ILLINOIS LAW RE CHILD SUPPORT — “101/102" — STATUTORY AND CASE LAW
this article covers Case Law
click: for article covering Statutory Law

By: Gunnar J. Gitlin
The Gitlin Law Firm, P.C., Woodstock, Illinois
© 2007
www.gitlinlawfirm.com

Table of Contents:

IV.  Case Law Interpretations of IMDMA §505(a)(3)

Requirement for Proper Net Income Calculations in Each Case

Method of Calculating Net Income

Gross Income

Adjusted Gross Income

Itemized or Standard Deductions and Exemptions

Federal Tax Rate

Social Security Tax

State Tax

Net Income

Health Care Premiums

Prior Obligations of Support

Depreciation and Business Expenses

Types of Cases

Quantification

Flowchart re Depreciation Cases

Debt Repayment Schedule

Reasonable and Necessary for Production of Income

Increase in Income

Reasonableness

Per Diem Deduction for Business Expenses / What Constitutes "Income"

Crossland — Rejected Deduction for Per Diem Business Expenses

Worrall — Allowed Deduction of Per Diem Business Expenses if Actual Amounts Spent Proven

Tegeler — For Self-Employed Individuals Day to Day Operating Expenses Do Not Constitute Income

Reasonable Expenditures for the Benefit of the Child and the Other Parent

General Expenses for the Benefit of the Child, Exclusive of Gifts

Child Care Expenses

Income Averaging Cases

One Time Income

Deviations from the Support Guidelines

Deviations In Cases with Extensive Parenting Time

Child Support to Visiting Parent

Deviations from the Guidelines in High Income Cases

Decision Leading to Change in Law as to Needs -- Van Kampen

Garrett

Ackerley

Singleteary

Perry

Scafuri

Lee

Graham v. Adams

Bush

Summary as to Deviation Cases

Credit Toward Support Obligation -- Social Security Benefits and Adoption Subsidies

V.  Consideration of Income Tax Refunds, Dependency Exemptions and the Child Care Credit

Pylawka — Case Arguably Requiring Maintenance to be Considered as Adjustment in Determining Net Income

Dependency Exemptions

VI.  Support and Maintenance Arrearages — Is it Property or is it Subject to a QDRO?

VII.  Failure to Withhold / Pay Over Income for Support

IV.Case Law Interpretations of IMDMA §505(a)(3):

            A.        Requirement for Proper Net Income Calculations in Each Case: Case law has held that it is improper for the court not to consider the effect of the parties' new filing status and the reallocation of the dependency exemptions. Thus, net income calculations are required in virtually every case. The trial court should require each lawyer to present net income calculations in every case where the amount of child support is at issue. A 2002 case that is excellent reading as to how net income is properly determined is IRMO Ackerley, 333 Ill.App.3d 382, 266 Ill.Dec. 973, 775 N.E.2d 1045 (2d Dist. 2002). Ackerley is an Second District case, August 2002 case. Because Ackerley reads as a primer on the law as to calculation of support in complex cases, I enclose a copy of the bulk of the decision (with the portions addressing contempt and fees eliminated.)

In Ackerley the trial court ordered payment of a support arrearage of $90,975 and set a support obligation of $3,000 per month. By the terms of the marital settlement agreement, the husband had been required to pay a base amount of support plus an amount equal to 25% of any “net bonus as defined by statute” received by him from his employer. The agreement provided, “For verification purposes, father shall provide mother with copies of his W-2 forms or other tax related statements indicating the bonus he has received on or before January 31^st of each calendar year for the preceding calendar year.” The ex-husband was current in his base support as well as the bonuses through January of 2000.

One issue was whether FICA payments should be deducted in determining the amount owed for the support arrearage. The discussion of this is interesting in part because the bonuses were received at the beginning of the year and there was withholding from the bonus checks due to the FICA contribution. The appellate court rejected this argument noting that the FICA contribution ceases after a certain income level. The case quoted from IRMO Olson, 223 Ill.App.3d 636 (1992), “Bimonthly payroll receipts for periods less than a year for a noncustodial parent with above-average income may not reflect true income because such partial records do not reflect increased income on reaching maximum FICA withholding.” The appellate court stated:

The mere fortuity that respondent received his bonuses early in January, which often terminated his FICA obligation for the balance of the year and allowed him to collect his base salary free of this tax, should not work to disadvantage petitioner and the children.... In short, we find no error in attributing deductions for dependent health insurance and FICA taxes to respondent's base salary instead of to his bonuses.

Another issue was whether the trial court should have added back his tax refunds into the ex-husband's bonuses. The appellate court noted it was able to use the actual amount of income the ex-husband received as well as the actual tax he paid as shown on his tax returns. Ackerley comments that Section 505(a)(3)(a) allows for a deduction of federal income tax as “properly calculated withholding or estimated payments.” The appellate court stated:

Properly calculated withholding is, by definition, withholding that coincides with actual tax owed on one's gross income. Thus, in calculating respondent's net income, we deducted the actual federal income tax that he paid from the actual total income that he received. An alternate approach employed by some courts is to begin with net income and add back in any refunds, which represent overwithholding. See In re Marriage of Pylawka, 277 Ill. App. 3d 728, 733 (1996) ("Thus, if the noncustodial parent overwithholds on his W-2, thereby overpaying his Federal income tax, the amount should be added back to his net income for purposes of determining his support obligation under section 505(a) of the Act"). These approaches represent two sides of a single mathematical coin. Because we have the benefit of having respondent's tax returns for past years available, we have chosen to employ the former approach, as it simplifies the calculation. Further, we agree with respondent that the effect of respondent's wife's income on his tax refunds should have been ignored. We note, however, that respondent's wife's income was relatively trivial when compared with respondent's income. Thus, whether one accounts for her income makes little difference to the ultimate determination of the amount of the arrearage.

The Ackerley decision also addressed one method to determine the Federal tax attributable to the bonus. It stated:

We first determined the amount of federal income tax attributable to a bonus. To do so, we divided the bonus by the total income for the given year. This yielded a ratio of bonus to total income. We then multiplied the total federal income tax for the year by the ratio. This yielded a figure that represented a proportionate share of the tax attributable to the bonus. By attributing a proportionate share of the tax to the bonus, we eliminated the effect of tax bracketing used in the federal income tax system. We believe that eliminating this effect is equitable. Neither party should benefit or be prejudiced by the artifice of considering certain income as falling into a certain bracket. Moreover, in determining appropriate child support, we are not bound by the technicalities of federal income tax law. See In re Marriage of McGowan, 265 Ill. App. 3d 976, 979 (1994).

This decision is a well-reasoned and complex decision. It points to the complex nature of proper support calculations. The appellate court did not base the taxes on the highest marginal tax bracket or on the lowest marginal tax bracket. Instead, it determined the overall effective tax bracket and determined taxes on this basis. For a further discussion of this topic, see the outlines regarding tax calculations in support cases.

            B.        Method of Calculating Net Income: Attached is a worksheet for calculation of net income. This worksheet will let you know what to look for when you analyze net income calculations offered by either party. Some judges use a tax program in chambers to determine net income. An excellent program of this type is FinPlan, (800) 777-2108.

                        1.         Gross Income: Determine the gross income.

                        2.         Adjusted Gross Income: Determine the adjusted gross income by subtracting adjustments from the gross income. The common adjustments are maintenance payments and certain voluntarily retirement contributions.

                        3.         Itemized or Standard Deductions and Exemptions: From the adjusted gross income, subtract the exemptions and the deductions. For final hearings, assume the tax status following the divorce. Thus, if the child support payor is awarded a residence and you know the amount of itemized deductions, use itemized deductions. If itemized deductions are not known, then use the standard deduction. Use the total number of exemptions that the payor will be entitled to following the divorce.

                        4.         Federal Tax Rate: Apply the tax chart to determine the federal tax or use the following chart for 2007: 

                        5.         Social Security Tax: Determine the social security tax. This is calculated based upon gross employment income with a cap for the FICA component. The health insurance (Medicare) portion does not have a cap. Calculation of net for self-employed individuals is more complicated. Judges should require attorneys to submit net income calculations in each such case. 

                        6.         State Tax: Next, state tax is calculated upon gross income. $2,000 is deduction per exemption. The taxpayer's paid real estate taxes are also an exemption.

                        7.         Net Income: Subtract federal, state and FICA from the adjusted gross income. Finally, subtract the deductions allowed per §505 as well as the total child care credit (discussed below).

            C.        Health Care Premiums: IRMO Stone, 191 Ill.App.3d 172, 138 Ill.Dec. 547, 547 N.E.2d 714 (4th Dist. 1989), was the first case to hold that the deduction for health and hospitalization insurance premiums is not limited to children covered by the support order but includes all premium amounts paid.   In IRMO Davis, 287 Ill.App.3d 846, 223 Ill.Dec. 166, 679 N.E.2d 110 (5th Dist. 1997), the appellate court held that the trial court erred in not allowed a father a deduction in determining child support for health insurance premiums he paid for himself.

The provision of §505(a)(4) of the Illinois Marriage and Dissolution of Marriage Act, however, differs in its treatment of health care premiums as a deduction in determining net income where the court order provides for health insurance per §505.2(b). This statute appears to limit the deduction to the "portion of the premiums for which the supporting party is responsible in the case of insurance provided through an employer's health insurance plan where the employer pays a portion of the premiums" in determining net income.

            D.        Prior Obligations of Support: The issue here is whether prior obligations of support refers to prior families or prior support orders. This refers to a family that is first in time as compared to another family. IRMO Zukausky, 244 Ill.App.3d 614, 184 Ill.Dec. 367, 613 N.E.2d 394 (2d Dist. 1993). IRMO Potts, 297 Ill.App.3d 148, 231 Ill.Dec. 692, 696 N.E.2d 1263 (2d Dist. 1998), GDR 98-80.  However, a dissent by Justice Cook (in the 2005 Einstein v. Nijim decision)  attacked the reasoning of the Potts case.  The Cook dissent stated:

It has been suggested that the language of section 505(a)(3)(g) allowing the deduction of "[p]rior obligations of support or maintenance actually paid pursuant to a court order" (750 ILCS 5/505(a)(3)(g) (West 2000)) carries forward the rule that a divorced spouse's obligations to the first family must be met before the obligations to the second family can or will be considered. Potts, *** I would suggest that use of the term "prior obligations" simply expresses the desire that child support be calculated based on the current situation and not on consideration of future obligations or attempts to predict what may happen in the future.

Potts 's statement of the "first family" rule is not supported by the cases it cites. In re Marriage of Zukausky, 244 Ill. App. 3d 614, 624, 613 N.E.2d 394, 402 (1993), mentions the rule but goes on to say "[t]he court should not ignore the supporting parent's obligations to a second family and should consider that factor in deciding the appropriate modification award for the first family." Roqueplot v. Roqueplot, 88 Ill. App. 3d 59, 63, 410 N.E.2d 441, 444 (1980), involved a petition to modify child support after the petitioner married a woman who had five children. Support of other children may be disregarded where there is no legal or moral obligation to provide it. In re Marriage of Vucic, 216 Ill. App. 3d 692, 704, 576 N.E.2d 406, 414 (1991).

A significant case addressing children by a previously relationship is Slagel v. Wessels, 314 Ill.App.3d 330, 247 Ill.Dec. 765, 732 N.E.2d 720 (4th Dist. 2000). The question in that case is whether the court may deviate downward from the support guidelines in a case where there is a prior support obligation. Slagel involved a fact pattern in which the mother's previous husband had died and as a result she had custody of three children by a previous marriage. Therefore, there was no support obligation of the mother. In rejecting a rote application of the guidelines, the opinion stated:

The guidelines are a useful method of insuring that child support is set in an amount that is reasonable and necessary. Section 505, however, does not provide comprehensive rules for every conceivable situation. It is recognized that there are times when it will be improper for the trial court to apply the guidelines. For example, in "split custody" cases, where each parent is the custodian of at least one of the parties' children, section 505's guidelines are not necessarily applicable. In re Marriage of Demattia, 302 Ill.App.3d 390, 393, 706 N.E.2d 67, 69 (1999). [GDR 99-22].

The Slagel court met the argument that §505 addresses prior child support obligations. The opinion stated:

One could argue that the legislature dealt with this situation when it provided a deduction from "net income" for "[p]rior obligations of support or maintenance actually paid pursuant to a court order." 750 ILCS 5/505(a)(3)(g) (West 1998). We disagree. Wessels argues that there is no court order here. The "court order" requirement was designed to avoid the situation where the individual owing a duty of child support sought to avoid that obligation by asserting the payment of large amounts to a prior family that may not in fact have been made or that may have been made in excess of the needs of the prior family. There is no doubt that Slagel is the sole support for her three children, and she should be given some consideration for the payments that she is required to make on that account.

Slagel is a case of first impression in Illinois addressing this issue.

            E.        Depreciation and Business Expenses: Subsection 505(a)(5) defines net income as income from all sources minus certain deductions including:

(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income... The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.

            1.         Types of Cases: Early case law regarding business expenses did not concentrate on the requirement of showing a debt repayment schedule. Cases shortly before the Supreme Court's Minear decision dealing with depreciation cases have emphasized this requirement: IRMO Nelson, 297 Ill.App.3d 651, 232 Ill.Dec. 654, 698 N.E.2d 1054 (3d Dist. 1998), IRMO Davis, 287 Ill.App.3d 846, 223 Ill.Dec. 166, 679 N.E.2d 110 (5th Dist. 1997). However, the Illinois Supreme Court's IRMO Minear, 181 Ill. 2d 552, 230 Ill.Dec. 250, 693 N.E.2d 379 (1998), case indicated that the law is less than clear on this subject. The Minear ruling was a conservative one because it did not go beyond the issues presented. The Minear court sidestepped substantive legal arguments, noting that the husband never explained the basis for the depreciation expense in his financial statement and therefore the Minear Court ruled that the husband "failed to present evidence that would, under the rule he proposes, warrant exclusion of that expense." My comment to the Gitlin on Divorce Report of the Supreme Court's decision stated:

The Supreme Court could have easily decided to refuse to take cert. on this case. They probably accepted cert knowing that there was a division among the districts and wanting to clear up the issue. Unfortunately, after accepting cert and reviewing the record, they learned that there was nothing to state the nature of the depreciation expense. Being a conservative judiciary, the court did the proper thing and refused to suggest by way of broad dictum that had the expense been justified as reasonable and necessary that the expense would have been allowed.

By way of example, Nelson held that the child support payor was not allowed to deduct farm equipment depreciation from his net income because he failed to show the expense was an "expenditure for the repayment of debt." It further held that the child support payor was not allowed to deduct payments toward farm operating loan principal from his net income because allowing the deduction would have permitted the payor use of the same deduction twice.

            2          Quantification: Attached are two spreadsheets analyzing certain issues according to the relevant factors in the statutory and case law. The first spreadsheet analyzes the depreciation elements of the cases and the significant factors. The second spreadsheet analyzes the business expense cases (non-depreciation cases) and the significant factors.

One opinion, Gay on Behalf of Gay v. Dunlap, is divided into two parts because the determination of one expense was remanded to the trial court. The remainder of the expenses were not allowed.

The column regarding "Expense Allowed" refers to those cases in which the expense was ultimately allowed as a deductible reasonable and necessary business expense as an end result. This includes cases where the expense was allowed at the trial court level and the result was affirmed, and cases where the trial court did not allow the expense but there was a reversal.

The taxpayer type is not always clear from the opinion. Where it appears relatively clear, the taxpayer type is set forth. It is clear from the spreadsheet that in most cases the taxpayer is a Schedule C taxpayer. In only one case was the business incorporated: IRMO Heil. It is probably not coincidental that this is one of the few cases where at least a portion of the expense was allowed as a reasonable and necessary business expense.

            3.         Flowchart re Depreciation Cases: The IRMO Davis case presents what can be illustrated via a flow chart regarding depreciation cases. Note, however, that especially in light of the Illinois Supreme Court's Minear case as well as the Worrall case, it appears that the law is not at all fixed as to whether there is an emphasis on proof of a debt repayment schedule.

                                    a.         Debt Repayment Schedule: First determine if there is a debt repayment schedule.

                                                a.         If no    ➪          Generally non-deductible (but issue not definitely resolved per Minear/ Worrall)

                                                b.         If yes   ➪          Go to step b.

                                    b.         Reasonable and Necessary for Production of Income: Determine whether the payor maintains his or her burden of proof of demonstrating expense was reasonable and necessary expense for production of income. (See Minear, Worrall, etc.)

                                                1          Increase in Income: Did income increase as a result of the expense? If yes, go to step (2). If no, this still may be deductible if extenuating circumstances exist.

                                                            (a)       Extenuating Circumstances: If there are extenuating circumstances, did the payor have a good faith belief that his income would have increased as a result of the expense?

                                                                        i)         If no,   ·         Non-deductible.

                                                                        ii)        If yes,  ·          Go to step (2).

                                                2.         Reasonableness: Did the support payor maintain his or her burden of proof of demonstrating the expenses are reasonable?:

                                                            (a)       Straight-line = Reasonable according to Davis.

                                                            (b)       Non-straight line = Unreasonable: Convert to straight-line depreciation schedule.

The most difficult deduction for the court to handle is expenses for the repayment of debts that represent reasonable and necessary expenses for the production of income. Non-reimbursed business expenses may or may not be deductible, depending upon whether they are reasonable and necessary and whether there is a debt that is being repaid.

Good Faith Belief that Income Would Increase as a Result of Expenses:  In Gay on Behalf of Gay v. Dunlap, 279 Ill.App.3d 140, 215 Ill.Dec. 691, 664 N.E.2d 88 (4th Dist. 1996), the appellate court applied a good faith test to business expenses, i.e., whether those expenses were outlaid by a parent with a good-faith belief his or her income would increase as a result, and which actually did act to increase income, or would have done so absent some extenuating circumstances.

There is another argument, however, that business debts should be "limited to extraordinary, large ticket, nonrecurring expenses," based on the language of section 505(a)(3)(h): "The court ... shall enter an order containing provisions for its self-executing modification upon termination of such payment period," as urged by the dissent in Gay. The appellate court focused upon a specified repayment schedule in Posey v. Tate, 275 Ill.App.3d 822, 212 Ill.Dec. 69, 656 N.E.2d 222 (1st Dist., 6th Div. 1995). The Posey court held that the trial court did not abuse its discretion in allowing depreciation on rental properties to be deducted from income for purposes of setting child support, where the payor used a straight-line depreciation method and the expense could be presented in a specified repayment schedule. Contrast Posey to IRMO Cornale, 199 Ill.App.3d 134, 145 Ill.Dec. 188, 556 N.E.2d 806 (4th Dist. 1990), where the appellate court held that the trial court did not err in refusing to deduct from the support obligor's net income his expenses incurred for a rental property which, although an investment, produced no income.

Student Loans May be Only Partially Deductible:  A 2004 case addressing the so called business expense deduction is Roper v. Johns, 281 Ill.Dec. 655, 804 N.E.2d 620 (Fifth Dist. 2004), GDR 04-37, in which the Fifth District appellate court found that student loans (in this case for law school) may only be partially deductible based upon the rationale of the In re Marriage of Heil, 233 Ill. App. 3d 888, 892, 599 N.E.2d 168, 171 (1992) case (hunting lodge expenses only 50% deductible).  The Roper court first commented:  "The only such deduction relevant here is the deduction for the repayment of loans for "reasonable and necessary expenses for the production of income." 750 ILCS 5/505(a)(3)(h). This court has recognized that student loans fall within this category. In re Marriage of Davis, 287 Ill. App. 3d at 854, 679 N.E.2d at 116. Although we held that the loans at issue in In re Marriage of Davis were deductible in their entirety (see In re Marriage of Davis, 287 Ill. App. 3d at 856, 679 N.E.2d at 117), our opinion should not be read as holding that student loan payments will always be completely deductible. Like other debt payments deductible under this provision, student loans must be both reasonable and necessary for the production of income. See In re Marriage of Davis, 287 Ill. App. 3d at 853, 679 N.E.2d at 115 ("simply because an expense falls into the category of a debt repayment does not mean that it is necessarily deductible")."  The Roper court stated, "Moreover, our examination of the purposes to be served by allowing the deduction in the context of student loan payments convinces us that trial courts must have the flexibility to find that a partial deduction is warranted."

After reviewing the law in other jurisdictions as to the issue, the appellate court stated, "With these principles in mind, we next consider whether-and to what extent-the debt Jeff incurred in pursuing his education was reasonable and necessary. Illinois courts have defined "necessary" expenses as " 'those expenses outlaid by a parent with a good-faith belief his or her income would increase as a result, and which actually did act to increase income[] or would have done so absent some extenuating circumstances.' " In re Marriage of Davis, 287 Ill. App. 3d at 853, 679 N.E.2d at 115 (quoting Gay v. Dunlap, 279 Ill. App. 3d 140, 149, 664 N.E.2d 88, 95 (1996)). We have defined "reasonable" as not immoderate, extreme, or excessive considering the relationship between the amount of the expenditure and the amount by which the parent's income is expected to increase as a result. In re Marriage of Davis, 287 Ill. App. 3d at 853, 679 N.E.2d at 115 (citing Gay, 279 Ill. App. 3d at 149, 664 N.E.2d at 95)."  As to the amount of the partial deduction the appellate court finally reasoned, "In the instant case, Jeff's combination of degrees enhanced his earning capacity and was, therefore, necessary for the production of income. However, we do not believe that the expenditure was reasonable-at least not in its entirety-for two reasons. First, it was entirely possible for Jeff to attain those degrees without incurring such an overwhelming level of debt. He could have found a job using the skills he had acquired with his undergraduate business degree and either attended law school part time while working full time or waited a few years between college and law school so he could pay down some of his undergraduate loans and save money towards his law school tuition and expenses. Further, he could have applied to law schools with lower tuition. Second, we agree with the trial court that the amount of debt incurred was excessive in relation to the extent to which Jeff's income was enhanced."

Per Diem Deduction for Business Expenses:

            Crossland — Rejected Deduction for Per Diem Business Expenses:

IRMO Crossland, 307 Ill.App.3d 292, 240 Ill.Dec. 456, 717 N.E.2d 549 (3d Dist. 1999), held that the per diem expenses allowable as federal income tax deductions for unreimbursed business expenses are not deductible in calculating net income for child support purposes. In Crossland, the former husband sought a deduction for his business expenses based on the Internal Revenue Service's $36-per-day allowable income tax deduction for business expenses rather than an actual expense allowance provided by his employer. The trial court denied the ex-husband's request and the Third District appellate court affirmed.

On appeal, the ex-husband did not argue that his expenses fell within any deduction listed in §505(a)(3)(h) of the Illinois Marriage and Dissolution of Marriage Act. Rather, the ex-husband argued the legislature never contemplated that a supporting parent would have to pay child support on gross receipts reduced only by those deductions listed in §505(a)(3), and he should be able to deduct ordinary and necessary expenses incurred in carrying on his trade. He further argued the IRS's per diem allowance was a reasonable estimation of his business expenses and, therefore, he should be able to deduct that allowance instead of the actual expenses incurred.

The appellate court did not directly address the ex-husband's argument that §505(a)(3) was not an exhaustive list of deductions for calculating net income for child support. Rather, it held the per diem allowance was an inappropriate deduction in calculating net income for child support because at least some portion of the allowance may represent income. Citing a relatively recent workers' compensation case, it held to the extent the per diem allowance exceeds actual expenses, the per diem allowance is income rather than a reimbursement and is properly considered in calculating child support. The reviewing court further held the Internal Revenue Code's per diem allowance had no bearing on the issue of net income for child support. Because the allowance is available only as an itemized deduction, it does not reduce taxable income if the taxpayer does not have enough itemized deductions to surpass the standard deduction.

            Worrall — Allowed Deduction of Per Diem Business Expenses if Actual Amounts Spent Proven:  A 2002 Illinois appellate court decision addressing the business expense deduction is IRMO Worrall. Worrall, 334 Ill.App.3d 550, 778 N.E.2d 397, 268 Ill.Dec. 411 (2nd Dist. 2002) addressed whether the trial court was correct in determining the father's net income per Section 505 did not include certain per diem expenses. The father was a truck driver whose compensation consisted of his base pay plus an amount designated as per diem which was designed to cover expenses for meals and lodging while on the road.

A key ruling by the Worrall court was that:

The case law cited by the Department illustrates that the supporting parent bears the burden of establishing that a deduction applies, See e.g., In re Marriage of Minear, 181 Ill. 2d 552 (1998) (even assuming that depreciation of business assets could be deducted, supporting parent could not take the deduction because no evidence was offered to explain the claimed depreciation expense); IRMO Nelson, 297 Ill.App.3d 651 (1998), (party claiming a deduction for depreciation as a reasonable and necessary expense for the production of income was required to show that the expense was the repayment of a debt).

The appellate court commented that there is a distinction between income and a recoupment of capital. (Citing Villanueva v. O'Gara, 282 Ill.App.3d 147 (1996)). In that case the issue was what portion of the net proceeds from the settlement of a product liability lawsuit was “income” for the purpose of support modification. The holding in the case was that recoupment for disability, disfigurement, pain, suffering and reasonable past and future medical expenses do not equal income for the purpose of paying support.

Worrall stated:

It is important to recognize that Crossland did not definitively reach the question of whether amounts designated as “per diem” should be included in income for purposes of calculating child support. It was unnecessary to do so because no part of the child support obligor's pay was designated as per diem. Viewing Crossland as a whole, the limited holding of the case is that a parent owing support may not reduce his or her net income by an amount representing per diem if his or her employer does not designate any portion of his pay as “per diem.”

In a decision which was surprisingly liberal (non-strict constructionist), the Second District Worrall went on to reject the reasoning of the Crossland decision. Worrall reasoned:

However, under the trial court's rationale, supporting parents earning the same total compensation and incurring the same expenses for meals and lodging might pay different amounts of child support depending on how much of the compensation, if any, is designated a per diem. An over-the-road truck driver who does not receive any compensation designated a per diem would apparently have to the show the applicability of a specific deduction under section 505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West 2000)). This he or she might be unable to do because the only potentially applicable deduction is for "[e]xpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income." (Emphasis added.) 750 ILCS 5/505(a)(3)(h) (West 2000). See Crossland, 307 Ill. App. 3d at 294 (over-the-road trucker "concede[d] that his business travel expenses do not fall within subsection 505(a)(3)(h) of the Act because they do not constitute repayment of debt"). We see no reason why the amount of support a parent pays should depend on notations on his pay stub that are simply designed to obtain advantageous tax treatment. To permit such a result would exalt form over substance. We therefore conclude that per diem allowances for travel expenses generally constitute income for the purpose of calculating child support. This income, however, is subject to reduction to the extent that the child support payer can prove that the per diem was used for actual travel expenses and not for his or her economic gain. ***

The decision thus held:

We therefore conclude that per diem allowances for travel expenses generally constitute income for the purpose of calculating child support. This income, however, is subject to reduction to the extent that the child support payer can prove that the per diem was used for actual travel expenses and not for his or her economic gain.

The appellate court then remanded the matter for a new hearing directing the trial court to include in the father's income the entire amount of the per diem travel allowance received reduced by the amount actually used for travel expenses with the father having the burden of proving the travel expenses. As to the burden of proof, the appellate court commented that, “unless the supporting parent bears the burden of proof, he or she will have no incentive to keep records of expenses for meals and lodging; such records are not necessary for tax purposes but might be useful against the parent in a child support proceeding.”

            IRMO Tegeler, 365 Ill. App. 3d 448, 848 N.E.2d 173, 302 Ill. Dec. 173 (Second Dist., 2006), is the most recent case addressing business expenses and it is the first case to take a liberal view regarding the "debt requirement" language.  In Tegeler one of the issues was the income of the ex-husband as a farmer and whether the trial court properly calculated the ex-husband's net income consistent with the provisions of Section 505(a)(3)(h) of the IMDMA – reasonable and necessary business expenses which are for the repayment of debt. The former wife argued that the trial court should not have subtracted the ex-husband's day-to-day operating expenses when determining his net income on an income averaging basis was less than $20,000 annually. The ex-wife claimed that the father presented no evidence that such expenses went toward the repayment of debts or that they represented reasonable and necessary expenses for his income production. Interestingly, the majority sided with the Cook dissent (and partial concurrence) in Gay v. Dunlop, 279 Ill. App. 3d 140; 664 N.E.2d 88; 215 Ill. Dec. 691 (1996). In Gay v. Dunlop, the appellate court held that money spent on gas, auto repairs, and insurance premiums, and certain other expenses, should not have been subtracted, because they were not expenses for the repayment of debts. In shades of Rimkus the appellate court stated, "We believe that Gay is distinguishable from the instant case." The appellate court then quoted from the Cook dissent where he noted that Section 505(a)(3) could be "troublesome" for more traditionally self-employed people:

"It seems clear there are obvious deductions which are not listed. For example, how is net income calculated for a merchant engaged in the sale of goods? Under section 505(a)(3) the court must begin with the total of the merchant's receipts from sales. Can there be a deduction for cost of goods sold? The only listed deduction which might apply is section 505(a)(3)(h), but that seems overly restrictive. There should be a deduction for cost of goods sold even if the merchant pays cash for them, even if there is no 'repayment of debts,' and even if the expense is a continuing one. I conclude the legislature intended to allow such obvious deductions even without specific language in section 505(a)(3). In the present case, for example, [the father] was not required to include the total commissions he earned and was entitled to a credit for the share taken by Coldwell Banker, including amounts it paid for his office expenses." Gay , 279 Ill. App. 3d at 151 (Cook, J., concurring in part and dissenting in part).

The appellate court justified its decision based upon the definition of income per Rogers II, defining income as "something that comes in as an increment or addition" as well as other similar definitions. The appellate court then stated, "As respondent's wealth is increased only by his gross farm revenues minus his day-to-day operating expenses, we conclude that the trial court properly adopted respondent's use of this figure as his "income" before subtracting the deductions specifically listed in section 505(a)(3)." The appellate court further justified is decision per the Worrall decision also addressing the issue of the definition of income (in the context of the per diem expenses paid to a truck driver.) Finally, the appellate court noted the limits of the Rogers decision as to loans and stated, "We believe that, in general, loans should not be considered income... A contrary interpretation that includes loans as income would often create unjust or absurd results...."

            F.        Reasonable Expenditures for the Benefit of the Child and the Other Parent: Common expenses of this type include child care expenses, premiums for life insurance and secondary school tuition expenses.

                        1.         General Expenses for the Benefit of the Child, Exclusive of Gifts:  Money a child support payor spends on a child (exclusive of gifts) should be deductible in determining his net income. IRMO Davis, 287 Ill.App.3d 846, 223 Ill.Dec. 166, 679 N.E.2d 110 (5th Dist. 1997).

                        2.         Child Care Expenses: In IRMO Stanley, 279 Ill.App.3d 1083, 216 Ill.Dec. 890, 666 N.E.2d 340 (4th Dist. 1996), one deduction from gross income was "day care contribution", per IRMO Serna, 172 Ill.App.3d 1051, 123 Ill.Dec. 164, 527 N.E.2d 627 (4th Dist. 1988). Stanley suggests in dictum that a justification for deducting the child care contribution is subparagraph (a)(2)(h) of §505, which authorizes a deduction for "reasonable expenditures for the benefit of the child and the other parent." Child care expenses are certainly reasonable expenses for the benefit of the child and the other parent. The problem is setting child support at a dollar certain while allowing a deduction for child care expenses in determining net.

            G.        Income Averaging Cases:

Perhaps one of the most underused methods of determining income for the purpose of paying either child support or maintenance is an income averaging approach. While there is a significant body of Illinois case law which looks favorably upon averaging income in appropriate cases, many lawyers underuse this device to determine income in cases where the payor's income varies significantly.

In IRMO Nelson, 297 Ill.App.3d 651, 232 Ill.Dec. 654, 698 N.E.2d 1054 (3d Dist. 1998), the appellate court held that when child support obligor has fluctuating annual income, trial court properly determined child support by averaging obligor's net income over three consecutive years. The appellate court in Nelson commented favorably on the IRMO Freesen and IRMO Elies cases, discussed below. The Nelson three year figures were $43,000 in 1996, $74,000 in 1995 and $91,000 in 1994.

A similar ruling was regarding income averaging was made in Freesen, 275 Ill.App.3d 97, 211 Ill.Dec. 761, 655 N.E.2d 1144 (4th Dist. 1995). The Freesen court held that where there are income fluctuations it is appropriate to consider prior years of income. Freesen stated:

Income need not fluctuate wildly before it is appropriate for the trial court to consider prior years of income in determining prospective income. We also note that there is no iron-clad rule requiring a trial court to consider only the last three years of income in arriving at net income for child support purposes. At least the three prior years should be used to obtain an accurate income picture. Beyond that, however, it must be left to the discretion of the trial court, as facts will vary in each case. While a court should not base net income findings upon the mere possibility of future financial resources, neither should it rely upon outdated information which no longer reflects prospective income.

At least three prior years of income should be used. It is suggested that Freesen represents a trend to consider an income averaging approach, whereas prior case law suggested the use of such an approach should be limited to very unusual circumstances. In Elies, 248 Ill.App.3d 1052, 188 Ill.Dec. 364, 618 N.E.2d 934 (1st Dist., 6th Div. 1993), the appellate court affirmed an award of child support based upon 3 year averaging where the income fluctuated significantly and reliability was not disputed. Finally, IRMO Schroeder, 215 Ill.App.3d 156, 158 Ill.Dec. 721, 574 N.E.2d 834 (4th Dist. 1991), held that deviations from current reliable current income data require a compelling showing of a definitive pattern of economic reversals.

The 1992 case of In re Marriage of Carpel also involved income averaging, but that case does not establish clear income averaging guidelines. It appeared Carpel was a three year averaging award in a case involving a lawyer. Carpel stated:

In a case such as this, the trial court should consider the supporting parent's previous income when trying to determine his prospective income. However, a court should not base its net income finding on the mere possibility of future financial resources (Harmon, 210 Ill. App. 3d at 96, 154 Ill. Dec. at 730, 568 N.E.2d at 951) or on outdated data that no longer reflect prospective income. (In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 161-62, 158 Ill. Dec. 721, 724-25, 574 N.E.2d 834, 837-38.)”

IRMO DiFatta, 306 Ill.App.3d 656, 239 Ill.Dec. 795, 714 N.E.2d 1092 (2d Dist. 1999), presented a new wrinkle regarding the income averaging cases. DiFatta held that where child support obligor is paid by the hour and his average hours of employment fluctuate significantly from year to year, a court may average the number of hours worked for the past ten years in determining net income for child support purposes. The DiFatta court approved the trial court's income averaging for ten years. That is a long time and sets an Illinois court of review record for the number of years for which a court can income average. The danger of following the DeFatta approach is in modifying support. If a period of ten years average earnings are used in setting support, it is more difficult to determine what would be sufficient for their to be a substantial change in circumstances.

A 2003 income averaging case is IRMO Garrett, 336 Ill.App.3d 1018, 785 N.E.2d 172, 271 Ill.Dec. 521 (Fifth Dist., 2003) where the appellate court approved income averaging where the average gross income was $214,000 without deviating from the guidelines.  More specifically, the appellate court approved of income averaging for three years approved despite having no broad fluctuation in annual incomes. (The appellate court found the husband's 1998 net income of $240,034, 1999 income of $237,897 and 2000 income of $164,836 “varied significantly from year to year.”)

A recent income averaging case is IRMO Hubbs, 363 Ill. App. 3d 696, 843 N.E.2d 478, 300 Ill. Dec. 220 (Fifth Dist., 2006).  The new development of this case is the application of income averaging when income from new employment is uncertain and where an element of the case involves imputing income based upon a decision to take a job with more speculation as to commissions versus a job with a certain income.  The appellate court held that the trial court did not err in imputing to the husband a base gross income of $115,000 (based upon an average of the past three years of his previous employment.) In addition, the husband was required to pay 13% of the gross income above this amount. The husband urged that the trial court erred in imputing income to him based upon his previous employment. On the income averaging issue the appellate court stated:

Where it is difficult to ascertain the net income of a noncustodial spouse, the circuit court may consider past earnings in determining the noncustodial spouse's net income for purposes of making a child support award. IRMO Karonis, 296 Ill. App. 3d 86, 92 (1998). Using an average income for the previous three years of employment is a reasonable method for determining net income where income has fluctuated widely from year to year. IRMO Nelson, 297 Ill. App. 3d 651, 655 (1998).

What is interesting is that in Hubbs there was income averaging based upon a past job in light of the uncertain nature of the income from the current job. In the husband's current job, his ultimate income would be based upon commissions. He received an advance of $7,500 monthly and these advances were loans which would then have to be repaid from commissions. The husband was responsible for all expenses related to the production of his income. The husband urged that the trial court should have determined his net income to be $2,367 per month. The appellate court applied the facts of the case to its decision as follows:

Mark's income for the previous three years was $133,000, $114,009, and $169,319, respectively. Mark also testified that he had recently rejected a job offer that would have paid him a salary of $120,000 a year. We believe that based on the evidence in this case, the circuit court acted properly in imputing Mark's gross income at $115,000. This figure is slightly below his average income for the previous three years and slightly below a salary that he could have earned had he accepted another position. Although the circuit court could have required Mark to pay a percentage of his net income to Peggy, we believe that it acted properly in determining gross income to be $115,000.

These cases break down as follows:

• Three year averaging OK even where income does not fluctuate wildly - Freesen and Hubbs
• Three year averaging OK where income fluctuates significantly - Elies and Nelson and Garrett
• Three years averaging of past job acceptable where new employment is uncertain -- and averaging is acceptable with percentage over average when the average is conservative and a significant factor is imputing income.
• Six year weighted average improper. - Schroeder
• 10 years averaging of hours worked permissible when hours fluctuate significantly. DiFatta.

            H.        One Time Income: The case law regarding non-recurring income had been that the court has discretion whether to consider such income in determining child support. For example, in IRMO Miller, 231 Ill.App.3d 481, 172 Ill.Dec. 679, 595 N.E.2d 1349 (3d Dist. 1992), the appellate court held that:

While nonrecurring income may properly be included in calculating net income for purposes of child support (IRMO Hart (1990), 194 Ill.App.3d 839, 551 N.E.2d 737), this is not an inflexible rule, and the trial court has the discretion to exclude such income. To hold otherwise could lead to absurd results, as where a party's income is artificially inflated by a large capital gain on the sale of a residence. We believe that such determinations are best left to the sound discretion of the trial court.

Another significant case regarding one time income is IRMO Freesen, 275 Ill.App.3d 97, 211 Ill.Dec. 761, 655 N.E.2d 1144 (4th Dist. 1995). Freesen is one of the cases addressing the income averaging topic (three years income averaging permissible). It also is a significant support case addressing passive income. The Freesen court ruled that the trial court did not err in deducting from the father's income the passive income he received from his employer, basing its ruling on the case of IRMO Harmon, 210 Ill.App.3d 92, 154 Ill.Dec. 727, 568 N.E.2d 948 (2d Dist. 1991), Gitlin on Divorce Reports, No. 91-32, where the Second District held that "when the unrefuted testimony is that the party does not actually receive the income from such a passive source, regardless of whether it is reported for Federal income tax purposes, it is not error for the trial court to refuse to consider the additional reported amounts when calculating net income." Harmon was a case in which the appellate court affirmed the trial court's refusal to consider the non-custodial mother's income from bonds and securities. Regarding passive income, although the opinion did not provide the details, apparently some of the additional income the mother received, she reported on her income tax returns as being received from passive sources which in fact she did not actually receive.

In 2004, I wrote: “Illinois family lawyers should keep a close watch on the Supreme Court’s review of the IRMO Rogers, 345 Ill.App.3d 77, 280 Ill.Dec. 726, 802 N.E.2d 1247 (1st Dist., 4th Div. 2003) decision as to whether gifts and loans constitute income. Rogers (like Collingbourne) is now one of the seminal Illinois family law decisions.

The divorced father in Rogers earned only $15,000 annually from his teaching position. The trial court set his support obligation at $250 monthly. The mother appealed and argued that the trial court should have determined that his income was substantially higher because the father had received $46,000 in gifts and loans every year of the father’s adult life. Including those gifts and loans the mother urged that the father’s income was $61,000 not the $15,000 the father claimed. The ex-husband urged that consistent with In re Marriage of Harmon, 210 Ill. App. 3d 92, 568 N.E.2d 948, 154 Ill. Dec. 727 (1991) an annual gift of $10,000 should not be considered where there is uncertainty the gift would be received in the future.

The Rogers Supreme Court decisions, 213, Ill.2d 129, 820 N.E.2d 286 (2004), represents a water-shed for Illinois divorce lawyers. The Supreme Court noted that the first step in determining net income is to determine the ‘total of all income from all sources.’ The Supreme Court then stated:

As the word itself suggests, "income" is simply "something that comes in as an increment or addition ***: a gain or recurrent benefit that is usually measured in money ***: the value of goods and services received by an individual in a given period of time." Webster's Third New International Dictionary 1143 (1986). It has likewise been defined as "[t]he money or other form of payment that one receives, usually periodically, from employment, business, investments, royalties, gifts and the like." Black's Law Dictionary 778 (8th ed. 2004).

Under these definitions, a variety of payments will qualify as "income" for purposes of section 505(a)(3) of the Act that would not be taxable as income under the Internal Revenue Code... Based on the foregoing principles, we conclude, as the appellate court did, that the circuit court was correct to include as part of the father's "income" the annual gifts he received from his parents... They represented a valuable benefit to the father that enhanced his wealth and facilitated his ability to support Dylan.

Regarding the argument that consideration of future receipts of gifts and loans constitutes speculation, the Supreme Court stated:

Few, if any, sources of income are certain to continue unchanged year in and year out. People can lose their jobs, interest rates can fall, business conditions can wipe out profits and dividends. Accordingly, the relevant focus under section 505 is the parent's economic situation at the time the child support calculations are made by the court. If a parent has received payments that would otherwise qualify as "income" under the statute, nothing in the law permits those payments to be excluded from consideration merely because like payments might not be forthcoming in the future. As our appellate court has held, "the Act does not provide for a deduction of nonrecurring income in calculating net income for purposes of child support." In re Marriage of Hart, 194 Ill. App. 3d 839, 850 (1990).

The Supreme Court, however, allowed an out when it noted that, “the nonrecurring nature of an income stream is not irrelevant.” It then reasoned:

Recurring or not, the income must be included by the circuit court in the first instance when it computes a parent's "net income" and applies the statutory guidelines for determining the minimum amount of support due under section 505(a)(1) of the Act. If, however, the evidence shows that a parent is unlikely to continue receiving certain payments in the future, the circuit court may consider that fact when determining, under section 505(a)(2) of the Act (750 ILCS 5/505(a)(2) (West 2002)), whether, and to what extent, deviation from the statutory support guidelines is warranted. Moreover, if the payments should stop earlier than anticipated by the court, the parent obligated to provide support based on those payments may seek modification of the support order pursuant to section 510 of the Act

The case law in following Rogers, has been far less generous in terms of whether income should be considered as non-recurring.  An example of a bad case potentially making bad law in this regard is the Second District's 2005 IRMO Lindman, decision, 824 N.E.2d 1219, 356 Ill.App.3d 462, 291 Ill.Dec. 969 (2d Dist. 2005).

Lindman held that the trial court did not err when it refused to grant petitioner’s petition to reduce child support because he lost his job and was receiving distributions of IRA awarded him in dissolution proceeding, because the distributions from his IRA were properly considered “income” within definition of Section 503of IMDMA, therefore making his net income greater than it was when child support was set. Significant factors in the trial court's award were the fact that the ex-husband lost his job due to alcohol abuse and that at the time of the divorce, he earned approximately $80,000 annually while the two years immediately before filing his petition for modification (2000 and 2001), the ex-husband had a gross income of $160,000 and $100,000, respectively. Lindman contains several quotes establishing the comprehensive sweep of what constitutes income for support purposes:

Consistent with the above understanding, Illinois courts have concluded that, for purposes of calculating child support, net income includes such items as a lump-sum worker's compensation award (In re Marriage of Dodds, 222 Ill. App. 3d 99 (1991)), a military allowance (In re Marriage of McGowan, 265 Ill. App. 3d 976 (1994)), an employee's deferred compensation (Posey v. Tate, 275 Ill. App. 3d 822 (1995)), and even the proceeds from a firefighter's pension (People ex rel. Myers v. Kidd, 308 Ill. App. 3d 593 (1999)).

We see no reason to distinguish IRA disbursements from these items. Like all of these items, IRA disbursements are a gain that may be measured in monetary form. Rogers, slip op. at 5. Moreover, IRA disbursements are monies received from an investment, that is, an investment in an IRA. See Black's Law Dictionary 789 (8th ed. 2004); see also http://www.investorwords.com/2641/IRA.html (last visited December 22, 2004) (defining an "IRA" as "[a] tax-deferred retirement account for an individual *** with earnings tax-deferred until withdrawals begin"). Thus, given its plain and ordinary meaning, "income" includes IRA disbursements.

Next, the court addressed the ex-husband's other arguments including the argument that the IRA distributions were non-recurring.  The Lindman appellate court was very clear as to the limitations of the opinion in terms of applying an abuse of discretion standard:

Thus, consideration of these arguments requires us to determine only whether the circuit court's net income calculations and its resulting refusal to modify petitioner's child support obligation amounted to an abuse of discretion. In re Marriage of Schacht, 343 Ill. App. 3d 348, 352 (2003). "A trial court abuses its discretion only when its ruling is ' " 'arbitrary, fanciful or unreasonable' " or " 'where no reasonable man would take the view adopted by the trial court.' " ' [Citations.]" With that in mind, we take petitioner's arguments in turn.

The Lindman court next stated: 

To begin with, "the Act does not provide for a deduction of nonrecurring income in calculating net income for purposes of child support." In re Marriage of Hart, 194 Ill. App. 3d 839, 850 (1990). Thus, if we were to conclude that such income is, by virtue of its lack of regularity, excluded from the net income calculation, we would read into the plain language of the statute limitations and conditions not expressed by the legislature. And there is a further problem with petitioner's theory. It presumes that the net income inquiry is concerned with what a parent's income will be at some time after the child support determination is made. It is not. Rather, the net income inquiry focuses on a parent's income at the time the determination is made. Should that income later change, the Act allows a parent to petition for modification of the support order. 750 ILCS 5/510 (West 2002). Indeed, that is precisely what petitioner did here. But what the Act does not do is allow the possibility of more or less income in the future to determine whether the parent will pay more or less child support today.

It is noteworthy that the language in the November 2004 Rogers Supreme Court decision is more limited as to the non-recurring income issue.  Lindman quoted from Rogers:

As the supreme court has said:

"Few, if any, sources of income are certain to continue unchanged year in and year out. People can lose their jobs, interest rates can fall, business conditions can wipe out profits and dividends. Accordingly, the relevant focus under section 505 is the parent's economic situation at the time the child support calculations are made by the court. If a parent has received payments that would otherwise qualify as 'income' under the statute, nothing in the law permits those payments to be excluded from consideration merely because like payments might not be forthcoming in the future." Rogers, slip op. at 7.

            I.         Deviations from the Support Guidelines:

            There are three lines of case law which are commonly addressed in the deviation cases: 1) cases where there is equal or nearly equal parenting time for each party; 2) cases where the payor is in the high income category; 3) cases whether custody of the children is split. The split custody cases will be addressed in my outline regarding rules of thumb in divorce cases.

                        1.        Deviations In Cases with Extensive Parenting Time:

A case that is often taken out of context for the proposition that the trial court should not consider extensive parenting time to the non-residential parent as a possible deviation factor is IRMO DeMattia, 302 Ill.App.3d 390, 235 Ill.Dec. 807, 706 N.E.2d 67 (4th Dist. 1999), GDR 99-22. The DeMattia court, however, only affirmed the refusal of the trial court to deviate downward from minimum statutory child support guidelines; although father had extensive visitation. The Fourth District court held that the payor was not entitled to automatic child support reduction.

The appellate court expressed that it was not making a broad-based rule about downward deviations from the minimum child support guidelines:

We do not suggest a trial court could never deviate downward from the guidelines based on the noncustodial parent's extended provision of care for his or her children. We do not seek to discourage noncustodial parents from having substantial contact with their children. The benefit a noncustodial parent receives from having substantial involvement with his or her children cannot be measured by dollars. There should not be an automatic deduction in child support because a noncustodial parent has the opportunity to spend substantial time with the children and fulfill a parental responsibility. Caring for one's own children is not day care nor is it a chore for which to be compensated. Our decision is not a criticism of [the husband] for asking this interesting question, but we decline the invitation to add a new layer of complexity to custody and support decisions. Our decision is limited to the facts in this case. (Emphasis in original.)

A case somewhat contrary to DeMattia is IRMO Reppen-Sonneson, 299 Ill.App.3d 691, 233 Ill.Dec. 885, 701 N.E.2d 1159 (2d Dist. 1998). It held that the trial court not obligated to rely on statutory guidelines where parents equally shared custody of children. Child support by husband to wife below statutory guidelines was affirmed. In Reppen-Sonneson, the husband was required to pay 15% of his net income for support of three children. The appellate court stated:

The parties agreed to share in the legal and physical custody of their three children. Because both parents share the custody of the children, the trial court was not obligated to rely on the statutory guidelines. In this case, only [the father] was ordered to pay $75 per week in child support. In addition to providing the sole support, [the father] pays the children's health insurance and 75% of any extraordinary medical expenses such as orthodontia. [The father] has just as much responsibility in caring for the children as [the mother]. We do not find that the court abused its discretion.

Child Support to Visiting Parent: In IRMO Cesaretti, 203 Ill.App.3d 347, 149 Ill.Dec. 28, 561 N.E.2d 306 (2d Dist. 1990), the court held that where parties share parenting time relatively equally, the trial court did not err in requiring the custodial parent to pay child support to the non-custodial parent in view of the disparity in parties' incomes. In Cesaretti the husband urged that once legal and physical custody is placed in one parent, the custodial parent has no obligation to pay support to the non-custodial parent. The appellate court rejected the husband's argument, noting that while the trial court had awarded husband temporary custody, the child neverthele