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                                   Appellate Court                           Date: 2019.07.10
                                                                             10:51:20 -05'00'




                  In re Marriage of Rushing, 2018 IL App (5th) 170146



Appellate Court        In re MARRIAGE OF EMILY R. RUSHING, n/k/a Emily R. Moore,
Caption                Petitioner-Appellee, and JAMES S. RUSHING, Respondent-
                       Appellant.



District & No.         Fifth District
                       Docket No. 5-17-0146



Filed                  November 30, 2018



Decision Under         Appeal from the Circuit Court of Marion County, No. 08-D-48; the
Review                 Hon. Ericka A. Sanders, Judge, presiding.



Judgment               Affirmed in part and vacated in part.


Counsel on             Curtis W. Martin, of Shaw & Martin, of Mt. Vernon, for appellant.
Appeal
                       Cheryl A. Powell, of Mt. Vernon, for appellee.



Panel                  JUSTICE Goldenhersh delivered the judgment of the court, with
                       opinion.
                       Justice Cates concurred in the judgment and opinion.
                       Justice Overstreet dissented, with opinion.
                                             OPINION

¶1       Respondent, James S. Rushing, appeals from an order of the circuit court of Marion
     County modifying the amount of child support to be paid to petitioner, Emily R. Rushing,
     n/k/a Emily R. Moore. The trial court took into consideration the income of James’s current
     wife, Jamie Rushing, to establish the amount of child support to be paid to Emily pursuant to
     section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750
     ILCS 5/505(a) (West 2014)). The court’s order also provided that, in order for the child
     support award to be reduced and to rely solely on James’s income, James and Jamie had to be
     physically separated, in the context of their legal separation. The issues raised in this appeal
     are (1) whether the trial court erred in considering Jamie’s income in determining the child
     support obligation owed by James, (2) whether the trial court erred in considering the legal
     separation allegations set forth by James, proffered to the court after the conclusion of the
     hearing on Emily’s petition to modify child support, and (3) whether the trial court erred in
     ruling that James and Jamie must be physically separated for the court to consider only
     James’s income for child support purposes. For the reasons that follow, we affirm that
     portion of the circuit court’s award of $467 per month in child support, as well as the award
     of arrearage and payment thereof. We find, however, that the circuit court abused its
     discretion in considering the status of James and his wife, Jamie, subsequent to the hearing.
     We therefore vacate the findings of the trial court relating to the legal separation and award
     of the reduced amount of child support.

¶2                                       I. BACKGROUND
¶3       The parties married on August 12, 1995. Two children were born to the parties during the
     marriage. The trial court entered a judgment of dissolution on May 19, 2009, in which it
     awarded “sole care, custody[,] and education” of the two minor children to Emily, and
     ordered James to pay Emily $112 per week in child support.
¶4       At the time of the parties’ divorce, James was self-employed in the heating and cooling
     business, earning $400 per week. On July 1, 2010, the parties filed a stipulation in which they
     agreed that James’s “effort at self-employment” had failed and that he was currently
     employed by the City of Centralia, Illinois. The parties stipulated that the court should reduce
     James’s child support obligation to $200 per month. On that same day, the circuit court
     entered an agreed order reducing James’s child support payments to $200 per month.
¶5       On August 13, 2010, James’s attorney filed an “Order/Notice to Withhold Income for
     Child Support” that alleged that James’s child support obligation was terminated. This notice
     bears the signature of only James’s attorney, and the record does not include a written order
     or docket entry establishing that the circuit court ordered the termination of James’s child
     support obligation. Emily subsequently admitted that she agreed to the termination of
     James’s child support obligation at that time.
¶6       On October 26, 2015, Emily filed the petition to modify child support that is the subject
     matter of the present appeal. As of that date, the parties had only one minor child, and James
     had married Jamie Rushing. In her petition to modify, Emily alleged there had been a
     substantial change in circumstances in that expenses for the minor child had increased,
     considering the fact that the child was older and involved in extracurricular activities. Emily


                                                -2-
       also alleged that the cost of living had increased, and it was likely James’s income had
       increased.
¶7         On November 20, 2015, James filed a response to Emily’s petition to modify in which he
       asserted that no child support was warranted. James alleged that their minor child wanted to
       reside with each parent “as close to one-half time as practicable such that neither party
       should pay the other child support.”
¶8         On July 11, 2016, just two weeks before the scheduled hearing date, James filed a
       petition for modification of the trial court’s May 11, 2009, visitation order. That order had
       awarded sole custody of the parties’ then minor children to Emily and established the
       visitation schedule with James. In his petition for modification, James sought to have his
       parenting time modified to conform to the parenting time schedule the parties had been
       following, to provide additional parenting time, and to allow him to claim the minor child as
       a dependent tax exemption in alternating years.
¶9         On July 26, 2016, a hearing was held on the respective petitions filed by Emily and
       James. Prior to the hearing, James filed a financial affidavit which allegedly reflected his
       income from his business, Rushing Investigations, a limited liability company, which
       specialized in performing background checks and investigations. The affidavit averred that
       James took a “Draw-as available,” but failed to provide any weekly, monthly, or annual
       salary. Essentially, James reported no income.
¶ 10       The affidavit filed by James also indicated his total monthly living expenses were
       $5788.17 per month, including a house payment of $1198.85 per month with taxes and
       insurance. Attached to the affidavit was a document that was represented to be a copy of
       James’s 2015 Individual Income Tax Return, Form 1040. It showed that Rushing
       Investigations incurred a net operating loss of over $2700.
¶ 11       James testified at the July 26, 2016, hearing that he had been operating his company,
       Rushing Investigations, for “about three years” and that he was in the process of developing
       clients. He presented an exhibit purporting to be a profit and loss statement that showed his
       business had generated $4345.41 in net income for the period between January 1, 2016, and
       June 30, 2016.
¶ 12       James stated that the last time he paid child support was in 2012. With regard to his
       day-to-day household expenses, James testified that he paid “half of what I can.” He stated
       that 2016 had been “a pretty good year” up to that point, but that he did not have enough
       income to pay all the expenses listed on his financial affidavit. James admitted that he could
       not pay the household expenses—such as the house mortgage, utilities, and taxes, as
       identified in his financial affidavit—and that his wife, Jamie, helped with paying those
       expenses. He acknowledged that he and Jamie had joint checking and savings accounts, but
       he did not know how much money was in either account. James further testified that
       sometimes he writes the checks, and sometime his wife does. He stated he had “no idea”
       what his wife, Jamie, made in a year. James further testified that he owed approximately
       $8500 on credit cards, and that he paid the debt through his business.
¶ 13       The Individual Income Tax Return, Form 1040, attached to the affidavit showed that
       James and Jamie filed a joint tax return in 2015, but the return attached to the affidavit
       included only income tax information for James. Upon questioning, James admitted that the
       tax return was not the actual tax return that he and Jamie had filed with the Internal Revenue
       Service (IRS). The income portion of the tax return showed negative numbers in the income

                                                  -3-
       section of the return. James testified that he did not know what those numbers represented, as
       his wife had prepared their tax return, and he was not sure what expenses had been listed for
       his business. The return showed that his business had a net operating loss in 2015. Overall,
       the specifics regarding the financial resources available to James were not clearly
       ascertainable through his testimony.
¶ 14       With respect to child support, James testified that he would like to have his daughter
       “half the time *** [t]hat way [he could] pay for anything she needs.”
¶ 15       Emily’s counsel also called Jamie Rushing as a witness at the hearing held on July 26,
       2016. Jamie testified that she purchased the house they were living in prior to their marriage
       and that she lived in the house with James and two of her children. Jamie explained that
       James moved into her house near the end of 2013, prior to their marriage, on January 2,
       2014. After they were married, James adopted her son. Emily’s counsel sought to elicit
       testimony from Jamie regarding James’s current living situation and the financial resources
       available to him. When Emily sought to introduce evidence showing that James benefitted
       from Jamie’s income with respect to payment of the monthly expenses James had claimed in
       his affidavit, James’s attorney objected. James’s counsel claimed this testimony regarding
       Jamie’s income was irrelevant to the issue of James’s child support obligation. The trial court
       allowed the testimony regarding Jamie’s income, but gave the parties additional time to
       present case law as to what weight should be given to this testimony and took the objection
       under advisement.
¶ 16       Thereafter, Jamie testified that she was self-employed as an infertility consultant. Simply
       put, she helps people who cannot have children find egg donors and surrogate mothers. She
       testified that her income from her business varied from year to year and that she did not
       know “off the top of [her] head” how much she usually made in any given year. She
       concluded that she made less than $100,000 per year. Both parties questioned Jamie about
       the expenses that James had listed on his financial affidavit. Jamie testified that some of the
       expenses listed by James were household expenses for James, herself, and her two children,
       including the $1198.85 monthly expense listed for their house payment, plus taxes and
       insurance. Jamie also testified that the expenses listed on James’s financial affidavit of $350
       per month in utilities and $1100 per month for groceries were expenses for everyone in their
       household.
¶ 17       When asked about the 2015 tax return information attached to James’s affidavit, Jamie
       indicated she had redacted certain provisions, as she did not believe information about her
       income was relevant. James’s counsel had concurred in the redaction, but evidently did not
       alert Emily’s counsel that the 2015 tax return document had been redacted. Consequently, at
       the time of the hearing, there was very little information available to Emily’s counsel
       regarding Jamie’s income and her contribution to household expenses.
¶ 18       During Emily’s testimony, her attorney asked her about upcoming expenses for their
       child’s extracurricular activities. Before Emily completed her testimony, however, the court
       intervened and determined that this line of questioning was irrelevant. The court stated that it
       was going to apply the child support guidelines because Emily had not pleaded a request to
       deviate from the guidelines, and the court suggested that its application of the guidelines was
       “simply a matter of math.”



                                                  -4-
¶ 19       On August 17, 2016, the circuit court entered an order granting James’s motion to modify
       his visitation schedule “to align with the manner in which [James] has been visiting with his
       daughter for several years.” This portion of the circuit court’s order is not at issue on appeal.
¶ 20       With respect to child support, the circuit court ruled that “the income of [James’s] spouse
       is relevant to [its] determination of child support.” The court, therefore, ordered James to
       submit “the joint tax return, without redaction, that was offered as an exhibit during the
       hearing as well as an amended financial affidavit.” The tax return and amended affidavit
       were to be submitted within 14 days of the court’s order.
¶ 21       On September 1, 2016, rather than submitting the 2015 tax return, as ordered by the
       court, James filed a motion requesting the circuit court to reconsider its decision. On October
       24, 2016, the circuit court denied the motion but clarified the basis of its ruling as follows:
               “[James], albeit by agreement, has not paid support since 2010, despite employment
               and an ability to pay. His income currently comes from self-employment which he
               attests is minimal. It is clear that his lifestyle does not align with a pauper’s income,
               however.”
       Once again, the trial court also ordered James to submit his amended financial affidavit and
       unredacted joint income tax return within 14 days.
¶ 22       James then filed a motion to certify the question of whether a court may consider the
       income of a current spouse in determining child support and asked for a stay pending the
       appeal. On January 4, 2017, the trial court denied James’s motion to certify the question.
¶ 23       On January 20, 2017, James filed a second motion to reconsider and reopen proofs,
       seeking to reopen the proof from the July 26, 2016, hearing. In support of this request, James
       attached an affidavit setting out additional evidence that he wanted to present. James attested
       in his affidavit that he and Jamie had not purchased any real estate together since they
       married on January 2, 2014. He claimed that the home in which they reside is owned solely
       by Jamie. James further claimed that he and Jamie legally separated on December 27, 2016.
       He further asserted, contrary to his testimony given during the hearing in July 2016, that he
       and Jamie did not maintain joint financial accounts of any type.
¶ 24       James also submitted tax returns that showed his gross business receipts or gross income
       for the years 2008-2016 as follows:
                    “2008:         $15,620.00
                    2009:          $23,109.00
                    2010:          $ 5,426.00
                    2011:          $ 6,344.00
                    2012:          $ 9,836.00
                    2013:          $15,821.00
                    2014:          $ 9,500.00
                    2015:          $14,000.00
                    2016:          $17,250.00”
¶ 25       In this new affidavit, James attested that he sold his home in 2014, which netted him
       $32,000 in proceeds, and that he had been using those proceeds to operate his business in an
       attempt to make it profitable. He testified that he had “no other source of income.” James



                                                   -5-
       also stated that he did not have access to his and Jamie’s joint 2015 federal income tax return,
       as “[i]t is in Jamie’s possession.”
¶ 26        In a docket entry dated January 25, 2017, the trial court denied James’s second request to
       reconsider, but granted his request to reopen the proofs, in part. The court again ordered
       James to “supply the tax return that he filed in 2015, which includes the income information
       of his spouse.” The court also ordered James to provide “a financial statement that reflects
       his current financial situation and data.”
¶ 27        On March 20, 2017, in compliance with the circuit court’s January 25, 2017, docket
       entry, and pursuant to a protective order entered on February 15, 2017, James filed under seal
       the two amended financial affidavits ordered by the court and filed a “tax return transcript”
       obtained from the IRS that reflected the information appearing on James’s and Jamie’s 2015
       unredacted joint tax return. This 2015 Internal Revenue Service Tax Return Transcript for the
       tax period ending on December 31, 2015, listed gross receipts for Jamie’s business at
       $370,934.00, and net gross receipts at $351,824.00. The transcript listed James and Jamie’s
       tax filing status as “Married Filing Jointly.”
¶ 28        In addition to filing the financial affidavits and the tax return information, James’s
       attorney also submitted a proposed child support calculation sheet that reflected two different
       calculations: one was based upon the combined net incomes of James and Jamie, and one
       based on James’s net income alone. The child support calculation sheet indicated that James
       and Jamie’s combined net incomes equaled $2336 per month, while James’s net income
       alone was $848 per month. The calculation sheet showed that 20% of their combined net
       incomes equaled $467 per month and that 20% of James’s net income alone was $170 per
       month.
¶ 29        On March 20, 2017, the trial court entered its order determining child support payments,
       including the arrearage. The court found that James and his wife pooled their resources, such
       that James “was able to have a home and minimal household expenses and benefits of a
       healthy income while he started a business, earned his own income, albeit minimal, and paid
       no child support since 2010.” The circuit court accepted the calculations submitted by
       counsel for James, and entered an order establishing child support at $467 per month,
       retroactive to October 26, 2015, the date on which Emily filed her petition to modify child
       support. The trial court ordered James to pay the arrearage at a rate of $100 per month, and
       ordered that as long as back child support was owed, James was not allowed to claim the
       minor child as a dependent. Once delinquent support was paid in full, the trial court ordered
       the parties to “alternate the years in which each claims the minor for tax purposes.”
¶ 30        The trial court further noted that in James’s most recently updated affidavit, he “claims to
       be ‘legally separated’ from his current spouse.” The court accepted this attestation as true but
       cautioned that the “phrase ‘legal separation’ ” means a “physical and legal separation.” The
       trial court repeated in its order the statement made by James that “he and his current wife are
       not living together and, thus, he is not benefitting from her resources, to include housing and
       income.” The court went on to find that in the event James and his wife no longer “reside
       with one another,” then the amount of child support James owed would be reduced to $170
       per month. James filed a timely notice of appeal of the circuit court’s child support order.




                                                   -6-
¶ 31                                            II. ANALYSIS
¶ 32                                      A. Current Wife’s Income
¶ 33        The first issue on appeal is whether the circuit court improperly calculated child support
       by combining James and Jamie’s separate net incomes and applying the statutory guidelines
       to that total amount to arrive at the child support figure due. Preliminarily, it should be noted
       that the trial court accepted the calculations made by James’s counsel, and Emily has not
       contested those calculations. The issue is, rather, the basis of the calculation. James insists
       that his current wife’s financial resources should not be considered in determining his child
       support obligation and asks us to reverse the trial court’s order with direction that his child
       support obligation be established at $170 per month based solely upon his income. We are
       not persuaded by James’s arguments and believe the circuit court properly considered
       Jamie’s net income for purposes of calculating child support.
¶ 34        It is well settled that modification of child support rests within the sound discretion of the
       trial court, and its decision will not be disturbed absent an abuse of that discretion. In re
       Marriage of Bussey, 108 Ill. 2d 286, 296 (1985). Section 510(a) of the Marriage Act covers
       modifications of child support payments, providing that support “may be modified only”
       upon “a showing of a substantial change in circumstances.” 750 ILCS 5/510(a)(1) (West
       2016). The burden of demonstrating a substantial change in circumstances is on the party
       seeking the modification. In re Marriage of Lyons, 155 Ill. App. 3d 300, 304-05 (1987). To
       establish the change necessary to warrant an increase in support, a petitioner must show that
       the child’s needs and the noncustodial spouse’s ability to pay have increased. In re Marriage
       of Adams, 92 Ill. App. 3d 797, 803 (1981). Once a determination is made that modification is
       warranted, the court should consider the factors set forth in section 505(a) of the Act. People
       ex rel. Hines v. Hines, 236 Ill. App. 3d 739, 745 (1992). Support should be determined by
       accommodating the needs of the children with the available means of the parties. In re
       Marriage of Riegel, 242 Ill. App. 3d 496, 498-99 (1993).
¶ 35        Traditionally, Illinois courts have held that “[t]he financial status of a current spouse may
       not be considered to ascertain the ability of a party to fulfill a child support obligation.” In re
       Marriage of Keown, 225 Ill. App. 3d 808, 813 (1992). This traditional rule is consistent with
       the specific statutory language of the child support guidelines and with the legislature’s
       mandate that “[n]either husband or wife shall be liable for the debts or liabilities of the other
       incurred before marriage, and *** they shall not be liable for the separate debts of each other,
       nor shall the wages, earnings or property of either, nor the rent or income of such property,
       be liable for the separate debts of the other.” 750 ILCS 65/5 (West 2014).
¶ 36        Nevertheless, there are instances where “courts have found that equitable principles
       require the consideration of a new spouse’s income.” In re Marriage of Drysch, 314 Ill. App.
       3d 640, 646 (2000). For example, it is appropriate to consider the financial status of a current
       spouse in order “to determine whether the payment of child support would endanger the
       ability of the support-paying party and that party’s current spouse to meet their needs.” In re
       Marriage of Keown, 225 Ill. App. 3d at 813.
¶ 37        Likewise, it is appropriate for the trial court to consider the financial resources of a
       noncustodial father’s new wife where her resources have been commingled with those of the
       noncustodial father. In re Marriage of Baptist, 232 Ill. App. 3d 906, 920 (1992). Courts also
       have the authority to compel parties to pay child support at a level commensurate with their
       earning potential. In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009).

                                                    -7-
¶ 38       In the present case, at the time the circuit court entered its order modifying James’s child
       support obligation, section 505(a)(1) of the Marriage Act provided that in cases involving
       one child, the minimum amount of support that the court should award is 20% of the
       “Supporting Party’s Net Income.” 750 ILCS 5/505(a)(1) (West 2014). In proceedings in
       which a court must determine the amount of a parent’s child support obligation, the separate
       income of a spouse can be relevant to the extent that the spouse’s income frees up the
       parent’s income so that the parent can pay more of his or her own income for the support of
       the child. Specifically, section 505(a)(2)(b) authorized the circuit court to deviate from the
       guidelines after considering, among other things, the parents’ ”financial resources and
       needs.” 750 ILCS 5/505(a)(2)(b) (West 2016). The legislature’s use of the term “resources”
       in section 505(a)(2)(b) indicated that the legislature intended to allow the court to consider all
       the money or property to which the supporting parent had access, including a spouse’s
       income, in determining whether to deviate from the minimum guidelines. See, e.g., In re
       Marriage of Drysch, 314 Ill. App. 3d at 644-45 (discussing the legislature’s use of the term
       “resources” in section 513 of the Marriage Act “rather than a more narrow term, such as
       ‘income’ or ‘salary’ ”).
¶ 39       In this case, Emily agreed to the termination of child support in August 2010, in order to
       allow James the opportunity to get his investigation business up and running. Some five
       years later, Emily filed a petition for modification, asking that child support be reinstated. As
       part of the proceedings, James first filed a financial affidavit, showing his total monthly
       living expenses were $5788.17. The affidavit further provided that he took a “draw,” but only
       “as available.” James attached to his affidavit a copy of his 2015 individual tax return, which
       indicated his business incurred a net operating loss in 2015. However, based on the fact
       James swore that his living expenses amounted to nearly $6000 per month, it was clear that
       he had some additional source of income or that he was, at least, the beneficiary of additional
       income, such as that of his wife, Jamie. During his testimony at the hearing in July, 2016,
       James revealed that he had sold his house in 2014 and made a $32,000 profit. None of those
       proceeds were used to pay support for his children. But even adding this amount into the
       financial equation presented by James’s affidavit, the amount was too low to allow James to
       have the type of lifestyle he was living.
¶ 40       During the July 26, 2016, hearing, James admitted that he and Jamie had a joint checking
       and joint savings account. He did not know what the balance was in either account.
       Additionally, James inflated his living expenses by including expenses for all of the members
       of the household, not just his own. James also submitted a document that purported to be his
       2015 tax return. At the time he disclosed the document, James did not indicate that the return
       had been redacted. Therefore, James complied with discovery in a manner that did not allow
       Emily and her counsel to have all the facts needed at the time of the hearing. This lack of
       information necessitated the trial court reserving its final ruling until additional financial
       information was produced along with the unredacted 2015 tax return.
¶ 41       Subsequently, rather than producing the 2015 unredacted tax return, James filed motions
       that delayed the final ruling in this matter approximately seven months. During that time,
       James filed additional affidavits and convinced the court to partially reopen the proofs. At no
       time during this seven-month period did the circuit court set a hearing to test the veracity of
       the affidavits James filed.



                                                   -8-
¶ 42       Jamie’s testimony in July, 2016, was also less than forthcoming. Nevertheless, Jamie
       admitted that she and James combined their funds. Jamie testified during the hearing that she
       was not sure how much she earned in her business as an infertility consultant, although it was
       less than $100,000 per year. After the court ordered James to produce the unredacted tax
       return in its order of August 17, 2016, James attempted to block production of this 2015
       unredacted tax return, and for good reason. Once produced, the 2015 tax return revealed that
       Jamie’s gross income as an infertility consultant exceeded $300,000, although the net profit,
       after deductions for expenses, generated less. As previously noted, James submitted income
       tax returns for the operation of his business from 2008 through 2016. His gross receipts
       during these years ranged only from $5400 to $23,000. Thus, the record shows that James’s
       spouse, Jamie, had a significant income that paid for much of the household expenses. This
       additional income was reflected by the disparity in the calculations submitted by James’s
       attorney—the same calculations accepted as true by the trial court.
¶ 43       In its order finding Jamie’s income relevant for consideration, the trial court specifically
       stated:
               “Because of [James’s] spouse’s income, [James] was able to have a home and
               minimal household expenses and the benefits of a healthy income while he started a
               business, earned his own income, albeit minimal, and paid no child support since
               2010. Under these circumstances, [James] had ample resources with which to pay
               support, yet did not. The court will consider the salary of [James’s] current spouse in
               its calculations of child support while he was living with her and not legally
               separated.”
¶ 44       The trial court used the base pay child support calculations submitted by James’s attorney
       in ordering child support in the amount of $467 per month from the date Emily filed the
       petition to modify to the date that James and his current wife claimed they were legally
       separated. The $467 award represented 20% of the parties’ combined net income, adopted
       from the calculations made by James’s attorney. We cannot say that the trial court abused its
       discretion in awarding Emily the sum of $467 per month, payable from October 25, 2015.
       Further, we find the trial court did not abuse its discretion in requiring James to pay the
       arrearage at the rate of $100 per month and prohibiting James from claiming the minor child
       as a dependent as long as back child support was owed. Moreover, we agree with the court’s
       order that once the delinquent child support was paid in full, the parties would be allowed to
       alternate the years in which each claims the minor child for tax purposes.

¶ 45                                       B. Physical Separation
¶ 46       The two remaining issues raised in this appeal relate to the trial court’s orders regarding
       the legal separation of James and Jamie Rushing, and the amount of child support to be paid
       in the future in the event a court determines that James and Jamie are legally, and physically,
       separated. We believe the trial court abused its discretion when it made findings regarding
       the amount of child support to be paid in the future, depending on whether a court
       determined that James and Jamie were legally separated. Specifically, we find the court
       abused its discretion when it entered the order reducing James’s child support order to $170
       per month after he and Jamie no longer reside together.
¶ 47       The record reflects that James and his wife, Jamie, were less than forthcoming throughout
       these proceedings. James maintained he had minimal income, but his lifestyle suggests the

                                                  -9-
       opposite. He profited $32,000 from the sale of his home but did not use any of the money for
       child support. The testimony at the July 26, 2016, hearing clearly revealed that James and his
       wife combined their resources. They filed their taxes jointly and maintained joint checking
       and savings accounts. While bank accounts alone are not determinative, it was the trial court
       that was in best position to rule on the credibility of the witnesses and the evidence produced
       during the hearing.
¶ 48       In our view, the trial court abused its discretion when it allowed James to file affidavit
       after affidavit, each alleging new information. The court allowed James to partially reopen
       the proofs when James alleged he and his wife were legally separated. The court file,
       however, reveals that James and Jamie continued to live at the same address. Based upon
       these affidavits alone, and without the input of Emily and without Emily being allowed to
       test the validity of the affidavits through a duly noticed hearing, the trial court accepted the
       averments by James as true. In our view, this was an abuse of discretion. Emily should have
       been allowed her day in court. This is especially true in light of the credibility issues raised
       by the multiple affidavits and the redacted 2015 tax return. Because the trial court accepted
       the attestations regarding legal separation, the court then reduced the amount of child support
       due, depending on certain findings that would be made in an undefined Jefferson County
       divorce matter.
¶ 49       The order issued by the trial court reducing child support was an attempt to streamline the
       process, which we find admirable, especially in light of the delay occasioned by the failure to
       produce accurate financial information in a timely manner. But the August 17, 2016, order of
       the court to consider the combined income of James and Jamie was based on the evidence
       produced during the hearing on July 26, 2016. In the event James had a substantial change in
       circumstances that warranted a reduction in his child support, the Marriage Act gave him a
       path to follow, and would have allowed him to file a motion for reduction of his child
       support. Instead, the trial court reduced the child support without affording Emily the
       opportunity to be heard, on a pleading that had not yet been filed. In our view, this was an
       abuse of discretion, and that portion of the trial court’s order reducing the child support is
       vacated. Should James experience a substantial change of circumstances and require a
       reduction in child support, then his counsel can advise him of the best means by which to
       achieve that goal. Any consideration of the legal status of the parties subsequent to the July
       26, 2016, hearing is irrelevant. To the extent the court made any findings related to that issue,
       those findings and the order of the circuit court are vacated.

¶ 50                                       III. CONCLUSION
¶ 51       We find the trial court was correct when it considered the joint income of James and
       Jamie in assessing child support in the amount of $467 per month, payable back to October
       26, 2015. Further, the circuit court did not abuse its discretion in ordering that the arrearage
       be paid in the amount of $100 per month and in prohibiting James from claiming the minor
       child as a dependent as long as back child support was owed. Moreover, we agree with the
       court’s order that once the delinquent child support was paid in full, the parties would be
       allowed to alternate the years in which each claims the minor child for tax purposes.
¶ 52       However, we find the circuit court’s reduction of child support to the amount of $170 per
       month, based upon some finding by another court at some future date, to have been an abuse


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       of discretion. We therefore vacate the trial court’s order regarding the status of the parties
       subsequent to July 26, 2016, and vacate any reduction in the child support award.
¶ 53       For the foregoing reasons, the judgment of the circuit court of Marion County is affirmed
       in part and vacated in part.

¶ 54      Affirmed in part and vacated in part.

¶ 55       JUSTICE OVERSTREET, dissenting:
¶ 56       I respectfully dissent. This appeal stems from a petition to modify child support. The
       issue we must address concerns to what extent the circuit court can consider the net income
       of the supporting parent’s spouse in determining the amount of child support the supporting
       parent must pay pursuant to the guidelines set out in section 505(a) of the Illinois Marriage
       and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a) (West 2014)). In
       applying these statutory guidelines, the circuit court combined James’s net income with
       Jamie’s net income and ordered James to pay 20% of that total amount. The plain language
       of the support guidelines, however, does not authorize this procedure for calculating a
       supporting parent’s support obligation. For that reason, I would reverse the circuit court’s
       judgment.
¶ 57       The majority correctly notes that Illinois courts have held that
               “[t]he financial status of a current spouse may not be considered to ascertain the
               ability of a party to fulfill a child support obligation, but it may be equitably
               considered to determine whether the payment of child support would endanger the
               ability of the support-paying party and that party’s current spouse to meet their
               needs.” In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (1992).
       This traditional rule is consistent with the specific statutory language of the child support
       guidelines and with the legislature’s mandate that
               “[n]either husband or wife shall be liable for the debts or liabilities of the other
               incurred before marriage, and *** they shall not be liable for the separate debts of
               each other, nor shall the wages, earnings or property of either, nor the rent or income
               of such property, be liable for the separate debts of the other.” 750 ILCS 65/5 (West
               2014).
¶ 58       Under the Marriage Act, parents have an obligation to support their children financially.
       In re Marriage of Duerr, 250 Ill. App. 3d 232, 238 (1993). However, a spouse of a
       support-paying parent has no legal obligation to support his or her stepchildren financially.
       See In re Marriage of Omelson, 112 Ill. App. 3d 725, 734 (1983). In fact, a stepparent is not
       usually a party to proceedings involving the establishment or modification of child support
       for his or her stepchildren.
¶ 59       Here, at the time the circuit court entered its order modifying James’s child support
       obligation, section 505(a)(1) of the Marriage Act provided that, in cases involving one child,
       the minimum amount of support that the court should award is 20% of the “Supporting
       Party’s Net Income.” 750 ILCS 5/505(a)(1) (West 2014). Importantly, the legislature did not
       define this statutory guideline with any language that would allow the circuit court to award
       20% of the supporting party’s spouse’s net income. Here, the circuit court’s order, which



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       combined James and Jamie’s separate net incomes and ordered James to pay child support at
       20% of that amount, was improper under the statutory language.
¶ 60       In proceedings in which a court must determine the amount of a parent’s child support
       obligation, the separate income of a spouse can be relevant to the extent that the spouse’s
       income frees up the parent’s income so that the parent can pay more of his or her own income
       for the support of the child. Specifically, section 505(a)(2)(b) authorized the circuit court to
       deviate from the guidelines after considering, among other things, the parents’ ”financial
       resources and needs.” 750 ILCS 5/505(a)(2)(b) (West 2016). The legislature’s use of the term
       “resources” in section 505(a)(2)(b) indicated that the legislature intended to allow the court
       to consider all the money or property to which the supporting parent had access, including a
       spouse’s income, in determining whether to deviate from the minimum guidelines. See, e.g.,
       In re Marriage of Drysch, 314 Ill. App. 3d 640, 644-45 (2000) (discussing the legislature’s
       use of the term “resources” in section 513 of the Marriage Act “rather than a more narrow
       term, such as ‘income’ or ‘salary’ ”).
¶ 61       In such circumstances, however, the inquiry is not whether the new spouse’s income can
       be used to help pay the support obligation; rather, as I outlined above, “a trial court can
       consider the parties’ assets and other elements of financial resources, even the financial status
       of a current spouse, to determine whether payment of support would endanger the ability of
       the support-paying party and that party’s current spouse to meet their needs.” (Emphasis
       added.) In re Marriage of Deike, 381 Ill. App. 3d 620, 627 (2008).
¶ 62       Therefore, in the present case, evidence that James enjoyed Jamie’s income for purposes
       of meeting his daily living and household expenses could have been relevant in determining
       whether the court should deviate from the statutory guidelines and order James to pay more
       than 20% of his net income for the support of his child. Here, however, the court did not
       consider Jamie’s income as a basis for deviating from the statutory guidelines. Instead, the
       court improperly applied the statutory guidelines to James and Jamie’s separate incomes
       combined, thereby effectively requiring Jamie to pay 20% of her net income toward the
       support of a stepchild that she had no legal obligation to support. Nothing within the statutory
       language of section 505(a) allowed the court to apply the support guidelines to the net
       income of a stepparent under these circumstances.
¶ 63       Also, I note that section 502(a)(2) provided that, if the court deviates from the guidelines,
       the court must state the amount of support that would have been required under the
       guidelines, if determinable, and set forth the reasons for the variance from the guidelines. 750
       ILCS 5/505(a)(2) (West 2016). Here, the circuit court did not articulate a basis to deviate
       from the guidelines, although evidence of Jamie’s finances might have provided a basis for it
       to do so had it considered the evidence in that light. Instead of considering a deviation from
       the guidelines, during the hearing, the court noted that neither party had requested the court
       to deviate from the statutory guidelines in their pleadings; therefore, the court concluded that
       the amount of support James must pay would be calculated by simply applying the
       guidelines.
¶ 64       In reaching my conclusion, I am persuaded by the court’s reasoning set out in In re
       Parentage of M.M., 2015 IL App (2d) 140772. In that case, the court explained the relevance
       of a spouse’s income in a proceeding involving the allocation of a child’s educational
       expenses under section 513 of the Marriage Act. 750 ILCS 5/513 (West 2012). The court’s


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       analysis in M.M. applies equally to the application of the statutory guidelines for child
       support in section 505(a) of the Marriage Act.
¶ 65       In M.M., the trial court had to allocate a child’s college expenses between the father and
       the mother of the child. M.M., 2015 IL App (2d) 140772, ¶ 1. The mother did not have any
       income, but her husband was employed as an engineer and paid all of their monthly
       expenses. Id. ¶ 10. In considering the parents’ incomes for purposes of allocating colleges
       expenses, the trial court imputed the income of the mother’s husband to the mother,
       suggesting that the husband’s income was available to the mother for purposes of
       contributing to the child’s college expenses. Id. ¶¶ 24-25. The M.M. appellate court held that
       this was in error. Id. ¶ 29.
¶ 66       The statutory provision at issue in M.M. authorized the court to “award sums of money
       out of the property and income of either or both parties ***, as equity may require, for the
       support of the child or children of the parties who have attained majority.” 750 ILCS
       5/513(a) (West 2012). Similar to section 505(a)(2)(b), section 513(a) of the Marriage Act
       provided that, when awarding educational expenses, the relevant factors the court could
       consider included “the financial resources of both parents.” M.M., 2015 IL App (2d) 140772,
       ¶ 32.
¶ 67       The M.M. court held that, under this statutory language, the court could consider a
       spouse’s income as part of the mother’s “financial resources,” but only “to the extent that
       [the spouse’s] assistance frees up [the mother’s] own assets for contribution.” Id. ¶ 33. The
       M.M. court held that the lower court should not have used the spouse’s income “as the
       baseline for determining [the mother’s] contribution toward [the child’s] college expenses.”
       Id. ¶ 43. The court stated that, “[b]y doing so, the court effectively shifted the burden to [the
       spouse] to pay for [his stepchild’s] college expenses, something that he has no legal
       obligation to do.” Id.
¶ 68       This reasoning applies equally in the present case with respect to child support guidelines
       under section 505(a) of the Marriage Act. Here, the circuit court erred in combining James
       and Jamie’s separate net incomes in determining the baseline amount of James’s net income
       for purposes of calculating child support under the statutory guidelines. By doing so, the
       court effectively burdened Jamie with paying 20% of her net income to support a stepchild
       that she had no legal obligation to support. See id.
¶ 69       In combining James and Jamie’s separate net incomes for purposes of applying the
       statutory child support guidelines, the circuit court cited Drysch, 314 Ill. App. 3d at 646,
       where the court stated that “several reviewing courts have found that equitable principles
       require the consideration of a new spouse’s income.” However, Drysch does not support the
       circuit court’s application of the child support guidelines to a stepparent’s income.
¶ 70       In Drysch, the Second District held that the court could consider a spouse’s income as
       part of the supporting parent’s “financial resources” for purposes of section 513 of the
       Marriage Act. Id. at 644-45. In M.M., however, the Second District subsequently explained
       that, in Drysch, the court neglected to “explain exactly how a court may consider a new
       spouse’s income.” (Emphasis in original.) M.M., 2015 IL App (2d) 140772, ¶ 34 (discussing
       Drysch). The M.M. court explained that its holding in Drysch stood only for the proposition
       that the new spouse’s income was relevant to the extent that it paid monthly expenses and
       freed up the supporting parent’s income for assisting the child. Id. ¶¶ 33, 39 (discussing
       Drysch and Street v. Street, 325 Ill. App. 3d 108 (2001)); see also In re Marriage of

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       Cianchetti, 351 Ill. App. 3d 832, 835 (2004) (“[a]lthough [the mother’s] new husband is not
       obligated to pay for her children’s tuition, and his income should not be used to determine
       her ability to pay tuition, it is properly used to examine the extent to which her income can be
       freed through reliance on her husband for support”).
¶ 71       The majority cites In re Marriage of Baptist, 232 Ill. App. 3d 906, 920 (1992), as
       justification for applying undefined “equitable principles” to require James to pay 20% of
       Jamie’s income. That case, however, supports my conclusion that the circuit court improperly
       applied the child support guidelines by including a stepparent’s income in its calculation. In
       Baptist, the lower court awarded the mother child support in an amount greater than what
       was required by the support guidelines. The evidence in that case showed that the father’s
       income decreased when he transferred part of his business interests to his current spouse. Id.
       at 910. The father exchanged one-half interests in his businesses to his new spouse in
       exchange for one-half equity interest in his wife’s premarital home. Id. The father and his
       spouse shared joint financial accounts. Id. at 909.
¶ 72       In determining the amount of the father’s child support obligation, the circuit court
       indicated that it considered section 505’s guidelines, including “ ‘the financial resources’ ” of
       the parents. Id. at 911. The court, however, did not combine the income of the father and his
       spouse and apply the statutory guidelines to that amount. Instead, the court determined that
       20% of the father’s net income was $485 per month and ordered the father to pay $650 per
       month, an amount greater than what was required by the statutory guidelines. Id. at 911-12.
       On appeal, the father argued, among other things, that “the trial judge’s upward deviation
       from the mandated minimum support guidelines” was against “the great weight of the
       evidence.” Id. at 918. The court, however, disagreed and found that the circuit court did not
       error in deviating from the statutory guidelines. Id. at 919.
¶ 73       Importantly, nothing within the Baptist court’s decision with respect to its discussion of
       deviating from the statutory guidelines indicates that the court authorized an “equitable”
       procedure involving the combination of the husband’s and his spouse’s separate incomes and
       the award of child support based on a percentage of the combined incomes. Instead, the court
       specifically calculated the father’s net income and based its support award on a percentage of
       his income alone, albeit a percentage greater than the amount called for by the statutory
       guidelines.
¶ 74       In Baptist, the father argued on appeal that the lower court improperly “considered” his
       spouse’s income, and the wife actually agreed that the spouse’s income was “not directly
       relevant to the support determination.” Id. The court, however, noted that the father’s
       attorney called the wife as a witness, elicited some of her testimony about her earnings, and
       did not object to other questioning on this topic during the hearing. Id. The court, therefore,
       held that the father waived his argument that the court improperly “considered” this
       evidence. Id.
¶ 75       Also, with respect to relevancy, the Baptist court noted that the father’s spouse sought
       and was granted leave to intervene in the proceedings “to protect her own financial interests,
       which she conceded were commingled with [the father’s].” Id. at 920. The Baptist court,
       therefore, explained the evidence’s relevancy as follows:
               “Without testimony about [the new spouse’s] income and net worth, the trial judge
               could not determine *** what interests were [the spouse’s] and, therefore, not subject
               to consideration in determining [the father’s] child support obligation. The trial judge

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                had no alternative mechanism for determining [the father’s] financial resources than
                to also consider what financial resources [the spouse] claimed were hers.” (Emphasis
                added.) Id.
¶ 76       The Baptist court also observed, as I have noted above, that “a current spouse’s income
       can be equitably considered to determine whether the child support obligation would imperil
       the supporting parent and his or her spouse’s ability to meet their needs.” Id.
¶ 77       Here, the circuit court did not consider Jamie’s income merely to determine whether its
       child support order would impair James and Jamie’s ability to meet their needs. Instead, the
       court improperly combined Jamie’s net income with James’s net income and used that
       amount to calculate James’s support obligation under the statutory guidelines. Nothing within
       the Baptist decision sanctions this process for implementing the statutory guidelines. Instead,
       the Baptist court specifically stated that the spouse’s income was “not subject to
       consideration” in determining the support obligation of the parent. Id.
¶ 78       Furthermore, I note that, unlike the facts in Baptist¸ James was not a partner in Jamie’s
       infertility consultation business, and Jamie was not a partner in James’s investigation
       business. Jamie’s uncontroverted testimony was that James was not involved in her infertility
       consultation business in any capacity. Accordingly, the circuit court was not presented with a
       situation in which James and Jamie comingled their financial resources to the extent that the
       court could not separate their respective incomes.
¶ 79       As justification for applying “equitable principles,” the majority outlines the prehearing
       procedure leading up to the circuit court’s ruling, during which James and his attorney
       vigorously litigated this contested issue, implying that James and his attorney attempted to
       undermine the circuit court’s ability to make a proper child support award. I note that if
       James had engaged in any improper litigation tactics leading up to the circuit court’s findings
       with respect to net income, Emily could have requested sanctions pursuant to Illinois
       Supreme Court Rule 137 (eff. July 1, 2013). No such sanctions were requested, and the
       circuit court made no findings that James engaged in improper litigation tactics. The
       majority’s dissatisfaction in how James litigated his position in the lower court is not a
       proper consideration in reviewing the substance of the lower court’s child support
       determination under the language of the support guidelines.
¶ 80       In applying “equitable principles,” the majority also concludes that “[a]t no time during
       this seven-month period did the circuit court set a hearing to test the veracity of the affidavits
       James filed.” Supra ¶ 41. However, I question the relevancy of this observation. As the
       majority also correctly observes in paragraph 33 of its opinion, “the trial court accepted the
       calculations made by James’s counsel [with respect to his and Jamie’s net incomes], and
       Emily has not contested those calculations.” (Emphasis added.) Supra ¶ 33. The circuit court
       found that, as of August 31, 2016, James’s and Jamie’s combined net incomes equaled $2336
       per month, and the majority accepts this amount in affirming the circuit court’s child support
       award that was based, in part, on James’s financial affidavits.
¶ 81       As further justification for applying “equitable principles,” the majority also sua sponte
       questions Jamie’s credibility by characterizing her testimony as “less than forthcoming.”
       Again, I question the relevancy of this conclusion in light of the circuit court’s undisputed
       finding that the parties’ combined net income was $2336 per month. In addition, the circuit
       court never made any adverse finding with respect to Jamie’s credibility, and the record
       simply does not justify a sua sponte adverse credibility finding by the appellate court. The

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       majority states that the joint tax return showed that Jamie’s infertility consultation business
       generated over $300,000 in gross income “although the net profit, after deductions for
       expenses, generated less.” (Emphasis added.) Supra ¶ 42. I note that the joint tax return,
       specifically, showed that Jamie’s infertility business generated a net income of $32,247 in
       2015. Although irrelevant to the issue on appeal, I feel obligated to point out that the tax
       return corroborated Jamie’s testimony that her income from her business was less than
       $100,000 per year.
¶ 82       Finally, to the extent that the majority’s application of “equitable principles” or the circuit
       court’s order could be construed as imputing income to James on some other basis, this
       would also be improper without any findings supporting such a construction of the court’s
       order. See M.M., 2015 IL App (2d) 140772, ¶ 44. In In re Marriage of Sweet, 316 Ill. App. 3d
       101, 107 (2000), the court stated, “if a court finds that a party is not making a good-faith
       effort to earn sufficient income, the court may set or continue that party’s support obligation
       at a higher level appropriate to the party’s skills and experience.” In order to impute income
       to a party, the court must find that the party is voluntarily unemployed, is attempting to evade
       a support obligation, or has unreasonably failed to take advantage of an employment
       opportunity. In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009).
¶ 83       In the present case, the circuit court did not make any findings that James was voluntarily
       underemployed, was attempting to evade a support obligation, or had unreasonably failed to
       take advantage of any employment opportunity. Therefore, the circuit court made no findings
       that would justify imputing income to James under any of the circumstances set out in
       Gosney.
¶ 84       The majority begins the analysis portion of its opinion by stating that modification of
       child support is warranted upon a showing of a substantial change in circumstances (750
       ILCS 5/510(a)(1) (West 2016)) and that trial courts have wide latitude in determining
       whether a substantial change in circumstances has occurred. In re Marriage of Riegel, 242 Ill.
       App. 3d 496, 498-99 (1993). The majority then ends its analysis with the conclusion that the
       circuit court did not abuse its discretion.
¶ 85       In the present case, however, neither party contested the issue of whether there had been
       a substantial change in circumstances. The issue before us concerns the circuit court’s
       application of the statutory child support guidelines contained in section 505(a)(1) of the
       Marriage Act as it read at the time the circuit court entered its support order. 750 ILCS
       5/505(a)(1) (West 2014). Because there was no issue before the circuit court with respect to
       whether it should deviate from the guidelines, the matter before the court concerned only the
       application of the guidelines to the “supporting party’s net income.” Whether Jamie’s net
       income could be included in the court’s support calculation under the guidelines is a matter
       involving statutory interpretation and is based on the language of the statute; it is not a matter
       involving the exercise of the lower court’s discretion.
¶ 86       For the reasons I have outlined above, based on the language of the statute at issue, I
       would reverse the circuit court’s child support award and remand with directions for the
       circuit court to calculate James’s child support obligation under the guidelines based on a
       percentage of only James’s net income.




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