                             2015 IL App (2d) 140345
                                  No. 2-14-0345
                         Opinion filed September 28, 2015
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF JENNIFER HILL,       ) Appeal from the Circuit Court
                                       ) of Kendall County.
      Petitioner-Appellee,             )
                                       )
and                                    ) No. 03-D-72
                                       )
RONALD M. HILL, JR.,                   ) Honorable
                                       ) Marcy L. Buick,
      Respondent-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

                                           OPINION

¶1     The respondent, Ronald M. Hill, Jr., appeals from the December 30, 2013, order of the

circuit court of Kendall County, which set child support retroactive to June 17, 2012, and

awarded a contribution to the attorney fees incurred by the petitioner, Jennifer Hill. We affirm.

¶2                                      BACKGROUND

¶3     The parties were married in 1994 and divorced in 2004.           They had three children

together. Jennifer was designated as the children’s primary residential custodian. The judgment

reserved Ronald’s child support obligation and instead provided that he was to pay $4,250 per

month for unallocated family support until September 2008. Then, Ronald’s child support

obligation would be established based on Ronald’s income and the statutory guidelines. Despite
2015 IL App (2d) 140345


the above language in the judgment, Ronald’s child support obligation was not recalculated after

September 2008. Instead, he continued to pay $4,250 per month.

¶4     On July 17, 2012, Jennifer filed a petition to reset child support. On August 13 and 14,

2013, the trial court conducted a hearing on Jennifer’s petition.

¶5     Ronald testified that his father and his father’s business partner, Lee Larson, owned J.B.

Industries. J.B. Industries creates tools for use in air conditioner repair. Ronald’s father and

Larson also owned a building complex on Farnsworth Avenue in Aurora that J.B. Industries used

(the Farnsworth property). In 2005, Ronald and a friend, Jeffrey Cherif, purchased 100% of the

stock in J.B. Industries for $7 million and the Farnsworth property for an additional $7 million.

The deal was financed by Ronald’s father and Larson. The loans were to be repaid by 2016.

Ronald and Cherif did not put any money down to buy the property.

¶6     Each month, Ronald and Cherif paid approximately $140,000 to Ronald’s father and

Larson to repay the loans. Ronald and Cherif were able to pay down the loans from $14 million

to $5 million in 6 years. Ronald and Cherif have the ability to modify the loan agreement and

prepay the remainder of the loans without penalty. In 2011, the terms of the loans were modified

to allow Ronald to be paid an annual salary of $500,000.

¶7     In 2008, Ronald and Cherif borrowed funds and purchased, for $1.2 million, a home on

Grand Bahama Lane in Riviera Beach, Florida. Ronald and Cherif stated on their corporation’s

tax returns that the Florida residence was a corporate asset.

¶8     Ronald acknowledged that he owned a home in Naperville and a vacation home in

Ingleside. In 2011, he purchased an additional home in Naperville for his mother-in-law to live

in. She paid him $1,000 a month, which was insufficient to cover the mortgage and property

taxes. Ronald also acknowledged that he owns seven cars.



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¶9     Both parties retained experts to determine Ronald’s annual income for child support

purposes. Howard Ellison, Jennifer’s expert, testified that Ronald’s income was $653,878.

Ellison arrived at that amount, in part, by giving Ronald a credit for the interest he paid on his

business loans. Ellison’s report indicated that the average amount of interest that Ronald paid to

purchase J.B. Industries and the Farnsworth property from 2009 to 2011 was $78,959. John

Coffey, Ronald’s expert, testified that Ronald’s income was $189,531.         He arrived at that

amount, in part, by giving Ronald a credit against his income for both the principal and the

interest he paid on his business loans. Coffey’s report indicated that the average amount of

principal and interest that Ronald paid from 2009 to 2011 on his business loans was $434,039.

¶ 10   Jennifer testified that she earned $35,000 per year up until recently when her job was

eliminated and she became unemployed. She still lived in the former marital residence, which

was in a state of disrepair because she was not able to afford maintenance and upkeep. She did

not have a working computer in the home. The only vacations she had taken with the children

had been paid for by her parents or her old boyfriends.

¶ 11   On December 30, 2013, the trial court entered its ruling, finding that, based on Ronald’s

increased income and the children’s increased needs, there had been a substantial change in

circumstances that warranted an increase in child support. The trial court found that Ellison’s

determination of Ronald’s income was reasonable. However, the trial court found that Ellison

should not have granted Ronald deductions against his income for certain depreciation expenses

as well as the expenses associated with the Florida residence and the residence Ronald was

renting to his mother-in-law. As such, the trial court concluded that Ronald’s net income was

$826,478. The trial court rejected Ronald’s arguments that he should be allowed to deduct

additional money for his repayment of business loans, finding that the “astronomical money



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2015 IL App (2d) 140345


amounts Ronald was paying annually towards his purchase of both the stock in J.B. Industries,

LLC as well as the Farnsworth property” were not necessary and therefore not reasonable. The

trial court further found that “the apparent accelerated payment schedule leaves very little money

for the payment of Ronald’s child support obligations.”

¶ 12    After determining Ronald’s income, the court set Ronald’s child support obligation at

28% of his net income pursuant to the statutory guidelines: $231,413.84 per year ($19,284.48 per

month). The trial court found that a downward deviation from that amount was not appropriate,

because (1) the children were not living the lifestyle they would have had if the parties had

stayed married and (2) Ronald would still have approximately $600,000 per year in income to

spend after paying child support. The child support obligation was retroactive to June 17, 2012,

the date Jennifer filed her petition.

¶ 13    Further, the trial court found that Jennifer did not have the financial resources to pay her

attorney fees and that Ronald did. The trial court additionally found that the fees Jennifer had

alleged in her petition for payment of fees were reasonable. The trial court therefore ordered that

Ronald pay Jennifer’s fees of $49,025.04.

¶ 14    Following the trial court’s ruling, Ronald filed a timely notice of appeal.

¶ 15                                        ANALYSIS

¶ 16    Ronald’s first contention on appeal is that the trial court erred in calculating his net

income by not deducting the loan payments that he necessarily and reasonably incurred in order

to purchase J.B. Industries and the Farnsworth property.

¶ 17    At the outset, we note that the parties dispute the appropriate standard of review for

Ronald’s first contention. Ronald contends that our review is de novo while Jennifer insists that

the proper standard of review for a child support award is abuse of discretion. We agree with



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Jennifer. See In re Marriage of Davis, 287 Ill. App. 3d 846, 852 (1997) (the trial court enjoys

broad discretion in determining the modification of child support, and we will not overturn its

decision unless it results from an abuse of discretion).        The cases Ronald relies on are

distinguishable as they address what constitutes income under section 505(a)(3) of the Illinois

Marriage and Dissolution of Marriage Act (the Dissolution Act) (750 ILCS 5/505(a)(3) (West

2012)) and not whether repayment of a loan is reasonable and necessary. See In re Marriage of

McGrath, 2012 IL 112792 (addressing whether funds regularly withdrawn from payor’s savings

account are considered income for child support purposes); In re Marriage of Lindman, 356 Ill.

App. 3d 462 (2005) (addressing whether disbursements from petitioner’s IRA were “income” for

purposes of calculating net income under section 505 of the Dissolution Act). As we will discuss

further below, a trial court’s determination as to what constitutes a reasonable and necessary

expense necessarily requires the trial court to exercise some discretion.

¶ 18   Turning to the merits of Ronald’s first contention, we first note that the statutory

definition of “net income” for child support purposes is the total of the noncustodial parent’s

income from all sources, less certain specified deductions. 750 ILCS 5/505(a)(3) (West 2012).

Relevant here is the deduction for the repayment of loans for “reasonable and necessary expenses

for the production of income.” 750 ILCS 5/505(h) (West 2012). “Necessary” describes “those

expenses outlaid by a parent with a good-faith belief his or her income would increase as a result,

and which actually did act to increase income, or would have done so absent some extenuating

circumstance.” Gay v. Dunlap, 279 Ill. App. 3d 140, 149 (1996). “Reasonable” means not

extreme or excessive. Davis, 287 Ill. App. 3d at 853. In order to determine what is reasonable,

one must consider the relationship between the amount of the expense and the amount by which




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2015 IL App (2d) 140345


income is in good faith expected to increase as a result. Id. The definition of reasonable implies

that the same expense could be reasonable in one context and not in another. Id.

¶ 19   In determining what expenses are reasonable and necessary, a court may properly

conclude that such expenses are only partially deductible from one’s income. Roper v. Johns,

345 Ill. App. 3d 1127 (2004). In Roper, the father (Jeff) had incurred $180,000 in student loans

to attend college and law school. He sought to have his student loan payments deducted from the

income he would have available to pay child support for his son Christopher. The trial court

ruled that only part of the loans was deductible. Id. at 1130. In affirming, the reviewing court

considered cases from other jurisdictions and then discussed conflicting policy considerations

and the appropriateness of finding only part of those loans deductible. Id. at 1131-32. The

reviewing court explained:

               “We agree with the Nebraska court that fostering the education of a young parent

       such as Jeff, by considering student loans in the child support determination, benefits the

       child. But we also agree with the Minnesota court that the benefit to the child is elusive

       if the child is not allowed to share in the parent’s increased income, because the

       difference in support is all but eliminated by such a deduction. Our statutory requirement

       that a debt incurred for the production of income be reasonable and necessary in order to

       be deductible is itself a compromise between these competing policy concerns. It would

       undermine this policy to hold that deductibility must be an all-or-nothing proposition.

       The instant case provides an excellent example of the flaw inherent in such an inflexible

       rule. *** [T]he court below apparently found that it was reasonable and necessary for

       Jeff to pursue a law degree but that, in light of the circumstances, it was not reasonable

       and necessary for him to incur the level of debt that he did. Were the trial court to find



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2015 IL App (2d) 140345


       the debt deductible in its entirety, it would prevent Christopher from sharing in the

       benefits of Jeff’s enhanced earning potential. On the other hand, were the court to find

       that the debt could not be deducted at all, it would discourage parents in Jeff’s position

       from pursuing any higher education that could benefit themselves and their children

       financially, as well as in less tangible ways. Neither of these results is desirable in light

       of the policy embodied in our child support statute. Thus, we conclude that courts must

       have the flexibility to find student loan debt partially deductible.” Id. at 1132-33.

¶ 20   We believe that the court’s reasoning in Roper as to student loans applies equally to the

loans Ronald incurred in this case. The loans Ronald incurred have clearly benefitted himself

financially, and thus potentially his children as well. However, if the loans were completely

deductible, then Ronald’s children would not be able to share the benefits of Ronald’s enhanced

earnings that have resulted from the loans. Indeed, Ronald acknowledges that, if the loans were

fully deductible, the children would receive child support that was commensurate only to the

amount that they were receiving before he assumed the loans in 2005. We therefore believe that

it was appropriate for the trial court to find that the loans were only partially deductible.

¶ 21   Here, in adopting Ellison’s report, the trial court did exactly that. Ellison testified that in

determining Ronald’s income he deducted the interest that Ronald paid on his loans for his

business investments. Ellison’s report indicated that the average amount of interest that Ronald

paid from 2009 to 2011 was $78,959. As such, Ronald received a credit for that amount. In

rejecting Coffey’s report, which gave Ronald a credit for both the principal and the interest that

he paid on his business investment loans (an average of $434,039 from 2009 to 2011), the trial

court concluded that Ronald was entitled to only a partial deduction. Based on the circumstances

of this case, we cannot say that the trial court’s decision constituted an abuse of discretion.



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¶ 22   We note that Ronald complains that the trial court gave him even fewer deductions

against his income than Ellison had. Specifically, the trial court declined to give Ronald credit

for (1) his business-related depreciation, (2) expenses related to the Florida residence, and (3) the

property in Naperville that he was renting to his mother-in-law. The trial court explained that it

was not going to award Ronald a deduction for the business-related depreciation when Ronald

did not request such a deduction. As to deductions for the investment properties, as noted above,

the trial court was not obligated to give Ronald deductions for all of his investments. See id.

Based on the record before us, we cannot say that the trial court’s refusal to grant Ronald

additional deductions against his income constituted an abuse of discretion.

¶ 23   In determining that the trial court did not abuse its discretion in setting Ronald’s income,

we find Ronald’s reliance on In re Marriage of Tegeler, 365 Ill. App. 3d 448 (2006), and Davis,

287 Ill. App. 3d 846, to be misplaced. In Tegeler, the reviewing court determined that the father

should be able to deduct from his income his day-to-day operating expenses for running a farm.

Tegeler, 365 Ill. App. 3d at 455. In Davis, the reviewing court found that the father could deduct

depreciation expenses related to his purchase of a partnership interest in a dental practice. Davis,

287 Ill. App. 3d at 848-49. Neither the Tegeler court nor the Davis court found that the father

was trying to manipulate his income and expenses so as to lower his child support obligations.

Conversely, here the trial court specifically found that Ronald had needlessly accelerated his

repayment of the loans, leaving him very little money for the payment of his child support

obligations. As noted above, whether expenses will be found deductible depends on the context

of how those expenses were incurred. Again, based on the record, we cannot say that the trial

court abused its discretion in determining that Ronald was not entitled to deductions for all the

expenses he had incurred in purchasing J.B. Industries and the Farnsworth property.



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¶ 24   We also find Ronald’s reliance on In re Marriage of Freesen, 275 Ill. App. 3d 97 (1995),

and McGrath, 2012 IL 112792, to be unpersuasive. Ronald argues that both cases stand for the

proposition that “[n]either passive income nor non income assets are to serve as a basis for

calculating or paying child support.” He therefore contends that the bulk of his income should

not have been considered for child support purposes. Neither case supports Ronald’s argument.

In Freesen, the reviewing court concluded that the trial court did not abuse its discretion in

excluding from the husband’s income $50,000 that he had earned in passive income. Freesen,

275 Ill. App. 3d at 104. Thus, the Freesen court clearly implied that it is within the trial court’s

discretion to include or exclude one’s passive income in calculating his or her net income.

¶ 25   McGrath is inapplicable as that case addressed whether the father’s withdrawals of

money from a savings account could be considered part of his net income. McGrath, 2012 IL

112792, ¶ 10. The supreme court held that the father’s withdrawals were not income, because

the money at issue already belonged to the father. Id. ¶¶ 14-15.

¶ 26   We further note that in a recent case, In re Marriage of Moorthy, 2015 IL App (1st)

132077, ¶¶ 64-65, the reviewing court held that the trial court did not abuse its discretion in

determining that the father’s proportionate share of the retained earnings from his majority-

owned subchapter S corporation should not be imputed to him for purposes of calculating his

child support obligations. In so ruling, the reviewing court noted that the trial court specifically

found that the father had done nothing to manipulate his income to minimize his child support

obligations. Id. ¶¶ 36, 64. As such, Moorthy is distinguishable as here the trial court’s decision

indicates that it did believe that Ronald was manipulating his income for purposes of calculating

child support.




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¶ 27   Ronald’s second contention on appeal is that the trial court abused its discretion by not

ordering an equitable downward deviation in the final child support award. Ronald insists that

the trial court’s award of $19,284.48 per month was excessive and created an improper windfall.

¶ 28   The parties again dispute the appropriate standard of review for this issue, with Ronald

insisting that our review is de novo while Jennifer asserts that it is abuse of discretion. We agree

with Jennifer. See In re Marriage of Scafuri, 203 Ill. App. 3d 385, 391 (1999) (a trial court’s

decision whether it should deviate from the statutory guidelines in setting child support will not

be disturbed absent an abuse of discretion). The cases that Ronald cites—Anderson v. Heckman,

343 Ill. App. 3d 449 (2003), and In re Marriage of Demattia, 302 Ill. App. 3d 390 (1990)—do

not support his argument. In Anderson, the reviewing court used the de novo standard of review

to determine whether section 505 should apply at all in child support modification proceedings.

Anderson, 343 Ill. App. 3d at 452. After determining that section 505 did apply, the reviewing

court analyzed whether the trial court had abused its discretion by not stating its reasons for a

downward deviation. Id. at 453. In Demattia, the reviewing court used the de novo standard of

review to determine whether the child support guidelines apply to cases where the nonresidential

parent has extended visitation. Demattia, 302 Ill. App. 3d at 393. After determining that the

guidelines did apply, the trial court then analyzed whether the trial court abused its discretion by

not deviating downward from the guideline support. Id. at 394. Thus, despite Ronald’s protests

to the contrary, both Anderson and Demattia indicate that a trial court’s decision whether to

deviate from the statutory guidelines in setting child support will not be disturbed absent an

abuse of discretion.

¶ 29   Turning to the merits of Ronald’s second argument, the statutory guidelines contained in

section 505 of the Dissolution Act (750 ILCS 5/505 (West 2012)) create a rebuttable



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presumption that child support in the guideline amount is appropriate. Stockton v. Oldenburg,

305 Ill. App. 3d 897, 902 (1999). The proponent of a deviation from the guidelines bears the

burden of producing evidence that compelling reasons exist to justify the deviation. Department

of Public Aid ex rel. Nale v. Nale, 294 Ill. App. 3d 747, 752 (1998).

¶ 30   A trial court is justified in awarding child support below the guideline amount where the

parties’ incomes are more than sufficient to provide for the reasonable needs of the parties’

children. See In re Marriage of Lee, 246 Ill. App. 3d 628, 643 (1993). However, the trial court

is not required to do so. In re Marriage of Hubbs, 363 Ill. App. 3d 696, 707 (2006). When

dealing with a parent who has a high income, the trial court must balance the concerns that (1) a

child support award should not be a windfall and (2) the standard of living that the children

would have enjoyed absent the dissolution should be maintained. In re Marriage of Charles, 284

Ill. App. 3d 339, 347 (1996). In light of the standard of living that the children would have

enjoyed, child support is not to be based solely upon their shown needs. In re Marriage of

Singleteary, 293 Ill. App. 3d 25, 36 (1997).

¶ 31   After reviewing the record, we do not believe that the trial court’s failure to deviate

downward from the statutory guidelines constituted an abuse of discretion. The record reveals

that Ronald had a home in Naperville, two vacation homes, seven cars, and over $1 million in

savings. He also had a job with an annual salary of up to $500,000. The trial court could have

reasonably determined that, had the parties stayed married, the children would have enjoyed a

high standard of living. The trial court could therefore have rationally concluded that adhering to

the statutory guidelines was the best way to replicate the standard of living that the children

would have enjoyed had the parties stayed married. See id. Accordingly, we decline to disturb

the trial court’s award of child support.



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¶ 32   Ronald’s final contention on appeal is that the trial court erred in ordering that he

contribute $49,025.04 toward Jennifer’s attorney fees pursuant to section 508(a) of the

Dissolution Act. 750 ILCS 5/508(a) (West 2012). Ronald argues that, as Jennifer currently

receives monthly child support of $19,284.48, and received retroactive child support of

$337,478, she has ample ability to pay her own fees. We review a trial court’s award of attorney

fees under the abuse-of-discretion standard. In re Marriage of Sobieski, 2013 IL App (2d)

111146, ¶ 37.

¶ 33   Ronald cites In re Marriage of Schinelli, 406 Ill. App. 3d 991, 996 (2011), for the

proposition that the maintenance paid to a spouse may be considered as part of that spouse’s

income when considering the parties’ relative financial circumstances and whether the requesting

spouse is unable to pay his or her own attorney fees. Schinelli did not, however, consider child

support as income to the receiving spouse; to the contrary, child support generally should not be

considered as income in this context. Sobieski, 2013 IL App (2d) 111146, ¶ 47 (child support

payments could not be factored into whether custodial parent could pay her own attorney fees, as

those monies were for child support and not for the parent’s personal use or payment of attorney

fees (citing In re Keon C., 344 Ill. App. 3d 1137, 1147 (2003))). Although Ronald asks that we

depart from Sobieski, we decline to do so.

¶ 34   Here, when child support is not considered, Jennifer’s gross income when she was

employed was $35,000 per year, while Ronald’s income (net after all applicable deductions) was

in excess of $800,000. Thus, their incomes are not equal. Moreover, our court has recently

noted that Schinelli relied on older case law in looking solely to the parties’ incomes and assets

in determining “inability to pay,” while the current version of section 508(a) requires a court to

consider all of the various statutory factors contained in sections 503(j) and 504 of the



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Dissolution Act (750 ILCS 5/503(j), 504 (West 2012)), relating to the distribution of marital

property and the award of maintenance. See Sobieski, 2013 IL App (2d) 111146, ¶ 49 (noting

this reliance on older case law and that the phrase “inability to pay” does not appear in the

current version of section 508(a)). Further, as Illinois courts have recognized, a spouse need not

show that he or she is destitute in order to justify an award of attorney fees. In re Marriage of

Schneider, 214 Ill. 2d 152, 174 (2005); In re Marriage of Pond, 379 Ill. App. 3d 982, 987 (2008).

¶ 35   Here, as the trial court properly considered all of the relevant statutory factors in

determining the award of attorney fees, we find no abuse of discretion in that award.

¶ 36                                     CONCLUSION

¶ 37   For the foregoing reasons, the judgment of the circuit court of Kendall County is

affirmed.

¶ 38   Affirmed.




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