                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                     In re Marriage of McGrath, 2011 IL App (1st) 102119




Appellate Court              In re MARRIAGE OF MARY ELLEN McGRATH, Petitioner-
Caption                      Appellee, and MARTIN GIBBONS McGRATH, Respondent-
                             Appellant.



District & No.               First District, Second Division
                             Docket No. 1–10–2119


Filed                        June 30, 2011


Held                         In determining respondent’s child support obligation, the trial court
(Note: This syllabus         properly found that respondent's withdrawals from his savings accounts
constitutes no part of the   constituted income, since the Illinois Marriage and Dissolution of
opinion of the court but     Marriage Act defines “net income” as “the total of all income from all
has been prepared by the     sources,” and based on withdrawals of approximately $8,500 per month
Reporter of Decisions for    for his personal expenses, the trial court did not err in deviating
the convenience of the       downward from the statutory guideline of 28% for two children and
reader.)                     ordering respondent to pay $2,000 per month.


Decision Under               Appeal from the Circuit Court of Cook County, No. 06–D–8453; the
Review                       Hon. Kathleen G. Kennedy, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Paul L. Feinstein, Ltd., of Chicago, for appellant.
Appeal
                           Pasulka & Associates, P.C., of Chicago (Mitchell B. Gordon, David P.
                           Pasulka, and Molly E. Caesar, of counsel), for appellee.


Panel                      JUSTICE KARNEZIS delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Cunningham and Justice Harris concurred in the
                           judgment and opinion



                                             OPINION

¶1          Respondent Martin Gibbons McGrath appeals from an order of the circuit court in favor
        of petitioner Mary Ellen McGrath, in which Martin was ordered to pay $2,000 a month in
        child support for the parties’ two children. On appeal, Martin contends: (1) the circuit court
        erred in ruling that money withdrawn from Martin’s savings accounts constituted “net
        income” for purposes of determining child support; (2) the circuit court erred in determining
        Martin’s child support obligation should be $2,000 a month; and (3) the circuit court erred
        in denying Martin’s motion to reconsider. For the following reasons, we affirm the judgment
        of the circuit court.

¶2                                             Background
¶3          We set forth briefly only those facts relevant to the issues presented on appeal. On
        September 14, 2007, the court entered the judgment for dissolution of marriage incorporating
        the parties’ marital settlement and joint parenting agreements. The agreements provided that
        the parties’ twin children, born on August 9, 2001, would reside with Mary Ellen, and the
        parties agreed to contribute to the children’s various expenses. At the time of the judgment,
        Martin was unemployed so the issue of child support was reserved. The agreements
        additionally provided that the “issue of additional contribution by Martin to the support of
        the parties’ children may be addressed by either party pursuant to agreement or petition to
        the court.”
¶4          Subsequently, on July 9, 2008, Mary Ellen petitioned the court to determine child support
        and other relief. After the parties completed discovery, a hearing was held. Martin testified
        at the hearing that he was currently unemployed and lives off the assets that were awarded
        to him as his part of the marital estate. Each month he withdraws about $8,500 a month from
        his savings accounts to meet his expenses. Based on Martin’s testimony and the evidence
        presented at the hearing, the court ordered Martin to pay $2,000 a month in child support.
        Martin appeals from the court’s order.


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¶5                                            Analysis
¶6          The guidelines in section 505 of the Illinois Marriage and Dissolution of Marriage Act
       (Act) (750 ILCS 5/505 (West 2010)) provide that a parent with two children should pay 28%
       of his or her “net income” for child support. The Act allows the court to deviate from the
       guidelines depending upon several factors, including the financial resources and needs of the
       child, the financial resources and needs of the custodial parent, and the financial resources
       and needs of the noncustodial parent. 750 ILCS 5/505(a)(2) (West 2010). The Act defines
       “net income” as “the total of all income from all sources,” minus various deductions not
       relevant here. 750 ILCS 5/505 (West 2010). We review the circuit court’s determination of
       what constitutes “net income” under the Act de novo. In re Marriage of Rogers, 213 Ill. 2d
       129, 136 (2004).
¶7          Martin first contends on appeal that the money he withdraws every month from his
       savings accounts for his monthly living expenses should not be considered income. He
       argues that the money is not income because he is merely spending money he already has and
       is not earning or receiving any type of monetary gain.
¶8          Martin relies on In re Marriage of O’Daniel, 382 Ill. App. 3d 845 (2008), for support.
       In O’Daniel, the Fourth District of this court held that money withdrawn from an individual
       retirement account (IRA) did not constitute income under the Act because the money in the
       account was self-funded and was basically no different than a savings account. O’Daniel, 382
       Ill. App. 3d at 850. Martin argues that we should follow O’Daniel and also find that money
       withdrawn from his savings accounts does not constitute income under the Act.
¶9          Martin also acknowledges, however, that there is a Second District case and a First
       District case that held to the contrary. Prior to O’Daniel, the Second District held in In re
       Marriage of Lindman, 356 Ill. App. 3d 462, 468 (2005), that IRA withdrawals are income
       pursuant to the Act. After O’Daniel was decided, the First District also held in In re
       Marriage of Eberhardt, 387 Ill. App. 3d 226, 232 (2008), that IRA withdrawals are income
       pursuant to the Act. Martin argues we should follow the holding in O’Daniel rather than
       Lindman and Eberhardt, despite Eberhardt being decided by the First District of this court.
¶ 10        We understand Martin’s comparison between his savings accounts and an IRA and his
       reliance on O’Daniel. However, the issue presented in this case does not require us to follow
       or deviate from the holdings in O’Daniel or Lindman and Eberhardt. Here, we need only
       determine whether the money Martin withdraws from his savings accounts constitutes “net
       income” under the Act. We answer this question by looking at the Act.
¶ 11        As noted above, “net income” is defined as “the total of all income from all sources.” 750
       ILCS 5/505(a)(3) (West 2010). An unemployed parent who lives off regularly liquidated
       assets is not absolved of his child support obligation. The legislature has adopted an
       expansive definition of what constitutes “net income.” There are no provisions in the Act
       excluding Martin’s monthly withdrawals from the definition of “net income.” The circuit
       court has discretion in the appropriate case to order child support based on regularly
       liquidated assets used to fund expenses. Absent an abuse of discretion, we will not disturb
       the circuit court’s finding that money from such assets constitutes income for child support

                                                -3-
       orders. We conclude that the circuit court was correct to include as part of Martin’s income
       the money he withdraws from his savings accounts.
¶ 12       Martin next contends on appeal that the circuit court erred in ordering him to pay $2,000
       a month in child support. Martin argues that his only income is the interest he receives from
       his savings accounts, which amounts to $171.69 a month. He maintains that he should only
       have to pay 28% percent of $171.69 for child support, which amounts to $48.07 a month.
¶ 13       Here, however, we determined above, as did the circuit court, that Martin’s withdrawals
       from his savings accounts constituted income. According to Martin, he withdraws about
       $8,500 per month for his personal expenses. Based on this amount, the circuit court
       determined that the statutory guideline of 28% amounted to $2,380 a month. The court then
       deviated downward from the guidelines, ordering Martin to pay only $2,000 a month.1 We
       find no error in the court’s order.
¶ 14       Lastly, Martin contends that the circuit court erred in denying his motion to reconsider.
       However, as stated above, we find that the circuit court’s order was proper. Therefore, the
       circuit court’s denial of Martin’s motion to reconsider was proper.
¶ 15       Accordingly, we affirm the judgment of the circuit court.
¶ 16       Affirmed.




               1
                 The court subsequently clarified its order to include the $171.69 Martin receives in monthly
       interest in his income, and subtracted the $498 he pays monthly for health insurance. Nevertheless,
       the court still concluded that Martin should pay $2,000 a month in child support, which is less than
       the statutory 28% guideline.

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