dissenting:
I respectfully dissent. I believe that the majority opinion improperly usurps the trial court’s discretion to establish and fund a child support trust pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503(g) (West 1996)). In reversing the trial court’s determination, the majority has obviously chosen to ignore the plain language of section 503(g), as well as the unique circumstances of this case. In so doing, the majority has significantly undermined the ability of our trial courts to ensure that parents will take financial responsibility for their children.
The primary flaw in the majority’s analysis is that it fails to differentiate between sections 505(a) and 503(g) of the Act. Unlike section 505(a), which directs the trial court to determine an award of child support by taking a fixed percentage of the supporting party’s “net income” (750 ILCS 5/505(a)(l) (West 1996)), section 503(g) permits the trial court to set aside a portion of the parties’ “jointly or separately held estates” to protect and promote the best interests of the children (750 ILCS 5/503(g) (West 1996)). Under section 503(g), the focus is not on a distribution of the parties’ “net income,” but on the distribution of the parties’ marital and nonmarital assets. See Atkinson v. Atkinson, 87 Ill. 2d 174, 178-79 (1981). Indeed, I am aware of no case in which the amount of a section 503(g) trust was determined by taking a percentage of the supporting parties’ net income. See In re Marriage of Andrew, 258 Ill. App. 3d 924, 928-29 (1993); In re Marriage of Vucie, 216 Ill. App. 3d 692, 701 (1991); In re Marriage of Harsy, 193 Ill. App. 3d 415, 419-22 (1990).
I therefore fail to understand the majority’s conclusion that Cassandra’s trust had to be funded in accordance with the requirements of section 505(a). Such a conclusion improperly entangles the mechanics of section 505(a) with those of section 503(g) and is hopelessly irreconcilable with the plain language of section 503(g). Moreover, I believe that such an interpretation negates the very purpose of section 503(g), which is to ensure the availability of funds for a child’s support and well-being even where the parents’ future earnings will be insufficient to do so. See Andrew, 258 Ill. App. 3d at 928-29. The majority opinion effectively strips the trial court of this important tool and implies that parents have only limited financial responsibility for their children.
Additionally, the sole authority that the majority offers for its novel interpretation of section 503(g) is inapposite at best. See In re Marriage of Harsy, 193 Ill. App. 3d 415, 423 (1990). Although the court in Harsy did hold that a trial court must consider the factors contained in section 513 of the Act prior to establishing an education trust pursuant to section 503(g), the opinion contains absolutely no discussion concerning the manner in which such a trust must be funded. Harsy, 193 Ill. App. 3d at 423. The case certainly does not hold that section 503(g) trusts must be funded in conformity with the requirements of section 505(a).
Rather, under the plain language of section 503(g), I believe that the entirety of Steve’s settlement proceeds were subject to allocation for Cassandra’s trust. It is well settled that personal injury awards for claims that arise during the marriage are marital property subject to division or allocation under section 503. In re Marriage of Burt, 144 Ill. App. 3d 177, 182 (1986); In re Marriage of Gan, 83 Ill. App. 3d 265, 270 (1980). In the instant case, neither party disputes that Steve’s personal injury settlement proceeds are compensation for a claim that arose during their marriage. As the entire settlement amount constituted marital property that was subject to allocation under section 503(g), I believe that it was unnecessary and irrelevant for the trial court to consider what portion of Steve’s settlement proceeds constituted “net income.” For this same reason, I do not believe that it was necessary for the trial court to subtract that portion of the settlement proceeds awarded to Janet prior to calculating the portion to be allocated to Cassandra’s trust.
Moreover, I do not believe that the trial court abused its discretion in making the threshold determination that a section 503(g) trust was necessary to protect and promote Cassandra’s best interests. The trial court has the discretion to establish a section 503(g) trust from marital funds when there is evidence showing a need to protect the interests of the children. Andrews, 258 Ill. App. 3d at 928. The necessity of such a trust may be shown by either the unwillingness or inability of a parent charged with child support to make payment. In re Marriage of Hobson, 220 Ill. App. 3d 1006, 1013-14 (1991).
The record presented in the instant case clearly demonstrates that Steve is either unable or unwilling to meet his financial obligations to support Cassandra. Steve had not worked for several years prior to the judgment of dissolution, and his prospects for future employment are slight. His sole source of income is derived from his disability benefits and his workers’ compensation and personal injury settlements. On two separate occasions, Janet was required to file a motion for a rule to show cause against Steve to compel compliance with the trial court’s temporary support and counseling orders. At the time the dissolution order was entered, there was also a $1,700 arrearage on Steve’s support obligations.
Moreover, conspicuously absent from the majority opinion is perhaps the most troubling evidence concerning Steve’s financial priorities. The record reveals that, a year and a half after his injury, Steve purchased a $40,000 vehicle. If Steve truly were as concerned about his financial security as he represents in his brief, then I fail to comprehend the wisdom of making such a large purchase when Steve was totally disabled and his only income came from disability benefits. In light of such an extravagant purchase, and given the parties’ need to obtain bankruptcy protection, I believe that trial court properly determined that the creation of the section 503(g) trust was absolutely necessary to protect Cassandra’s best interests.
Nor do I believe that the trial court abused its discretion in awarding a lump-sum payment of 20% of the settlement proceeds to fund Cassandra’s trust. At the time of the trial court’s order, Cassandra was only seven years old. Excluding interest, the trust will provide a monthly amount of $491 until Cassandra reaches majority. However, Cassandra’s right to support will not necessarily terminate at majority. Indeed, Cassandra has a reasonable expectation that she will continue to receive financial support through college. 750 ILCS 5/513 (West 1996); Harsy, 193 Ill. App. 3d at 422-24.1 object to the majority’s mathematical analysis of this issue, as it completely fails to take such considerations into account.
In light of the fact that Steve will likely be unable to provide any additional financial support, I do not believe that $64,885 is an unreasonable amount to fund the trust. Such a sum will obviously be necessary to provide for Cassandra’s basic needs during the next 11 years. Moreover, if properly invested, the trust could also help finance Cassandra’s college education. In determining the trust amount, I believe that the trial court properly considered Cassandra’s age, as well as Steve’s age and future earning capacity.
Finally, the majority attacks the trial court’s order because it fails to describe the terms of the trust with sufficient particularity and because it lacks specific findings explaining the trial court’s rationale for establishing the trust. I believe that it is inappropriate for the majority to consider this issue when it was not raised by either party at trial or on appeal. Generally, issues not raised and argued before the appellate court are treated as waived. Meyers v. Kissner, 149 Ill. 2d 1, 8 (1992). The majority disregards this basic principle and issues its ruling without affording Janet the opportunity to brief this issue.
For the reasons already discussed, I believe that the record herein already provides sufficient justification for the trial court’s order. Because I believe that the order effectuates the purpose of section 503(g) and ensures that Steve will take financial responsibility for Cassandra’s well-being, I would affirm the judgment of the circuit court.