dissenting:
I respectfully dissent. The trial court abused its discretion and its decision is contrary to the manifest weight of the evidence. I would reverse and remand with directions that the trial court reduce Robert’s obligation to pay college expenses, eliminate Robert’s obligation to pay child support, and vacate its finding of contempt.
The dissolution judgment in this case was entered in 1994, incorporating a marital settlement agreement that required each party to pay 50% of the children’s college expenses and for Robert to pay $312.50 in child support every two weeks until the youngest child reached 18 (August 2005).
In 1994, Marshella was earning approximately $30,000 at her job at State Farm and Robert was apparently earning approximately $47,000 at Mitsubishi. At the time of the hearing, in January 2007, Marshella was earning approximately $57,000 per year at State Farm. However, Robert’s position as a staff engineer at Mitsubishi was eliminated in February 2004 when the company downsized. After the layoff, Robert applied to 25 to 30 engineering firms, without success. Robert and his current wife then bought a bar and grill in Minnesota. The bar and grill lost $28,000 in 2005. It did better but still lost money in 2006. In the spring of 2005, Robert began working at Fargo Paint and Glass, where he earns approximately $27,000 per year, while still working 30 to 40 hours per week at the bar and grill.
Brennon began college in 2003. Ashley and Paige began in 2006. Paige became 18 in August 2005, at which time child support was to end, according to the marital settlement agreement. Robert stayed current until June 2004 by putting his payments on credit cards.
The trial court refused to relieve Robert of any of his obligation to pay 50% of college expenses, employing a broad definition of “college expenses,” including living expenses during the summer recess (but denying Marshella’s request that she be reimbursed for her mortgage, property taxes, and insurance). The court found that Robert owed $26,236.78 in past college expenses, and $2,187.50 in child support, with a credit of $4,375 for amounts paid after June 1, 2006. The court found Robert in indirect civil contempt for failure to pay one-half of the children’s college expenses in a timely manner and failing to remain current with child support. As a sanction, Robert was ordered to pay $2,382.67 as partial reimbursement for Marshella’s attorney fees. Robert could purge himself of contempt by paying $24,049.78 before April 15, 2007.
The trial court complained that Marshella had saved money for the children’s college education while Robert did not. The trial court reasoned that although Robert no longer earns his Mitsubishi salary, he can borrow money to pay the college expenses. While Robert lost his job at Mitsubishi through no fault of his own, he chose to purchase the bar and grill, which has operated at a loss.
The majority affirms the trial court’s order as to college expenses even though it agrees that Marshella should not have received credit for her reimbursement of the children for the college expenses they were able to pay themselves. Unfortunately for Robert, Marshella’s exhibits did not break down how much money was involved in those reimbursements. 381 Ill. App. 3d at 629.
The majority concedes that Robert lost his job at Mitsubishi through no fault of his own but argues that when his severance benefits ran out “he chose to invest in the bar and grill, thereby depleting any reserve he had and incurring more debt when he had college-expense obligations” and knew he would have more in the future. 381 Ill. App. 3d at 629. The question, however, is not whether the choice worked out successfully. “[Ejconomic reversals as a result of changes in employment or bad investments, if made in good faith, may constitute a material change in circumstances sufficient to warrant a modification of a child[-]support order.” Hardy, 191 Ill. App. 3d at 690, 548 N.E.2d at 142. The question is whether the choice was made in good faith. Employment changes that are voluntary must be made in good faith and not prompted by a desire to avoid obligations. In re Marriage of Waldschmidt, 241 Ill. App. 3d 7, 13, 608 N.E.2d 1299, 1303 (1993) (retirement was in good faith, not to avoid maintenance obligation). The record affords no evidence that the choice to become self-employed was in bad faith. In fact, it is a mischaracterization to describe this choice as “voluntary.” Robert did not quit his job at Mitsubishi. His job was eliminated and he was forced to seek new employment. He was forced to make a choice.
It is incorrect to say that Robert “is capable of earning in excess of $47,000 per year as shown by his net income in 2004,” the year he lost his job and received severance benefits. 381 Ill. App. 3d at 629. We should not assume that a person who earns $47,000 in one year will be able to earn that amount in future years. The loss of long-term employment is often a devastating blow from which a worker never recovers. “Certainly this court cannot find that an employment layoff and an attempt to become self-employed are attempts to evade financial responsibility.” Hardy, 191 Ill. App. 3d at 690, 548 N.E.2d at 142. It appears that the bar and grill was the best employment Robert could find. After losing his job at Mitsubishi, Robert unsuccessfully applied to 25 to 30 other firms. Robert and his wife had experience in the bar and restaurant business and were familiar with the Minnesota area. Robert and his wife are working hard at the bar and grill, Robert spending 30 to 40 hours there a week in addition to a second job at Fargo Paint and Glass.
Was it a mistake for Robert to “invest in the bar and grill, thereby depleting any reserve he had and incurring more debt when he had college-expense obligations”? 381 Ill. App. 3d at 629. Robert was entitled to give some thought to long-term considerations. If he believed the bar and grill was likely to produce the most income over the years, Robert was entitled to take that into account. Robert was not required to insure above all else that college expenses were paid. A worker who “chooses” to go on strike may have his child-support payments reduced. In re Marriage of Horn, 272 Ill. App. 3d 472, 477, 650 N.E.2d 1103, 1107 (1995). In In re Marriage of Webber, 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751 (1989), petitioner argued that respondent “was aware of his support obligation and the increasing needs of their children but still chose” to enroll full time in college and reduce his hours of employment to 14 hours per week. The court nevertheless reduced respondent’s child-support obligation. “A good-faith, voluntary change in employment which results in reduced financial ability can constitute a substantial change in circumstances.” Webber, 191 Ill. App. 3d at 330, 547 N.E.2d at 751. The question is whether Robert acted in good faith. No evidence indicates that he did not. He faithfully paid child support for many years. He even paid child support and college expenses when he did not have sufficient income, by borrowing on his credit cards. Why would Robert intentionally reduce his income, harming himself as well as his children?
According to the majority, “Robert had sufficient collateral to obtain another loan or he could sell some of his property.” 381 Ill. App. 3d at 629. The majority says that the testimony that his cabin was already collateral for an $80,000 debt “need not have been believed by the trial court.” 381 Ill. App. 3d at 628-29. Wfhat other evidence was there? A trial court’s decision should have some support in the evidence. The majority says the bar and grill had $17,000 in equity. Robert should have sold or mortgaged the bar and grill? Giving up on the bar and grill does not sound like a solution to the parties’ financial problems; it sounds like bankruptcy. Even if we assume Robert had some borrowing ability left, was he required to sacrifice his earning power for the rest of his life to pay these college expenses? “A child does not have an absolute right to a college education.” In re Marriage of Spear, 244 Ill. App. 3d 626, 630, 613 N.E.2d 358, 360 (1993). Even if we were talking about food and shelter, a basic principle in setting support is that the amount of support should be based on current conditions. See In re Marriage of Carpel, 232 Ill. App. 3d 806, 819, 597 N.E.2d 847, 857 (1992). It may be appropriate to require Robert to cosign federally insured student loans for his children. It is not appropriate to saddle him for the rest of his life with debts he will never be able to repay.
Finally, I disagree that sanctions were properly imposed for contempt in this case. “[A] clear defense to contempt exists where the failure of a person to obey an order to pay is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act.” In re Marriage of Betts, 155 Ill. App. 3d 85, 100, 507 N.E.2d 912, 922 (1987). Criminal contempt sanctions are retrospective in nature and punish the contemnor for past acts that he cannot undo. “ ‘Civil contempt proceedings have two fundamental attributes: (1) the contemnor must be capable of taking the action sought to be coerced, and (2) no further contempt sanctions are imposed upon the contemnor’s compliance with the pertinent court order.’ ” (Emphasis added.) Helm v. Thomas, 362 Ill. App. 3d 331, 334, 839 N.E.2d 1142, 1144-45 (2005), quoting Pancotto v. Mayes, 304 Ill. App. 3d 108, 111, 709 N.E.2d 287, 289 (1999). “The purging provision in a civil contempt sanction for nonpayment must be based upon a contemnor’s ability to pay.” Betts, 155 Ill. App. 3d at 103, 507 N.E.2d at 924-25 (requiring payment of $12,950 all at once was unrealistic). In Hardy, the trial court entered judgment on child-support arrearages in the amount of $15,500, but it stayed enforcement until further order of the court where respondent had been laid off and attempted to become self-employed. Hardy, 191 Ill. App. 3d at 687, 548 N.E.2d at 140. Robert clearly is not capable of paying $24,049.78 at any time in the near future. The sanction that Robert pay $2,382.67 as partial reimbursement for Marshella’s attorney fees lacked any coercive element and constituted instead a penalty for a prior act.