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                                  Appellate Court                              Date: 2016.12.19
                                                                               11:02:02 -06'00'




                  In re Marriage of Eastburg, 2016 IL App (3d) 150710



Appellate Court       In re MARRIAGE OF AARON TODD EASTBURG, Petitioner-
Caption               Appellee, and ALICIA LYNN EASTBURG, n/k/a Alicia Lynn
                      Condreay, Respondent-Appellant.



District & No.        Third District
                      Docket No. 3-15-0710



Filed                 October 13, 2016



Decision Under        Appeal from the Circuit Court of Knox County, No. 06-D-114; the
Review                Hon. Scott Shipplett, Judge, presiding.



Judgment              Affirmed.



Counsel on            Barney Olson II (argued), of Galesburg, for appellant.
Appeal
                      James P. Lawson (argued) and Daniel M. Cordis, of Cordis & Cordis,
                      of Princeville, for appellee.



Panel                 JUSTICE SCHMIDT delivered the judgment of the court, with
                      opinion.
                      Presiding Justice O’Brien concurred in the judgment and opinion.
                      Justice Carter specially concurred, with opinion.
                                             OPINION

¶1       Aaron Eastburg, petitioner, is obligated to pay child support to his former spouse,
     respondent, Alicia Eastburg. Originally, the parties stipulated to the amount of Aaron’s child
     support payments. The figure—$511 bimonthly—was calculated at 28% of his net income.
     The parties also agreed to equally divide the cost of medical expenses not covered by
     insurance for the minors. Alicia later petitioned to increase Aaron’s child support payments
     due to increases in his income. After the most recent petition, the parties stipulated to an
     increased payment amount based on Aaron’s 2014 net income. Alicia then sought 28% of
     Aaron’s 2014 federal income tax refund and a decrease in her obligation for the minors’
     medical costs not covered by insurance. The trial court denied Alicia’s requests. She appeals
     both denials. We affirm.

¶2                                         BACKGROUND
¶3       Aaron and Alicia married in 1998. They have two minor children. The circuit court of
     Knox County entered a judgment for dissolution of the marriage in December 2006. Shortly
     thereafter, Aaron and Alicia agreed to a joint parenting order wherein Alicia retained
     physical custody of the minors, but both had legal custody. The order established Aaron’s
     child support payment at $511 bimonthly. The amount allegedly represented 28% of Aaron’s
     net income. Aaron and Alicia split the cost of uninsured medical expenses evenly.
¶4       In October 2014, Alicia filed a motion to modify child support. She alleged that Aaron’s
     income had increased, and the trial court’s order should be modified to reflect the change.
     Alicia further argued she was entitled to a reduction in her obligation for the minors’
     uninsured medical expenses. She averred that covering half of the expenses placed an
     inordinate burden on her because of the increased disparity in their incomes.
¶5       The parties proceeded to discovery. Aaron produced his income records, including W-2s
     and federal income tax returns from 2012, 2013, and 2014. Aaron intentionally withheld
     taxes more than necessary throughout each year and received federal income tax refunds
     after his tax obligations were properly calculated. For tax year 2014, Aaron’s federal income
     tax refund was $14,239.
¶6       Ultimately, Aaron agreed that his net income had increased. At a hearing in May 2015,
     the parties stipulated that Aaron’s child support payments would be $721 bimonthly, applied
     retroactively to the date Alicia filed her petition. Alicia’s counsel next claimed Alicia was
     entitled to precisely $3,986.92—28% of Aaron’s 2014 federal income tax refund—and a
     reduction in her obligation for the minors’ uninsured medical expenses.
¶7       The trial court later issued an opinion letter denying Alicia’s request for 28% of Aaron’s
     2014 federal income tax refund. The trial court noted that the parties had already agreed to an
     increase in child support payments, and this was not a case where the payor was “gam[ing]
     the system” because his overwithholding “did not affect the current support computation.”
     The trial court also denied Alicia’s request for a decrease in her uninsured medical expense
     obligation. The trial court reasoned that the parties still had the same employment they had
     when they originally agreed to share the cost of uninsured medical expenses, and the current
     disparity in their respective incomes was not so great that equity demanded amending their
     agreement.


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¶8        At Alicia’s insistence, the court issued an order based on its opinion letter. Alicia filed a
       motion to reconsider which the trial court denied. Alicia appeals.

¶9                                              ANALYSIS
¶ 10       Alicia argues that under the plain language of section 505(a)(3) of the Illinois Marriage
       and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(3) (West 2014)), the trial court
       erred in finding that (1) she is not entitled to 28% of Aaron’s federal income tax refund and
       (2) she is not entitled to a reduction in her proportion of the minors’ uninsured medical
       expenses.

¶ 11                                I. 2014 Federal Income Tax Refund
¶ 12       Generally, we review a trial court’s determination of net income for an abuse of
       discretion. In re Marriage of Minear, 181 Ill. 2d 552, 560 (1998). Whether a tax refund is
       income under the child support provision of the Act, however, is an issue of statutory
       construction we review de novo. See In re Marriage of Shores, 2014 IL App (2d) 130151,
       ¶ 24.
¶ 13       Section 505(a)(3) defines “net income” as income from all sources minus, inter alia,
       “properly calculated” federal and state taxes. 750 ILCS 5/505(a)(3)(a), (b) (West 2014). The
       disparity between federal income tax withheld and federal income tax paid should be
       accounted for in calculating child support payments under the Act. See, e.g., In re Marriage
       of Ackerley, 333 Ill. App. 3d 382, 391 (2002); In re Marriage of Pylawka, 277 Ill. App. 3d
       728, 732-33 (1996). Section 510 of the Act prohibits Alicia from receiving payment prior to
       the date of her petition in October 2014. 750 ILCS 5/510(a) (West 2014); In re Marriage of
       Petersen, 2011 IL 110984, ¶ 18. Thus, if Alicia was entitled to any portion of Aaron’s 2014
       federal income tax refund, it would be limited to the share Aaron earned from October of that
       year forward.
¶ 14       Whether Aaron’s tax withholding was properly calculated each pay period according to
       the Internal Revenue Service is not always dispositive. The relevant inquiry is whether the
       payor’s child support payment was calculated properly based on his or her actual net income.
       In this instance, we need not answer the question. The trial court did not make the
       calculation, the parties did. Aaron and Alicia stipulated to Aaron’s child support obligation in
       open court in May 2015. This was after the close of discovery while Alicia had Aaron’s 2014
       W-2 and federal income tax return. If the stipulated amount of Aaron’s child support
       obligation is not 28% of his 2014 net income, the parties are at fault, not the trial court. Even
       if we were to assume error, Alicia cannot complain of error which she injected into the case.
       In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).
¶ 15       At oral arguments, Alicia’s counsel agreed there was no fraud that induced the parties to
       stipulate to Aaron’s payment amount. In response to direct questioning from this court,
       Alicia’s counsel stated: “All of the income that Mr. Eastburg had in 2014 was not known at
       the time that a new child support level was set. *** The over withholding didn’t become
       apparent until we saw his—his tax return—until after it was filed in 2015.”
¶ 16       Counsel’s claims are contradicted by the record. At the hearing in May 2015,
       immediately after stipulating to Aaron’s new child support payment, counsel argued Alicia
       was entitled to 28% of Aaron’s 2014 federal income tax refund. Counsel’s argument was not


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       based on a theoretical figure. As discussed previously, he argued for a precise amount based
       on Aaron’s known 2014 federal income tax return. Alicia knew of the refund at the time she
       stipulated to Aaron’s new child support obligation.
¶ 17       Alicia does not claim Aaron’s payments should increase. Alicia argues, rather, that under
       the Act, a payor’s tax refund should always be considered income for child support purposes.
       Her counsel stated that “historically” where he practices “if there’s a refund,” judges consider
       it income for child support purposes. This argument is not supported by our reading of
       section 503 or the case law cited by counsel. Aaron’s federal income tax refund for 2014 was
       part of his net income for 2014—not an addition to it. A payor’s federal income tax refund is
       not always income for child support purposes. See In re Marriage of Ackerley, 333 Ill. App.
       3d at 391. In this case, it would duplicate Aaron’s child support obligation.
¶ 18       Aaron intentionally withheld income from his paycheck, paying every pay period more
       than he would eventually owe in taxes. This is no different than placing the same amount of
       money in a savings account that earns no interest or burying it in his backyard. In the absence
       of fraud, Alicia is not entitled to any percentage of Aaron’s federal income tax return. Alicia
       also argues that the trial court found that Aaron “was gam[ing] the system” with respect to
       his withholding. This is 180 degrees from correct. The trial court explicitly found that Aaron
       was not gaming the system. The record is also clear that Aaron was not “hiding the ball”
       from Alicia. She had Aaron’s W-2 and federal tax return when she stipulated to his child
       support payments. To continue our analogy, Aaron receiving his 2014 federal income tax
       refund is identical to him withdrawing money from a zero interest savings account or digging
       it back out of a hole. Therefore, we affirm the trial court’s ruling on this issue.

¶ 19                         II. Medical Expenses Not Covered by Insurance
¶ 20       Alicia also argues the trial court erred in failing to reduce her obligation to pay the
       minors’ uninsured medical expenses. She claims that the disparity between the parties’ net
       incomes increased substantially since they initially agreed to split costs equally. In response,
       Aaron asserts that the parties have approximately equal income after factoring in his child
       support payments to Alicia.
¶ 21       We review the trial court’s ruling on this issue for an abuse of discretion. In re Marriage
       of Logston, 103 Ill. 2d 266, 287 (1984). Abuse of discretion only “occurs where no
       reasonable man would take the view adopted by the trial court. [Citation.]” In re Marriage of
       Carpenter, 286 Ill. App. 3d 969, 973 (1997). Based on the record before us, we cannot say
       the trial court abused its discretion.
¶ 22       In claiming there is a substantial disparity in their incomes, Alicia compared the parties’
       gross incomes and emphasized the increase in Aaron’s income since the time of their original
       agreement. Nowhere in her argument on this point, however, does Alicia disclose a
       straightforward account of her own income, which includes child support payments she
       receives from Aaron. Comparing the parties’ gross incomes without factoring in tax rates,
       child support, and other expenses does not establish that the trial court abused its discretion.
       It was Alicia’s burden to show an abuse of discretion by the trial court. She failed to do so.
       We are not going to scour the record for support for her argument. New v. Pace Suburban Bus
       Service, 398 Ill. App. 3d 371, 384 (2010). Accordingly, we affirm the trial court’s judgment
       on this issue.


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¶ 23                                       CONCLUSION
¶ 24      For the foregoing reasons, we affirm the judgment of the circuit court of Knox County.

¶ 25      Affirmed.

¶ 26       JUSTICE CARTER, specially concurring.
¶ 27       I concur with the majority’s opinion but write separately to further address Alicia’s
       argument that a tax refund should always be considered additional income for child support
       purposes. Whether the overwithheld portion of a person’s tax return should be considered
       additional income when determining a child support obligation depends on the particular
       circumstances of each case. See In re Marriage of Blume, 2016 IL App (3d) 140276, ¶¶ 38-47
       (holding that it was inappropriate to consider the maintenance-receiving spouse’s tax return,
       which consisted of overwithholdings and certain tax credits, as additional income for the
       purpose of determining her gross income to calculate her maintenance award); In re
       Marriage of Ackerley, 333 Ill. App. 3d 382 (examining the details of the support-paying
       parent’s tax return when determining whether his tax refund should be considered additional
       income when calculating his child support obligation); In re Marriage of Pylawka, 277 Ill.
       App. 3d 728 (1996) (providing that when an obligor parent has an overwithholding of
       income taxes deducted from his pay, thereby overpaying his income tax, the disparity that
       exists between the amount of withheld taxes and the amount of taxes actually paid should be
       added back into his net income for the purpose of determining his child support obligation).
¶ 28       When calculating child support based on “net income” in many circumstances it would
       be proper to add the amount overwithheld to the amount of the person’s take-home pay in
       order to determine that person’s true “net income.” See Blume, 2016 IL App (3d) 140276,
       ¶ 39. However, in this case, child support was not calculated based on Aaron’s take-home
       pay or a calculated amount of net income on the record during the hearing, but on a
       stipulation that the parties made, with Alicia having copies of Aaron’s applicable W-2 and
       federal income tax return. Alicia having Aaron’s W-2 and tax return provided her with
       sufficient information to determine Aaron’s “net income” prior to making a stipulation to the
       amount of child support. Thus, when the trial court noted the parties had agreed to an
       increase in child support, he knew or assumed the amount was properly calculated, especially
       since there was no indication by the parties that the stipulated amount was a deviation from
       the statutory support guidelines. See 750 ILCS 5/505(a)(2) (West 2014) (providing the
       statutory support guidelines are to be applied unless the trial court finds a deviation is
       appropriate). That was obviously the reason the trial court noted the overwithholding “did not
       affect the current support computation” and Aaron was not gaming the system. Therefore, to
       take 28% of the total refund would, in essence, count a portion of Aaron’s net income twice.
       To allow Alicia to receive a portion of Aaron’s tax refund, despite her prior stipulation to the
       amount of child support, would also allow her to make an improper retroactive modification
       to the amount of Aaron’s child support obligation.




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