dissenting:
I agree with much of the majority decision. I agree we should interpret statutes to give effect to the legislature’s intent. I agree that even if only medical expenses that constitute “repayment of debt” may be deducted from net income under section 505(a)(3)(h), those expenses may still play a role in a trial court’s decision regarding departure from the statutory guidelines. I also agree that despite the guidelines, the setting of child support is a judicial function, where the trial court is required to exercise its best judgment.
My disagreement centers on the trial court’s refusal to consider the medical expenses in this case. Jason has two children, Jordan and Jennah, who has special medical needs because she was born prematurely and without a properly developed stomach. According to the trial court, if there are not sufficient funds to take care of Jennah, that is just too bad. “ ‘The [c]ourt is of the opinion that it would be contrary to Jordan’s best interest for her, in essence, to subsidize [Jason’s] subsequent marriage with a reduction of the child support to which she is presumptively entitled.’ ” 358 Ill. App. 3d at 273.
The trial court’s refusal to consider Jennah’s needs is wrong as a matter of law. 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, 90 Ill. App. 3d 941, 948-49, 414 N.E.2d 77, 83-84 (1980) (abuse of discretion to refuse to consider testimony concerning financial obligations to second family). Whatever the trial court’s view of Jason, Jordan and Jennah stand on an equal footing. See Rawles v. Hartman, 172 Ill. App. 3d 931, 934, 527 N.E.2d 680, 681-82 (1988) (support obligations extend equally to every child). The trial court was not allowed to ignore Jennah in setting child support for Jordan. Nor was the trial court allowed to punish Jason for his remarriage.
It has been suggested that the language of section 505(a)(3)(g) allowing the deduction of “[p]rior obligations of support or maintenance actually paid pursuant to a court order” (750 ILCS 5/505(a)(3)(g) (West 2000)) carries forward the rule that a divorced spouse’s obligations to the first family must be met before the obligations to the second family can or will be considered. In re Marriage of Potts, 297 Ill. App. 3d 110, 114-15, 696 N.E.2d 1263, 1266 (1998). I would suggest that use of the term “prior obligations” simply expresses the desire that child support be calculated based on the current situation and not on consideration of future obligations or attempts to predict what may happen in the future.
Potts’s statement of the “first family” rule is not supported by the cases it cites. In re Marriage of Zukausky, 244 Ill. App. 3d 614, 624, 613 N.E.2d 394, 402 (1993), mentions the rule but goes on to say “[t]he court should not ignore the supporting parent’s obligations to a second family and should consider that factor in deciding the appropriate modification award for the first family.” Roqueplot v. Roqueplot, 88 Ill. App. 3d 59, 63, 410 N.E.2d 441, 444 (1980), involved a petition to modify child support after the petitioner married a woman who had five children. Support of other children may be disregarded where there is no legal or moral obligation to provide it. In re Marriage of Vucic, 216 Ill. App. 3d 692, 704, 576 N.E.2d 406, 414 (1991).
We should also recognize that the trial court did not simply order payment of the guidelines amount, 20% of Jason’s monthly net income, for Jordan. In addition, the trial court ordered Jason to pay one-half of Jordan’s day-care expenses and medical expenses. Those expenses are normally a part of the guidelines amount. The guidelines are useful in allowing support to be set in a fair amount without considering detailed and perhaps confusing evidence as to the cost of the child’s housing, food, clothing, and medical expenses. When the component parts of the guidelines amount are added to it, there is duplication, which may be permissible if the court believes a higher award than the guidelines amount is appropriate.
I would remand for a new hearing on child support, at which the trial court would consider Jennah’s medical expenses.