                                  Illinois Official Reports

                                          Appellate Court



                             In re Aaliyah L.H., 2013 IL App (2d) 120414




Appellate Court              In re AALIYAH L.H., a Minor (Lacisha H., Petitioner-Appellee, v.
Caption                      Shangwé P., Respondent-Appellant).



District & No.               Second District
                             Docket No. 2-12-0414



Filed                        November 25, 2013


Held                         On appeal from an order relating to respondent’s child support and
(Note: This syllabus         daycare expenses for his daughter, the portion of the order requiring
constitutes no part of the   him to pay half of the daycare expenses in addition to child support
opinion of the court but     was upheld, especially in view of that fact that his monthly net income
has been prepared by the     was $3,219 and respondent’s net income was $720, but the trial court
Reporter of Decisions        did err in failing to deduct respondent’s health insurance premiums for
for the convenience of       his group plan covering him, his child born to petitioner, and a child
the reader.)                 born to another woman, since the cost of the plan was the same even
                             though it covered both children, and the statute does not limit the
                             deduction allowed to situations where the cost is increased for
                             additional children.



Decision Under               Appeal from the Circuit Court of Du Page County, No. 10-F-349; the
Review                       Hon. Linda E. Davenport, Judge, presiding.




Judgment                     Affirmed in part and reversed in part; child support modified.
     Counsel on               Keoini Haynes Wells, of Law Offices of Keoini Haynes Wells, of
     Appeal                   Evanston, for appellant.

                              Daniel J. Walker, Jr., of Cesario & Walker, of Hinsdale, for appellee.




     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Justices Zenoff and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1         Respondent, Shangwé P., appeals from the trial court’s order related to child support and
       daycare expenses for his daughter with petitioner, Lacisha H. On appeal, Shangwé argues that
       the trial court erred by: (1) failing to deduct health insurance premiums in calculating his net
       income; and (2) ordering him to pay half of the total daycare expenses. We affirm in part and
       reverse in part, and we modify the amount of child support from $739 per month to $642 per
       month.

¶2                                        I. BACKGROUND
¶3         The following facts are taken from the record and are not in dispute. Shangwé and Lacisha
       are the father and mother of a daughter, Aaliyah, born January 20, 2010. Pursuant to an agreed
       order entered on November 7, 2011, the parties share joint custody of their daughter, with
       Lacisha being the primary residential parent. A temporary order of support was entered at that
       time, with the issue of permanent support reserved. The trial court also ordered Shangwé to add
       Aaliyah to his health insurance obtained through his employer. Shangwé complied. The issue
       of daycare expenses was reserved. On March 12, 2012, a bench trial was held on the remaining
       issues.
¶4         Shangwé has another daughter, Amira, age 12, by a woman other than Lacisha. Shangwé
       was ordered to pay child support for Amira by the circuit court of Cook County. When
       calculating child support, the Cook County court deducted from his gross income all health
       insurance premiums. Under Shangwé’s family plan, the premiums were the same whether
       there was one child or two children on the plan. Thus, the premiums did not increase when
       Shangwé added Aaliyah to his plan. The premiums for Shangwé, Amira, and Aaliyah were
       $485 per month.

                                                  -2-
¶5         Shangwé’s annual gross income was $74,000. Regarding the parties’ expenses for daycare
       for their daughter during their respective parenting times, Lacisha spent approximately $133
       per week and Shangwé spent approximately $30 per week.
¶6         At the time of trial, Lacisha worked part-time, earning approximately $200 per week; $180
       net. In addition, Lacisha was an intern and a full-time student who planned on graduating in the
       summer.
¶7         During argument, counsel for Lacisha argued that Shangwé should not “receive credit for
       the medical insurance premiums since he’s already gotten that deduction the first time through
       with his other child. *** [I]t adds nothing to his expenses to add to Aaliyah as an insured under
       that policy.” Counsel for Shangwé argued that nothing in the Illinois Marriage and Dissolution
       of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2012)) supported the argument set forth
       by counsel for Lacisha regarding the deduction for health insurance premiums.
¶8         On March 12, 2012, after hearing testimony and argument, the trial court ordered that
       “Shangwé may not deduct the health [i]nsurance premiums paid as he obtained a deduction for
       same of $485/mo. in [the Cook County case].” The trial court stated, “[t]he problem is
       [Shangwé] already testified [that health insurance premiums were] taken out when they set
       child support [for Amira]. So, I have to assume that was correct. *** So, I can’t do it twice.”
       The trial court found that Shangwé’s net monthly income was $3,695 and ordered that “Child
       Support is 20% or $739 per mo.” The trial court also ordered each “party to pay one-half of all
       day care expenses.” Shangwé filed his notice of appeal on April 11, 2012.

¶9                                            II. ANALYSIS
¶ 10       On appeal, Shangwé argues that the trial court erred by failing to deduct health insurance
       premiums in calculating his net income pursuant to section 505(a)(3)(f) of the Act. 750 ILCS
       5/505(a)(3)(f) (West 2012). Lacisha argues that the trial court properly refused to deduct health
       insurance premiums, because Shangwé incurred no cost by adding the parties’ daughter to the
       plan.
¶ 11       Section 505(a)(1) of the Act provides that the minimum amount of child support for two
       children is 20% of the supporting party’s net income. 750 ILCS 5/505(a)(1) (West 2012).
       Section 505(a)(3) of the Act defines “net income” as income from all sources, minus certain
       deductions, including, inter alia, dependent health insurance premiums (750 ILCS
       5/505(a)(3)(f) (West 2012)). The amount of child support is within the discretion of the trial
       court, and the award will not be disturbed on appeal absent an abuse of discretion. In re
       Marriage of Carlson-Urbanczyk, 2013 IL App (3d) 120731, ¶ 14. However, we review
       de novo a question of law concerning the interpretation of a statute. In re Marriage of Petersen,
       2011 IL 110984, ¶ 9.
¶ 12       The primary objective in construing a statute is to give effect to the legislature’s intent. Id.
       ¶ 15. The best indication of legislative intent is the language of the statute, given its plain and
       ordinary meaning. Id. Where the language is clear and unambiguous, courts must apply the
       statute without resort to further aids of statutory construction. Id.
¶ 13       Section 505(a)(3)(f) of the Act provides:
                                                    -3-
                   “ ‘Net income’ is defined as the total of all income from all sources, minus the
               following deductions:
                                                   ***
                        (f) Dependent and individual health/hospitalization insurance premiums and
                   premiums for life insurance ordered by the court to reasonably secure payment of
                   ordered child support[.]” 750 ILCS 5/505(a)(3)(f) (West 2012).
¶ 14       Section 505(a)(3)(f) is clear on its face. It allows for the deduction of health insurance
       premiums for dependents, without limitation. See In re Marriage of Stone, 191 Ill. App. 3d
       172, 175 (1989). It does not indicate that the deduction can be taken only if the premium
       increases for adding the child at issue to the plan.
¶ 15       Our interpretation is consistent with Stone, where the supporting parent paid health
       insurance premiums benefitting his current wife, his other children, and the subject child. Id. at
       174-75. The trial court gave the supporting parent a deduction for only half the amount he paid
       for premiums, reasoning that only half the amount paid benefitted the child at issue. Id. at 175.
       The appellate court held that the supporting parent was entitled to deduct “all
       ‘health/hospitalization insurance premiums.’ ” Id. The court reasoned, “Section 505(a)(3)(f) is
       clear on its face and does not indicate that only the child’s share of the insurance premiums
       should be deducted.” Id.
¶ 16       Similarly, in this case, Shangwé is entitled to deduct the health insurance premiums he
       pays even though there is no additional cost for adding Aaliyah to his plan, which covers
       himself and his dependents. Accordingly, the trial court erred by failing to deduct Shangwé’s
       $485 monthly health insurance premiums to determine his monthly net income. Thus, the trial
       court’s finding that Shangwé’s monthly net income was $3,695 was erroneous.
¶ 17       Lacisha cites In re Marriage of Florence, 260 Ill. App. 3d 116 (1994), for the proposition
       that dependent health insurance premiums are not to be deducted from gross income unless the
       supporting parent is “paying the cost to cover his child.” In Florence, the supporting spouse
       presented no evidence at trial to support his claim that he paid dependent and individual health
       insurance. Id. at 123. In this case, Shangwé presented his pay stubs and W-2s showing the
       amount paid for health insurance. Thus, Florence is distinguishable from this case.
¶ 18       In addition, Lacisha cites section 505(a)(4) of the Act (750 ILCS 5/505(a)(4) (West 2012))
       for the proposition that the legislature intended that the supporting parent is allowed the
       deduction for health insurance premiums only if there is a cost associated with covering the
       child at issue. Section 505(a)(4) provides:
               “In cases where the court order provides for health/hospitalization insurance coverage
               pursuant to Section 505.2 of this Act, the premiums for that insurance, or that portion of
               the premiums for which the supporting party is responsible in the case of insurance
               provided through an employer’s health insurance plan where the employer pays a
               portion of the premiums, shall be subtracted from net income in determining the
               minimum amount of support to be ordered.” Id.



                                                   -4-
       Nothing in this section limits the deduction that section 505(a)(3)(f) allows for health
       insurance premiums for all dependents. See Stone, 191 Ill. App. 3d at 175. Thus, Lacisha’s
       argument regarding section 505(a)(4) has no merit.
¶ 19        Next, Shangwé argues that the trial court erred by ordering him to pay half of the total
       daycare expenses, in addition to child support. Shangwé argues that the child support
       adequately meets Aaliyah’s needs and that he lacks the ability to pay the additional amount.
       Absent an abuse of discretion, we will not disturb a trial court’s decision to order a supporting
       parent to make a contribution toward daycare in addition to paying child support in the amount
       set forth by the statutory guidelines. In re Marriage of Serna, 172 Ill. App. 3d 1051, 1054
       (1988).
¶ 20        Shangwé notes that his basic living expenses are $2,324 per month and that, due to the trial
       court’s order, he has a personal budget deficit each month of $739. However, at the time of
       trial, Shangwé’s monthly net income was $3,210 and Lacisha’s was approximately $720.
       Further, Shangwé paid $376 per month for service on his debt, and $390 per month in
       deductions taken from his check were voluntary. Each party lived with family members and
       did not pay rent. Lacisha paid approximately $532 per month for daycare and Shangwé paid
       approximately $120 per month. In light of this record, we cannot say that the trial court abused
       its discretion by ordering Shangwé to pay half of the total daycare expenses. 1
¶ 21        Shangwé argues that the trial court abused its discretion because it failed to consider the
       statutory factors that a trial court may consider when deviating from the statutory guidelines.
       See 750 ILCS 5/505(a)(2) (West 2012). However, Shangwé raises this issue for the first time
       on appeal. Nothing in the record indicates that Shangwé argued that having to pay half the total
       cost of daycare would be a deviation from the statutory guidelines or that the trial court should
       consider the factors set forth in section 505(a)(2). Thus, Shangwé has forfeited this issue on
       appeal by failing to raise it before the trial court. Einstein v. Nijim, 358 Ill. App. 3d 263, 275
       (2005) (an issue regarding daycare expenses was forfeited on appeal because the appellant
       failed to raise the issue before the trial court).
¶ 22        Shangwé cites Serna, 172 Ill. App. 3d 1051, for the proposition that “the circuit court has
       discretion to require an obligor to make a contribution to daycare in addition to regular child
       support after considering all relevant factors [pursuant to section 505(a)(2)].” Even if Shangwé
       had not forfeited his argument regarding section 505(a)(2), Serna does not stand for this
       proposition. In Serna, the supporting parent argued on appeal that “the day-care costs should
       be considered as part of the figure computed according to the guidelines.” Id. at 1054. The
       nonsupporting parent argued that “the division of day-care expenses was a decision within the
       discretion of the trial court.” Id. The appellate court held that the trial court did not abuse its
       discretion in dividing the daycare costs between the parties without applying the factors set



          1
           We also note that Shangwé’s total monthly expenses will now be lower because we modify
       Shangwé’s child support obligation from $739 per month to $642 per month. Infra ¶ 25.

                                                    -5-
       forth in section 505(a)(2) to the facts of the case. Id. 2 Thus, even if Shangwé had not forfeited
       the issue, Serna would not have aided him with his argument that the trial court was required to
       apply the factors set forth in section 505(a)(2).
¶ 23       In addition, Shangwé cites Fedun v. Kuczek, 155 Ill. App. 3d 798 (1987), for the
       proposition that his overall financial resources and needs must be considered together with the
       fact that Aaliyah’s needs are adequately met by his regular child support obligation. In Fedun,
       the trial court modified child support after finding a substantial change in circumstances based
       on an increase in the supporting parent’s income and the fact that the child had grown older and
       the cost of living had risen. Id. at 802. The appellate court then modified the award from $325
       per month to $300. Id. at 802-03. The court reasoned that $325 per month was excessive
       considering: all of the additional expenses the supporting parent was ordered to pay compared
       to his net income; the fact that the custodial parent failed to provide sufficient evidence
       regarding the child’s needs; and that the child and the custodial parent maintained a higher
       standard of living than during the parties’ marriage. Id. at 802-04. In this case, Shangwé does
       not challenge the trial court’s award of child support set forth by the statutory guidelines;
       instead, he challenges the trial court’s order that he contribute to an additional expense.
       Further, unlike in Fedun, Shangwé does not allege that Lacisha failed to provide sufficient
       evidence regarding the actual cost of daycare; the cost is not at issue in this case. The order
       regarding daycare expenses is prospective only. In addition, Shangwé makes no argument
       regarding Aaliyah’s and Lacisha’s standard of living. Thus, Fedun is distinguishable from this
       case.

¶ 24                                        III. CONCLUSION
¶ 25        For the reasons stated, we affirm the portion of the trial court’s order requiring Shangwé to
       pay half of all daycare expenses. We reverse the portion of the trial court’s order failing to
       deduct health insurance premiums in calculating Shangwé’s net income. Had the trial court
       properly deducted Shangwé’s $485 monthly health insurance premiums to determine his
       monthly net income, it would have determined that the amount was $3,210. Thus, after
       calculating 20% of Shangwé’s proper net income we modify the amount of Shangwé’s child
       support obligation from $739 per month to $642 per month, pursuant to our authority under
       Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994).

¶ 26       Affirmed in part and reversed in part; child support modified.

           2
             We note that, during the pendency of this case, the General Assembly enacted Public Act 97-941
       (eff. Jan. 1, 2013) (adding 750 ILCS 5/505(a)(2.5)), which specifically addresses childcare in addition
       to other expenses the court may order a parent to contribute to. Section 505(a)(2.5) provides, in part:
                     “The court, in its discretion, in addition to setting child support pursuant to the guidelines
                and factors, may order either or both parents owing a duty of support to a child of the marriage
                to contribute to the following expenses, if determined by the court to be reasonable:
                         ***
                         (b) child care[.]” 750 ILCS 5/505(a)(2.5)(b) (West 2012).
                                                        -6-
