dissenting:
I respectfully dissent, and would affirm the order appealed from.
A petition to modify child support is often a response to a petition for a rule to show cause. The fact the obligor is found to be in contempt does not require denial of the petition to modify. A partial inability to pay support, although not a defense to contempt, may still justify modification. (See, e.g., In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 688-90, 548 N.E.2d 139, 141-42; In re Marriage of Scordo (1988), 176 Ill. App. 3d 269, 273, 530 N.E.2d 1170, 1172.) In this case defendant was found in contempt, not because he failed to pay the full amount of child support and arrearages each week, but because he failed to pay anything since April 1990, while he had gross income in 1990 of $16,000.
An order awarding child support may be modified “upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) If the court determines that a substantial change in circumstances has occurred, the court should set a new amount by following the statutory guidelines set forth in section 505 of the Act. (In re Marriage of Stone (1989), 191 Ill. App. 3d 172, 174, 547 N.E.2d 714, 715; cf. Stockton, 169 Ill. App. 3d at 325, 523 N.E.2d at 578 (consider the factors set forth in section 505(a)(2)); see also In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 411, 555 N.E.2d 1114, 1118 (statutory factors in section 505(a)(2) are not to be considered if court follows guidelines under section 505(a)(1)).) The majority does not dispute the trial court’s finding there was a substantial change in circumstances in this ease, and would affirm a reduction in child support — just not this reduction below 20% of net income.
The amount computed from the guidelines “shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) If the court deviates from the guidelines “it shall make express findings as to its reason for doing so.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) The legislature has required that a court which modifies or terminates joint custody “shall state in its decision specific findings of fact in support” of its decision, but has not required that findings justifying a deviation from the child support guidelines be written, or incorporated in the court’s order. (Ill. Rev. Stat. 1989, ch. 40, par. 610(b); cf. In re Marriage of Wright (1991), 212 Ill. App. 3d 392, 399, 571 N.E.2d 197, 201.) The majority properly concludes the trial court’s findings were sufficiently “express” here, but the ma-. jority concludes the findings were insufficient to support the modification.
The trial court in fact did not deviate from the guidelines, because there are no guidelines which apply to the specific facts of this case, where defendant has another child by a second marriage. Plaintiff argues the guidelines percentage for one child, 20%, should be used to set support. If the guidelines were stretched so as to apply in this case, however, the more appropriate percentage would be 25%, as defendant has two children, not one child. Of course plaintiff would not be entitled to the entire 25%, as she has custody of only one of defendant’s children.
The guidelines do not address every possible situation. For example, they make no provision for situations where custody is split between the parties, or where a party is responsible for the support of children from other marriages. (In re Marriage of White (1990), 204 Ill. App. 3d 579, 582, 561 N.E.2d 1387, 1389; In re Marriage of Werner (1986), 144 Ill. App. 3d 263, 267-68, 493 N.E.2d 1199, 1202; see Carnes v. Dressen (1991), 215 Ill. App. 3d 166, 170-71, 574 N.E.2d 845, 847-48.) When the guidelines of section 505(a)(1) do not specifically apply, there is a question whether the court should abandon them completely and decide the case based on traditional factors for determining child support, or begin with the amount stated by the guidelines and make some adjustment as the situation requires. In In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 599, 493 N.E.2d 666, 671, the supporting spouse, the father, had custody of one child, the mother custody of the other. The trial court there did what the trial court did here: took the guidelines amount for two children, 25%, and divided that in half, to set child support at the dollar equivalent of 121/2% of the father’s net income. The appellate court affirmed, stating it was unable to conclude the award was an abuse of discretion. (A problem with just splitting the guidelines amount is that while 25% may be enough to raise two children in one household it may not be enough to raise two children in separate households.) This court has recognized that a trial court may utilize the Flemming approach, but suggested that the factors set forth in section 505 of the Act be considered. White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389; see also In re Marriage of Taylor (1980), 89 Ill. App. 3d 278, 281, 411 N.E.2d 950, 953 (division of college expenses in proportion to income of parties approved).
The majority criticizes the trial court for not hearing evidence on the needs of Teric, or on plaintiff’s income or financial needs. The majority complains that no evidence was presented by defendant as to defendant’s financial needs. The statement that the trial court did not hear evidence is misleading. The trial court did not refuse to hear any evidence; the trial court listened to all evidence the parties chose to introduce. It is the burden of the parties, not the trial court, to present evidence in cases arising under the Act. (White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389; In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 329, 559 N.E.2d 33, 39 (failure to offer evidence creates presumption that evidence would be unfavorable); Stockton, 169 Ill. App. 3d at 324, 523 N.E.2d at 578 (burden of providing evidence on net income lies with the parties and not with the court).) A burden of cross-examining witnesses also rests on the parties. (White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389.) Reviewing courts cannot continue to reverse and remand cases arising under the Act where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence. In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54-55, 448 N.E.2d 545, 550 (a property division case); In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 90, 458 N.E.2d 1360, 1363.
Defendant could have presented more evidence on his petition to modify, but he did present enough evidence to establish a prima facie case, enough evidence to justify modification in the absence of evidence to the contrary. It was plaintiff’s obligation to present that contrary evidence, not the trial court’s obligation. This case was prosecuted by the State’s Attorney’s office for the Department, and although plaintiff was present for the hearing on contempt, the assistant State’s Attorney did not choose to have plaintiff present for the hearing on the petition to modify, or even for the motion for rehearing. The assistant State’s Attorney did not attempt to present any evidence that plaintiff’s income or Teric’s needs had changed. The trial court could therefore assume that neither had changed. The responsibility of the State’s Attorney to present evidence supporting the Department’s case is no different from that of any other litigant. See Cogan v. KAL Leasing, Inc. (1989), 190 Ill. App. 3d 145, 154, 546 N.E.2d 20, 26 (mistake to skew rules of evidence or procedure in cases where minors or incompetents are involved).
The majority says there is no indication in the record that the trial court considered other factors, or that the court considered whether defendant’s change of jobs was in good faith. It is not the duty of the trial court to prove to us its decision is correct. Rather it is our duty to affirm unless appellant has convinced us the trial court’s decision is wrong. A reviewing court will extend all reasonable presumptions in favor of the judgment or order from which the appeal is taken, and will not presume that error occurred below. (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 345-46, 459 N.E.2d 651, 654; In re Marriage of Frazier (1990), 205 Ill. App. 3d 621, 625, 563 N.E.2d 1236, 1239; In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 114-15, 559 N.E.2d 819, 829.) The majority says that it cannot determine whether a reduction below 20% would be an abuse of discretion in this case. If we cannot say the trial court was wrong we should affirm.
The argument that the trial court committed reversible error is an unusual one. That argument is found in the paragraph of the majority opinion which begins: “Section 505(a)(2) of the Act provides that the court may deviate from the established child support guidelines only after hearing evidence on all relevant factors.” (236 Ill. App. 3d at 746.) The language of section 505 indicates the legislature intended for the guidelines to apply unless there was a reason for deviation, but I see no indication that the legislature intended to change the way a trial court hears evidence, makes its decisions, or the deference we give those decisions on review. There is no legislative mandate that the trial court’s failure to consider a relevant factor, not raised by the parties, requires reversal of a child support order.
Although the traditional rule is that modification of child support requires consideration of the needs of the child and the abilities of the parents, that rule is not an inflexible one. The guidelines have brought a whole new way of thinking to the setting of child support. Once a court determines that the guidelines should be applied, the court does not consider the income of the noncustodial parent, or the particular needs of the child; the only variables considered by the court are the number of children and the net income of the party responsible for support. The arbitrary .nature of fixing support by the.use of guidelines was the criticism expressed in the case cited by the majority, In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308 (before section 505. incorporated guidelines, improper to use Cook County guidelines); see Ill. Ann. Stat., ch. 40, par. 505, Supplement to Historical and Practice Notes, at. 176 (Smith-Hurd Supp. 1992) (“The enactment of these support guidelines in Illinois reversed a well-established line of Illinois Appellate Court decisions which held that the use of guidelines, charts or standard rates is improper in determining child support, since they do not satisfy the requirement of accommodating the needs ■ of the children with the available means of the parents”).
Even using the factors, a court may increase support based on the noncustodial parent’s increased ability to pay, even though the child’s needs have not increased. (Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1038, 520 N.E.2d 1230, 1232; In re Marriage of Bean (1989), 181 Ill. App. 3d 671, 674, 537 N.E.2d 342, 344.) The trial court need not consider the income of the respondent on a petition to modify child support where the respondent does not take advantage of his opportunity to introduce such evidence. (Falat, 201 Ill. App. 3d at 328-29, 559 N.E.2d at 39.) The court may presume the expenses of raising children increase each year as the children grow older and the cost of living rises. Stone, 191 Ill. App. 3d at 174, 547 N.E.2d at 715; Falat, 201 Ill. App. 3d at 327, 559 N.E.2d at 38.
The majority criticizes the trial court for considering irrelevant factors, including the concern that defendant not lose “this” job. I understand the trial court to refer to defendant’s present job, as a truck driver. I disagree the trial court thereby considered any improper factor, and suggest the trial court understood this case better than a reviewing court ever could. There is a nationwide concern that child support orders are inadequate, and poorly enforced. (See People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 270, 529 N.E.2d 542, 544.) There are risks, however, if a court takes a one-sided approach to setting child support. An award which is too high guarantees its own failure, creating future problems not just for the obligor, but for the obligee, the courts, and the Department. I agree defendant’s support of the foster children was of only minimal relevance, but the trial court properly considered defendant’s ability to support his child by his second marriage, a factor under section 505(a)(2)(e) of the Act. The argument that the first child is entitled to the full guidelines amount of 20% before the needs of the second child may be considered is wrong in policy and in law, and may violate equal protection. (See Greiman v. Friedman (1980), 90 Ill. App. 3d 941, 948-49, 414 N.E.2d 77, 83-84; see Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 934, 527 N.E.2d 680, 681 (support obligations extend equally to every child).) The trial court was properly concerned that defendant keep working, as well as that he support his child by his first marriage and his child by his second marriage. Based on the evidence presented, the trial court’s decision was a reasonable one.
A reviewing court will not find an abuse of discretion unless no reasonable person would agree with the trial court’s decision. (In re Marriage of Jacks (1990), 200 Ill. App. 3d 112, 118, 558 N.E.2d 106, 110 (a marital property case).) Great deference must be accorded the decision of the trial judge, who is in the best position to judge the credibility of the witnesses and determine the needs of the child. (In re Marriage of Valter (1989), 191 Ill. App. 3d 584, 588, 548 N.E.2d 29, 31 (a custody modification case).) If it is true that the modification of child support payments lies within the sound discretion of the trial court, we should affirm the order appealed here.