pioneer Distribution, Inc., No. 06-1126, slip

order at ___ (C.D. Ill. June 19, 2006). However, the Shelton

rule has been addressed in a number of District Courts within the

Seventh Circuit, with mixed results. See Taylor, slip order at

___. Nonetheless, this court is not bound to follow decisions by

federal courts other than the United States Supreme Court.

Behrens v. Harrah's Illinois Corp., 366 Ill. App. 3d 1154, 852

N.E.2d 553 (2006).

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that he relied on Mr. Ramirez's calculations for 2002 and 2003.

However, in his affirmative defense, Craig asserted that he did not

hire an attorney to assist him with the 2004 calculations. In

addition, the letters from Mr. Ramirez to Susan regarding the 2002

and 2003 child support figures contained the information he

utilized in arriving at those figures.

Susan requested Ms. Campbell's deposition and document

production based on the fact that Ms. Campbell's name appeared on

the facsimile cover sheet from Craig's sole proprietorship. Ms.

Campbell was required to produce the following: "all documents or

tangible things evidencing your employment or association with

Craig Baumgartner, d/b/a Baumgartner Consulting, during the years

2002, 2003, and 2004; including, but not limited to, federal tax

forms 1040, W-2, and 1099, paycheck stubs, reimbursement check

stubs, employment contracts, expense reports, appointment

calendars, client lists, or literature in your possession or

control."

If all Susan was seeking was to establish the role Ms.

Campbell had in Craig's business, the subpoena and document request

were similarly overbroad in their scope. Rather than depose Ms.

Campbell, Susan could have taken Craig's deposition or submitted

written interrogatories to Craig or Ms. Campbell to determine the

extent of Ms. Campbell's involvement in his company. Moreover,

there was no indication that Ms. Campbell's involvement in Craig's

company had any bearing on the issue of child support in this case.

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Applying the "Shelton Rule" to the facts in this case, Susan

failed to prove that information she sought via the depositions of

opposing counsel could not be obtained from other sources or was

crucial to the case. Nonetheless, Susan maintains that sanctioning

her was inappropriate because it punished her rather than

accomplishing discovery, relying on Wegman v. Pratt, 219 Ill. App.

3d 883, 891-92, 579 N.E.2d 1035 (1991) ("An order of sanctions that

is just within the meaning of Rule 219 is one that provides both

for discovery and for trial on the merits").

In Wegman, the trial judge sanctioned the plaintiff for

subpoenaing him (the trial judge) to testify by dismissing count I

of the complaint. On review, the court discussed the type of

sanctions that a court could impose under Rule 219(c) and noted

that "[i]n determining which sanction to impose, the trial court

must seek to accomplish discovery rather than to inflict

punishment; because dismissal is a severe sanction, it should be

invoked only in those cases where the actions of the party show a

deliberate, contumacious, or unwarranted disregard of the court's

authority. [Citation.] The entry of a dismissal under Rule 219(c)

should be employed as a last resort in order to enforce the rules

of discovery and should be set aside when a trial on the merits may

be had without hardship or prejudice." Wegman, 219 Ill. App. 3d at

891.

Applying the above analysis to the case before it, the

reviewing court recognized that using the legal process to

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accomplish some improper ulterior purpose was "an abuse of process

of the court" and that the discovery rules permitted sanctions to

be imposed on parties who abused or disregarded discovery rules.

The court concluded, however, that the subpoenaing of the trial

judge was not intended to accomplish an improper ulterior motive,

and therefore, dismissal of count I of the complaint was an

inappropriate sanction. Nonetheless, the court recognized that the

trial court had the authority in the appropriate case to dismiss an

action as a sanction. Wegman, 219 Ill. App. 3d at 891.

Unlike the plaintiff in Wegman, Susan's conduct in subpoenaing

Craig's attorneys was sanctionable. The subpoenas and document

production requests were over broad in light of the reasons Susan

posited for their issuance. Susan persisted in demanding the

depositions even after her attorney was advised by opposing counsel

that the depositions were an improper discovery tactic and warned

that sanctions would be sought if he failed to rescind the

subpoenas. Susan could have sought a ruling by the circuit court

as to the propriety of issuing subpoenas to opposing counsel in

this case but failed to do so. The court specifically found that

subpoenaing Craig's attorneys was done with the purpose of seeking

their disqualification or harassment. The court did not dismiss

Susan's petition but imposed a lesser sanction of paying the

attorney fees incurred for challenging the subpoenas. Such a

sanction did not deprive Susan of a trial on the merits or of

properly obtainable discovery and is specifically provided for in

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Rule 219(c) when instances of misconduct have occurred.

Finally, Susan argues that the circuit court failed to comply

with Rule 219(c) in that it did not specify its reasons and the

basis of any sanction imposed in the judgment order or in a

separate written order. As Craig notes, the court's written

judgment order referenced the court's oral findings. Moreover, the

basis for the imposition of the sanction was clear from the record.

We find no basis to reverse on that ground. See Chabowski, 291

Ill. App. 3d at 528, (court's failure to set forth grounds for Rule

219(c) sanctions not per se reversible error).

We conclude that the circuit court did not abuse its

discretion in imposing sanctions for Susan's conduct in

subpoenaing Craig's attorneys.

For all of the foregoing reasons, the judgment of the circuit

court is affirmed.

Affirmed.

SOUTH and KARNEZIS, JJ., concur.

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