                                                    NO. 5-09-0088
                   NOTICE

 Decision filed 12/27/10. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the
                                       ) Circuit Court of
KARA RASH,                             ) Williamson County.
                                       )
       Petitioner-Appellee,            )
                                       )
and                                    ) No. 99-D-62
                                       )
JASON KING,                            )
                                       )
       Respondent-Appellant            )
                                       ) Honorable James R. Moore and
(Larry King, Intervening Respondent-   ) Honorable Brad K. Bleyer,
Appellant).                            ) Judges, presiding.
________________________________________________________________________

             JUSTICE DONOVAN delivered the judgment of the court, with opinion.
             Justices Welch and Goldenhersh concurred in the judgment and opinion.

                                                    OPINION

             The circuit court of Williamson County denied the joint petition of respondent and

intervenor to offset respondent's obligation to pay a portion of the accrued medical expenses

of his child with the child's social security dependent benefit and to terminate respondent's

future medical support obligation to the child. On appeal, respondent and intervenor contend

that the circuit court erred in denying a setoff where the dependent benefit was secured

through respondent's contributions to social security during his years of employment and that

the circuit court abused its discretion in refusing to terminate respondent's medical support

obligation where undisputed evidence established that respondent had a substantial change

in circumstances.

             Petitioner, Kara Rash, and respondent, Jason King, were married on December 4,


                                                         1
1993. The parties have one child, Baylee, who was born on November 11, 1996. The

parties' marriage was dissolved on February 17, 1999. According to the terms of the court-

approved, marital settlement agreement, respondent agreed to pay $185.70 per month in child

support, petitioner agreed to provide medical insurance for the minor child, and petitioner

and respondent agreed to split all the medical, optical, dental, and extraordinary expenses

that were not covered by medical insurance. The marital settlement agreement was made a

part of the judgment of dissolution. In March 2001, the court entered an agreed order in

which respondent's child support obligation was increased to $100 biweekly.

       In July 2004, respondent was involved in a motor vehicle accident. He sustained

severe injuries that left him permanently and totally disabled. In August 2005, Larry King,

respondent's father and intervenor herein, was appointed as the guardian of respondent's

estate. In November 2007, respondent learned that his application for a social security

disability benefit was approved. Respondent was eligible for a monthly disability benefit

retroactive to December 2004, and his child was eligible for a monthly dependent benefit

retroactive to December 2004.       Respondent and his child each received a lump-sum

distribution as payment for the benefits that had accrued from December 2004 to November

2007. The child received a lump-sum payment of approximately $13,000. She was to

receive a monthly benefit of approximately $500 during her dependency.

       In September 2006, the Illinois Department of Healthcare and Family Services,

Division of Child Support Enforcement, filed a participation notice indicating that it would

provide child support enforcement services on behalf of petitioner. On M ay 22, 2008,

intervenor filed a motion to intervene. Intervenor asserted that a dispute had arisen regarding

whether a portion of the child's dependent benefit could be applied to offset respondent's

share of the uncovered medical expenses of the child that had accrued since respondent's

accident. Intervenor asserted that he had an interest in the dispute because he had been


                                              2
appointed as the guardian of respondent's estate and he had a fiduciary responsibility to

properly manage respondent's funds.

       On May 28, 2008, intervenor and respondent jointly petitioned the court to terminate

respondent's child support and medical support obligations and to adjudicate a setoff of the

child's accrued medical expenses against the dependent benefit. Respondent and intervenor

noted that petitioner had paid all the child's medical expenses since the date of respondent's

accident, that petitioner had claimed that respondent's share of the uncovered medical

expenses was $3,967.97, and that petitioner had demanded reimbursement of that amount.

Intervenor asserted that respondent's social security disability benefit was respondent's only

source of funds. Intervenor asserted that under his interpretation of pertinent regulations of

the Social Security Administration, a portion of respondent's past medical support obligation

should be offset by the lump-sum payment of the accrued dependent benefit to his child and

that respondent's future medical obligation should be satisfied by the monthly dependent

benefit. Intervenor and respondent also argued that respondent's future child support and

medical support obligations should be terminated pursuant to section 510(a) of the Illinois

Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510(a) (West 2008)), due to

the substantial change in respondent's circumstances.

       On July 3, 2008, the circuit court entered an agreed order finding that as of January

24, 2008, respondent owed $3,954.80 in unpaid child support and interest. The court

ordered respondent to satisfy the arrearage upon receiving the lump-sum payment of the

accrued social security disability benefit. The court also found that there had been a

substantial change in respondent's circumstances. The court ruled that respondent would not

be required to pay child support as long as his only source of funds was a monthly social

security disability benefit.

       On August 18, 2008, petitioner filed a petition for a rule to show cause why


                                              3
respondent should not be held in contempt for his failure to pay one-half of the uncovered

medical expenses incurred on behalf of the child in the years 2005, 2006, 2007, and 2008,

as required under the marital settlement agreement. Petitioner also sought an order directing

respondent to pay $2,500 to cover the attorney fees she incurred in enforcing the agreement.

In response, respondent claimed that his obligation to pay one-half of the medical expenses

that had been incurred since December 2004 had been met because the child's dependent

benefit constituted substitute income to a disabled worker's family.

       On November 17, 2008, the parties filed a stipulation setting forth the pertinent facts

and the contested issues. The parties acknowledged that respondent was a disabled adult and

that their child was receiving a monthly dependent benefit of $514 because of respondent's

disability. The parties agreed that respondent's requests to terminate his medical support

obligation and to adjudicate a setoff for his share of accrued medical expenses presented

questions of law that could be decided based on the stipulated facts and the legal authorities

submitted by each party. In accordance with the stipulation, if the position taken by

respondent and intervenor prevailed on the law, the contempt petition would be moot, and

if their position failed on the law, respondent would owe $3,433.24 in accrued medical

expenses, respondent would have a continuing obligation for medical support for the child,

and petitioner could proceed with the contempt petition.

       On December 2, 2008, the circuit court entered an order denying the request to offset

respondent's obligation to pay the accrued medical expenses with the dependent benefit. The

court found, "[A]ny amount in excess of the parent's monthly child support obligation paid

by Social Security is a gratuity that belongs to the child and should not be set-off against a

separate obligation for medical expenses." The court granted the rule to show cause and

entered a judgment against respondent in the sum of $3,433.24 for the accrued, uncovered

medical expenses. The court determined that there was a sufficient basis for respondent to


                                              4
believe that he was not obligated to pay the accrued medical expenses, based on his

interpretation of In re Marriage of Henry, 156 Ill. 2d 541, 622 N.E.2d 803 (1993), and that

respondent's conduct was not wilful and contumacious.         The court further found that

respondent's disability constituted a substantial change in his circumstances, and the court

ordered an evidentiary hearing on the petition to terminate respondent's medical support

obligation. The evidentiary hearing was held on February 9, 2009. The court issued an

order denying the petition on February 10, 2009.

       Initially, respondent and intervenor contend that the circuit court erred in declining

to offset respondent's share of the accrued medical expenses incurred on behalf of the child

with the dependent benefit paid to the child, where the dependent benefit was secured

through respondent's contributions to social security during his years of employment. Stated

differently, the question is whether the payment of the dependent benefit to the child on

behalf of respondent satisfied his obligation to pay half of the uncovered or extraordinary

medical expenses that had accrued since he had been declared disabled.

       The financial responsibility to support a child is the joint and several obligation of

each parent. 750 ILCS 5/505(a) (West 2008). In accordance with the long-standing public

policy of Illinois, the parental support of a minor child includes the duty to provide for the

reasonable and necessary physical, mental, emotional, and monetary support of the child.

See 750 ILCS 5/505(a) (West 2008); 750 ILCS 45/1.1 (West 2008); People ex rel. Sheppard

v. Money, 124 Ill. 2d 265, 269, 529 N.E.2d 542, 544 (1988). In raising a child, parents have

a responsibility to provide necessary expenditures for food, clothing, shelter, and medicine.

Stockton v. Oldenburg, 305 Ill. App. 3d 897, 901, 713 N.E.2d 259, 263 (1999). Parents are

also responsible for necessary medical expenses of the minor child. See 750 ILCS 5/505(a)

(West 2008); 750 ILCS 65/15(a)(1) (W est 2008). The provision of health insurance is

another integral element of the parents' support obligation. 750 ILCS 5/505.2(b)(1) (West


                                              5
2008); Franson v. Micelli, 172 Ill. 2d 352, 356, 666 N.E.2d 1188, 1189 (1996). The trial

court has discretion to order one parent or both parents to pay a health insurance premium

for the benefit of the minor child and to pay the uncovered and extraordinary medical

expenses of the minor child. 750 ILCS 5/505.2(b)(3) (West 2008); In re Keon C., 344 Ill.

App. 3d 1137, 1146, 800 N.E.2d 1257, 1264 (2003); In re Marriage of Raad, 301 Ill. App.

3d 683, 688, 704 N.E.2d 964, 967 (1998).

       A child is eligible for a social security dependent's benefit if the child is dependent

on and receiving contributions for his or her support from an insured person. See 42 U.S.C.

§402 (2006); 20 C.F.R. §404.366 (2005). Under section 404.366(a) of Title 20 of the Code

of Federal Regulations, contributions for support include costs for food, shelter, routine

medical care, and other ordinary and customary items needed for the maintenance of the

dependent child. 20 C.F.R. §404.366(a) (2005). The insured must make contributions

regularly, and the contributions must be large enough to meet an important part of ordinary

living costs, such as for food, shelter, routine medical care, and similar necessities. 20

C.F.R. §404.366(a) (2005). The Social Security Administration has provided examples of

appropriate expenditures for which a representative payee may use a dependent's benefit.

See 20 C.F.R. §404.2040 (2005). Under section 404.2040 of Title 20 of the Code of Federal

Regulations, a representative payee may apply the monthly benefit to the costs for food,

shelter, clothing, medical care, and personal comfort items for the beneficiary's current

maintenance. 20 C.F.R. §404.2040 (2005).

       Respondent and intervenor argue that the nature and purpose of respondent's medical

support obligation and that of the dependent benefit are the same and that, in accordance

with the Illinois Supreme Court's decision in In re Marriage of Henry, the dependent benefit

should have offset respondent's obligation for his share of the accrued, uncovered medical

expenses of his child.


                                              6
       In In re Marriage of Henry, the Illinois Supreme Court was called upon to decide

whether the payment of a social security dependent's benefit on behalf of the obligated parent

satisfied the parent's child support obligation. In re Marriage of Henry, 156 Ill. 2d 541, 622

N.E.2d 803 (1993). In analyzing this issue, the supreme court considered the nature and

purpose of the dependent's benefit. In re Marriage of Henry, 156 Ill. 2d at 550, 622 N.E.2d

at 808. The supreme court determined that a social security dependent benefit was not

gratuitous but, rather, was generated through the labor and earnings of the worker for the

purpose of supporting his dependent children should he be unable to do so. In re Marriage

of Henry, 156 Ill. 2d at 550-51, 622 N.E.2d at 808-09. The court concluded that because the

dependent benefit was earned by the noncustodial parent, was made on behalf of that parent,

and was paid with contributions from that parent's earnings, the payment of the dependent

benefit satisfied the noncustodial parent's child support obligation. In re Marriage of Henry,

156 Ill. 2d at 552, 622 N.E.2d at 809. The dependent's benefit satisfied only the amount of

the child support arrearage that accrued during the period that the dependent's benefit was

received. In re Marriage of Henry, 156 Ill. 2d at 549-50, 622 N.E.2d at 808; Department

of Public Aid ex rel. Pinkston v. Pinkston, 325 Ill. App. 3d 212, 757 N.E.2d 977 (2001).

       The issue is this case is distinguishable from that decided in In re Marriage of Henry.

The question in this case is whether the payment of the dependent benefit on behalf of a

disabled parent satisfies that parent's obligation to pay his share of the uncovered or

extraordinary medical expenses that have accrued since he was declared disabled. Following

the template of the supreme court's reasoning outlined in In re Marriage of Henry, we have

considered whether the medical support obligation and the social security dependent benefit

serve similar purposes, and we have concluded that they do not.

       Under the terms of the parties' marital settlement agreement, respondent was obligated

to make a fixed biweekly payment of $100 in child support and petitioner and respondent


                                              7
were obligated to "split all medical, optical, dental[,] and extraordinary expenses incurred

by the child and not covered by insurance." A fixed monthly child support payment and a

monthly social security dependent's benefit serve substantially similar purposes. In re

Marriage of Henry, 156 Ill. 2d at 551, 622 N.E.2d at 809. Each is intended to provide for

ordinary and customary items needed for the support and maintenance of a dependent child.

See 750 ILCS 5/505(a)(1) (West 2008); 20 C.F.R. §404.366(a) (2005). Rent, utilities, and

groceries are examples of fixed, relatively predictable, ordinary expenses that can be

estimated and itemized in a family budget. In contrast, uncovered and extraordinary medical

expenses are, in general, not fixed, less certain, and unpredictable costs for which it is

difficult to budget. These expenses can be budget busters. In this case, the parties agreed

to split the extraordinary medical expenses and included these expenses as a specific

provision, separate from the child support provision, in their marital settlement agreement.

After considering the nature and purpose of the social security dependent benefit and that of

the medical support obligation, we cannot conclude that a dependent benefit is intended to

cover unpredictable, contingent costs such as uncovered health care expenses and

extraordinary expenses. Accordingly, the circuit court did not err in denying the motion to

apply the dependent benefit to offset respondent's obligation to pay his share of the child's

medical expenses that had accrued from December 2004 through December 2008.

       Respondent and intervenor next contend that the circuit court abused its discretion in

denying the petition to terminate respondent's ongoing medical support obligation where the

undisputed evidence showed that respondent was totally disabled and that respondent's social

security disability benefits constituted his only source of income.

       When a settlement agreement is incorporated into a judgment, the underlying

agreement itself remains modifiable with respect to terms involving child support. 750 ILCS

5/502(b) (West 2008). An order for child support may be modified or terminated upon a


                                             8
showing of a substantial change in circumstances. 750 ILCS 5/510(a)(1) (West 2008). The

burden of proof is on the moving party. In re Marriage of Garrett, 336 Ill. App. 3d 1018,

1021, 785 N.E.2d 172, 174 (2003). A change in the circumstances of the obligor parent does

not necessarily constitute a substantial change in circumstances for purposes of a

modification of child support. See, e.g., Edwards v. Edwards, 125 Ill. App. 2d 91, 259

N.E.2d 820 (1970); Gaines v. Gaines, 106 Ill. App. 2d 9, 245 N.E.2d 574 (1969).

       Once a substantial change in circumstances has occurred, then the court may proceed

to consider a modification of child support in accordance with the factors set forth in section

505(a)(2) of the Act (750 ILCS 5/505(a)(2) (W est 2008)). See In re Marriage of Bussey, 108

Ill. 2d 286, 296, 483 N.E.2d 1229, 1233 (1985). The court will consider the financial

resources and needs of the child, the financial resources and needs of the custodial parent,

the standard of living the child would have enjoyed had the marriage not been dissolved, the

physical and emotional condition of the child and his or her educational needs, and the

financial resources and needs of the noncustodial parent. 750 ILCS 5/505(a)(2) (W est 2008).

A petition to modify child support must be decided on the facts and circumstances of each

case. A modification of child support rests within the sound discretion of the circuit court,

and the court's decision will not be disturbed absent an abuse of that discretion. In re

Marriage of Bussey, 108 Ill. 2d at 296, 483 N.E.2d at 1233; In re Marriage of Mitteer, 241

Ill. App. 3d 217, 608 N.E.2d 607 (1993).

       In this case, there is no question that respondent had a substantial change in his

circumstances, in that he was permanently and totally disabled from gainful employment as

a result of a motor vehicle accident. Based on that change in respondent's circumstances, the

circuit court determined that it was necessary to review the financial situation of the parties

and the order of child support. During the evidentiary hearing, respondent did not establish

a sufficient change in financial conditions of the parties to warrant a modification of his


                                              9
medical support obligation. Intervenor testified that respondent's net income is $87 per

month more than it was before he became disabled. Though respondent's social security

disability benefit provided his sole source of funding, the evidence indicates that his

disability benefit was more than he had been earning in the workforce. In addition,

respondent has been relieved of his obligation to pay $100 biweekly in child support so long

as he is disabled from gainful employment.

       In this case, respondent did not show an increase in his obligations. Respondent did

not show that the needs of the parties' child had decreased or that the economic

circumstances of petitioner had increased. Given the parties' original agreement to split the

medical expenses not covered by insurance, it is reasonable to assume that they recognized

that neither was in an economic position to absorb the uncovered and extraordinary costs

alone. There is no evidence that the available means of either party have substantially

improved. On this record, we cannot conclude that the circuit court abused its discretion in

denying the petition to terminate respondent's medical support obligation.

       Accordingly, the judgment of the circuit court is affirmed.



       Affirmed.




                                             10
                                  NO. 5-09-0088

                                      IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
___________________________________________________________________________

In re MARRIAGE OF                        ) Appeal from the
                                         ) Circuit Court of
 KARA RASH                               ) Williamson County.
                                         )
        Petitioner-Appellee,             )
                                         )
 and                                     ) No. 99-D-62
                                         )
 JASON KING,                             )
                                         )
        Respondent-Appellant             )
                                         ) Honorable James R. Moore and
 (Larry King, Intervening Respondent-    ) Honorable Brad K. Bleyer,
 Appellant).                             ) Judges, presiding.
___________________________________________________________________________

Opinion Filed:         December 27, 2010
___________________________________________________________________________

Justices:         Honorable James K. Donovan, J.,

                 Honorable Thomas M. Welch, J.,
                 Honorable Richard P. Goldenhersh, J.,
                 Concur
___________________________________________________________________________

Attorney         Michael L. Miles, 3200 Fishback Road, P.O. Box 907, Carbondale, IL
for              62903
Appellants
___________________________________________________________________________

Attorneys        Michael V. Oshel, Matthew Oshel, Oshel Law, P.C., 317 East Poplar
for              Street, Suite C, Harrisburg, IL 62946
Appellee
__________________________________________________________________________
