                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                In re Marriage of Carlson-Urbanczyk, 2013 IL App (3d) 120731




Appellate Court            In re MARRIAGE OF DAWN CARLSON-URBANCZYK, Petitioner-
Caption                    Appellant, and TOMASZ URBANCZYK, Respondent-Appellee.



District & No.             Third District
                           Docket No. 3-12-0731


Rule 23 Order filed        May 20, 2013
Motion to publish
allowed                    June 26, 2013
Opinion filed              June 26, 2013


Held                       The trial court did not abuse its discretion in reconsidering its child
(Note: This syllabus       support order and finally ordering respondent to pay 20% of his three
constitutes no part of     children’s daycare and extracurricular expenses in addition to his
the opinion of the court   statutory child support, resulting in a total 40% of his net income going
but has been prepared      to child support, especially when respondent’s failure to appeal that
by the Reporter of         decision indicated that he accepted the additional responsibility.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 10-D-28; the Hon.
Review                     Robert Baron, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Edward R. Jaquays, Martin Rudman, and Mark Ellis, all of Law Offices
Appeal                     of Edward R. Jaquays, of Joliet, for appellant.

                           Mikal J. Stole, of Reich, Jumbeck & Associates, LLP, of Joliet, for
                           appellee.


Panel                      JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                           Justices Carter and McDade concurred in the judgment and opinion.




                                            OPINION

¶1          The court entered an agreed judgment for dissolution of marriage on November 11, 2011,
        which granted mother sole custody of the parties’ three minor children and ordered father to
        pay child support in the statutory amount of 32% of his net income. The parties agreed the
        court should reserve determining whether the children’s daycare and extracurricular expenses
        should also be shared by father above the statutory amount of agreed child support.
¶2          Eventually, the court ordered father to pay 40% of daycare and extracurricular expenses
        in addition to the agreed child support calculated at the statutory amount of 32% of father’s
        net income. However, the court later reconsidered and reduced that amount to 20% of the
        additional daycare and extracurricular expenses. Mother appeals this reduction. We affirm
        the judgment of the circuit court.

¶3                                        BACKGROUND
¶4          Petitioner-appellant Dawn Carlson-Urbanczyk (mother) and respondent-appellee Tomasz
        Urbanczyk (father) filed separate petitions for dissolution of marriage in Will County case
        numbers 10-D-032 and 10-D-028, respectively, after 11 years of marriage. Due to the
        consolidation of both cases, the judgment of dissolution was entered in case No. 10-D-032,
        on November 9, 2011. At the time of the judgment of dissolution, mother was 32 years old
        and employed full-time at the Nalco Company, father was 38 years old and employed full-
        time with K-Five Construction Company, and the couple had three young children.
¶5          The judgment included a marital settlement agreement which awarded sole custody of
        the three minor children to mother and required father to pay child support in the amount of
        $1,280 monthly, calculated at 32% of his net income. At the time of the judgment of
        dissolution, the parties agreed the court should reserve ruling on whether father should also
        make contributions toward the payment of daycare and extracurricular expenses for the
        children until sometime after April 1, 2012, to allow father some time to improve his
        financial situation.

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¶6          On April 19, 2012, mother filed a “Motion to Set Daycare and Extracurricular
       Contribution.” The court held a hearing on this motion on May 23, 2012, and received copies
       of 2011 tax returns and income/expense affidavits, both dated May 23, 2012, from each of
       the parties at that time. Mother’s affidavit documented her total gross income for 2011 was
       $76,487. According to mother’s affidavit, excluding child support and net income received
       for rental properties, her net monthly income for May, 2012, was $4,392.1 Mother’s affidavit
       listed the monthly daycare expenses for the parties’ children to be $1,573 and monthly
       expenses for the children’s extra activities to be $281, for a monthly total of $1,854.
¶7          Father’s financial affidavit reflected his annual gross income for 2011 was $59,791 and
       net monthly income, after paying a monthly child support payment of $1,185, was $2,465.2
       Father’s affidavit showed that he paid $180 per month for the children’s activities during
       visits in addition to his own monthly expenses. He also reported he filed for bankruptcy after
       the entry of the judgment of dissolution.
¶8          At the close of this hearing, the court found that neither party disputed that the children’s
       extracurricular activities were appropriate and ordered father to pay 40% of the children’s
       daycare and extracurricular expenses without making additional findings. On June 21, 2012,
       father filed a “Motion to Reconsider and/or Reopen Proofs,” claiming the court failed to
       consider father’s ability to pay and improperly ordered him to pay 40% of the daycare and
       extracurricular expenses and deviated above the general statutory guidelines for support by
       so doing. In her response, mother claimed father could reduce his expenses by $350 each
       month by selling his motorcycle and cancelling his gym membership.
¶9          During the hearing on the motion to reconsider, held on July 31, 2012, father submitted
       an exhibit showing his monthly net income, including deductions for child support, to be
       $2,665. This exhibit documented, if father paid the additional 40% of daycare ($ 681.72), his
       monthly net income would be $1,983. This same exhibit calculated mother’s monthly net
       income, including child support, to be $7,979, and her monthly net income would be
       increased to $8,660, if father paid the additional 40% of daycare expenses.
¶ 10        Before ruling, the court observed mother’s income affidavit did not include calculations
       showing receipt of the statutory child support payments she received from father, or her
       reimbursements for mileage and other expenses from her employer. Consequently, after
       considering the respective amounts of monthly income for both father and mother, the judge
       reconsidered his previous ruling and reduced father’s additional payment of daycare and
       extracurricular expenses to 20%, retroactive to April 1, 2012. Accordingly, the court entered
       a written order on July 31, 2012, ordering that father pay the 20% contribution to combined

               1
                Mother’s affidavit also showed “other income” from commission payments averaging
       $1,766 monthly and a monthly car allowance from her employer in the amount of $540, for a total
       monthly net income of $6,698, “not including rents received for rental properties” or the child
       support payment she received from father in the amount of $1,185.
               2
                Father’s affidavit showed his rental property provided “other income” that averaged $199
       monthly and, although ordered to pay $1,280 for child support in the court order, father’s affidavit
       stated he was making monthly payments of $1,185.

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       daycare and extracurricular expenses.
¶ 11      Mother filed a timely notice of appeal challenging this ruling.

¶ 12                                         ANALYSIS
¶ 13        On appeal, mother challenges the trial court’s decision setting father’s contribution
       toward the payment of the children’s daycare and extracurricular costs at the rate of 20% of
       the total charges. Father contends that the trial court did not abuse its discretion by
       reconsidering and reducing its previous decision to pay 40% of these expenses.
¶ 14        The amount of the award 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
       Serna, 172 Ill. App. 3d 1051, 1054 (1988). It is well established that “[s]ection 505 of the
       Act creates a rebuttable presumption the specified percentage of a noncustodial parent’s
       income represents an appropriate child support award.” In re Marriage of Demattia, 302 Ill.
       App. 3d 390, 393 (1999) (citing In re Marriage of Charles, 284 Ill. App. 3d 339, 346-47
       (1996)). In this case, the judgment of dissolution set the child support by agreement and in
       the amount specified by statute for three children, specifically 32% of father’s net income.
¶ 15        The Serna court held, in addition to the statutory child support amount under section 505
       of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, ¶ 505
       (now 750 ILCS 5/505 (West 2010))), the trial court has discretion to also order the
       noncustodial parent to pay half of the daycare expenses and other reasonable expenses.
       Serna, 172 Ill. App. 3d at 1054. However, we conclude any amount above the agreed 32%
       of father’s net income, or $1,280 per month, represents an upward deviation from the
       statutory amount that must be supported by the record. See Demattia, 302 Ill. App. 3d at 394
       (citing In re Marriage of Meyer, 140 Ill. App. 3d 1031, 1036 (1986)).
¶ 16        In this case, mother reported the cost for daycare and the extracurricular activities of the
       children totaled $1,854 per month. We note this amount actually exceeded the full amount
       of child support being paid by father ($1,185).
¶ 17        Based on the costs estimated by mother, 40% of $1,854 would be approximately $742
       and a 20% share of those extra expenses would be approximately $371. After adding the
       40% amount to father’s child support obligation, he would be paying $1,927 monthly or 50%
       of his net income. After the court reduced this amount to 20%, father is now paying $1,556
       per month, or approximately 40% of his entire net income.
¶ 18        We note that father has not appealed the court’s decision to require him to pay 20% of
       the added expenses, equaling 40% of his net income, suggesting to this court he is willing
       to accept this additional financial responsibility as a parent. However, the court’s earlier
       decision that required father to pay 40% of the daycare and extracurricular expenses,
       specifically $742 each month in addition to child support, would have reduced his net income
       by 50%, leaving father with approximately $1,923 of remaining net monthly income to pay
       his own expenses estimated to be $4,500.
¶ 19        Based on the re2cord, we agree father did not have the ability to pay 40% of daycare and
       additional extracurricular expenses. Therefore, we commend the court for reconsidering and


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       then correcting its own error. We conclude the trial court did not abuse its discretion in this
       case.

¶ 20                                    CONCLUSION
¶ 21      For the foregoing reasons, the decision of the circuit court is affirmed.

¶ 22      Affirmed.




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