{ "id": 2962618, "name": "In re MARRIAGE OF SHERYL LYNN IMLAY, Petitioner-Appellee, and LARRY ALVIN IMLAY, Respondent-Appellant", "name_abbreviation": "In re Marriage of Imlay", "decision_date": "1993-09-30", "docket_number": "No. 4\u201492\u20141001", "first_page": "138", "last_page": "143", "citations": [ { "type": "official", "cite": "251 Ill. App. 3d 138" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "461 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "1030" }, { "page": "1031" }, { "page": "1031" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2501087 ], "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0243-01" ] }, { "cite": "483 N.E.2d 1229", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1233" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129637 ], "year": 1990, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0286-01" ] } ], "analysis": { "cardinality": 638, "char_count": 12615, "ocr_confidence": 0.793, "pagerank": { "raw": 1.2592899940233254e-07, "percentile": 0.6120912840864468 }, "sha256": "a2c8e8d3519b6812403fd66b684533f74671a9e707c9f63157d0ee425387161d", "simhash": "1:93adb1c66fc5cce7", "word_count": 2009 }, "last_updated": "2023-07-14T16:22:05.264174+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF SHERYL LYNN IMLAY, Petitioner-Appellee, and LARRY ALVIN IMLAY, Respondent-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nRespondent, Larry Imlay, appeals from the November 1992 order of the trial court which denied his petition to modify his child support and educational expense obligations because he had been fired from his job. The court found \u201cthat [Respondent\u2019s loss of employment was not fortuitous, but instead, was the result of deliberate conduct on [his] part which jeopardized his children\u2019s interests.\u201d The sole question this case presents is whether respondent\u2019s discharge from his employment for nonperformance constitutes sufficient grounds to deny his petition to reduce his support and educational obligation. We hold that it does and affirm.\nI. Background\nThe parties\u2019 marriage was dissolved in July 1987, and petitioner was granted custody of their three minor children. Thereafter, the trial court entered a series of temporary support orders based on respondent\u2019s employment status until December 1988, when the court entered a permanent support order requiring respondent to pay 32% of his net employment income as support for the children. In June 1991, the court entered an agreed order providing that respondent make monthly payments of $1,010 per month \u2014 $516 in child support for the minor living at home, and $494 as respondent\u2019s share of the educational and maintenance expenses of the two children pursuing a college education. The court also ordered respondent to pay an additional $50 per month on a $3,450 arrearage.\nIn August 1992, respondent filed a petition to modify his support obligation. At the October 1992 hearing on that petition, respondent testified that on September 3, 1992, he had been terminated from his employment as an outside salesman for Nationwide Papers. He had sold paper products for Nationwide by calling on customers both in person and by telephone in a multi-county area extending from Peoria to Danville and from Rantoul to Carbondale. In December 1991, defendant was convicted of drunk driving (DUI), and his driver\u2019s license was revoked. Subsequently, he continued to call on his customers by telephone. He also had his present wife drive him to make personal calls on several occasions.\nBeginning in June 1992, respondent\u2019s immediate supervisor talked to respondent about his failure to meet his sales goals and about his customers\u2019 complaining of infrequent personal service and communication. In August 1992, an account comprising 50% of respondent\u2019s commissions was reassigned to another salesman because of the customer\u2019s complaint of respondent\u2019s lack of contact and attention to detail. Nationwide subsequently discharged respondent in September 1992 based on his nonperformance.\nAt the conclusion of the October 1992 hearing, the trial court took the matter under advisement. In November 1992, the court entered a written order denying respondent\u2019s request for modification of the June 1991 support order. The court explained its ruling as follows:\n\u201cRespondent bases his request that the Court modify his child support obligation and his obligation to contribute to the college education of the parties\u2019 two oldest children on the loss of his employment as an outside salesman for Champion International-Nationwide Papers. The Court finds, however, that Respondent\u2019s loss of employment was not fortuitous, but instead, was the result of deliberate conduct on Respondent\u2019s part which jeopardized his children's interests. Notwithstanding his employment as an outside salesman, which required extensive use of an automobile, Respondent was convicted of DUI which resulted in the revocation of his driver\u2019s license. This led to his being fired based, in substantial part, on complaints from his customers that their accounts were not being properly serviced. Respondent\u2019s request that the Court enter an order modifying his child support obligation and his obligation to contribute to the college expenses of the parties\u2019 two oldest children is denied.\u201d\nII. Analysis\nThe decision to either grant or deny a petition to modify an award for child support or educational expense lies within the sound discretion of the trial court, and this court will not disturb the trial court\u2019s decision on appeal absent an abuse of discretion. (See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Korte (1990), 193 Ill. App. 3d 243, 250, 549 N.E.2d 906, 911.) In determining whether to reduce an order of child support, the trial court may appropriately consider any substantial economic reversal resulting from a change in employment. (In re Marriage of Donovan (1984), 122 Ill. App. 3d 803, 805, 462 N.E.2d 9, 11; In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 1017, 481 N.E.2d 765, 767.) However, the party seeking a reduction must show good faith for voluntarily changing his employment. Chenoweth, 134 Ill. App. 3d at 1018, 481 N.E.2d at 767.\nRespondent contends that the trial court erred in denying his request to modify his support payments because (1) he did not voluntarily lose his employment, and (2) the record contains no evidence showing either his lack of good faith or that he somehow caused his job termination because he was motivated by a desire to evade financial responsibility for his children. (See In re Marriage of Kowski (1984), 123 Ill. App. 3d 811, 814, 463 N.E.2d 840, 843 (a voluntary change in employment made in good faith may warrant modification of support; however, good faith is not shown where the change in employment has been prompted by a desire to evade financial responsibilities).) He asserts that the continuance of his at-will employment was not a condition within his control and that Nationwide\u2019s assessment of \u201cnonperformance\u201d was measured against arbitrary goals of sales and account servicing. He also argues that when, as here, the record contains no affirmative acts of on-the-job misconduct (such as insubordination, absenteeism, or substance abuse), the trial court cannot properly deem his employment termination for \u201cnonperformance\u201d as voluntary. Last, he asserts that the absence of evidence showing a desire to evade his support obligation or jeopardize his children\u2019s interests prompted his loss of employment demonstrates that the court erred in finding that his job loss was occasioned by his lack of good faith. We do not find respondent\u2019s arguments persuasive.\nWhether respondent\u2019s conduct leading to the loss of his employment constituted acts of commission or omission, we find the evidence was sufficient to allow the trial court to conclude that his conduct was deliberate and his discharge was not merely a fortuitous occurrence. Nationwide had employed respondent as an outside salesman for three years prior to his discharge, and the sales goals set for his territory were those he himself had projected when he was hired. His supervisor testified that respondent could have continued in his employment had he made the effort required of a sales representative, and respondent admitted that following the loss of his driver\u2019s license, he had not called on his customers as he should have. Respondent\u2019s driving drunk, which resulted in his DUI conviction, adversely \u2014 and foreseeably so \u2014 affected his ability to make in-person calls on his customers. However, we also note that respondent\u2019s job performance (as shown by customers\u2019 complaints) suffered because of his failure to maintain sufficient telephone contact with his customers or to simply return phone calls \u2014 failures unrelated to his restricted mobility after his DUI conviction. The evidence does not suggest Nationwide fired respondent for reasons beyond his control. Thus, under these circumstances, we hold that the trial court could properly view his change of employment as \u201cvoluntary.\u201d\nA party who voluntarily changes employment resulting in a reduced income and seeks to modify a support obligation must show the employment change was made in good faith. See In re Marriage of Mitteer (1993), 241 Ill. App. 3d 217, 608 N.E.2d 607 (both the lack of evidence that a four-year degree was necessary to secure respondent\u2019s future in his chosen career and the existence of and failure to pay an arrearage had a bearing on respondent\u2019s good faith in seeking an abatement of child support); In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751 (respondent\u2019s good-faith decision to reduce his hours of employment in order to return to school justified modification of support order from $150 to $125 per month); In re Marriage of Lyons (1987), 155 Ill. App. 3d 300, 304-05, 508 N.E.2d 458, 461-62 (job change allegedly prompted by injury was not made in good faith and instead was a deliberate attempt to evade support obligations where respondent was able to perform his former work); In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 700-01, 460 N.E.2d 1, 3 (denial of modification of maintenance affirmed where change in economic conditions was voluntary and the result of deliberate action; respondent resigned from his job over five months prior to the expiration of his term of employment); Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790 (order denying modification of support order vacated where respondent\u2019s decision to quit his job to attend law school was made in good faith and not prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests).\nMoreover, respondent here may not shift his burden of proof on this matter to petitioner. The party petitioning for modification must carry the burden of showing his changed employment status was made in good faith. In other words, the party seeking the modification must present evidence of a motive \u2014 other than evasion of financial responsibility for the support of his children \u2014 in support of the petition for modification. (See Lyons, 155 Ill. App. 3d at 305, 508 N.E.2d at 462; Chenoweth, 134 Ill. App. 3d at 1018, 481 N.E.2d at 767; In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243, 1245.) While proof that respondent had a motive to evade financial responsibility for the support of his children may defeat a showing of good faith, the converse is not true \u2014 the absence of such evidence does not, without more, establish respondent\u2019s good faith. Here, the record contains no evidence of a good-faith motive for respondent\u2019s loss of employment.\nRespondent argues that the decision in Cohn v. Cohn (1984), 122 Ill. App. 3d 763, 461 N.E.2d 1028, supports his argument, but we disagree. In Cohn, respondent, a striking union member, defied a presidential order to return to work and was terminated from his employment with the Federal Aviation Administration. The trial court denied the respondent\u2019s petition for modification of child-support payments, finding his loss of employment a voluntary act without good faith done in conscious disregard for his children\u2019s rights. (Cohn, 122 Ill. App. 3d at 765, 461 N.E.2d at 1030.) Respondent appealed, and the appellate court found that the trial court had failed to consider respondent\u2019s good-faith motives for participation in the strike. (Cohn, 122 Ill. App. 3d at 766, 461 N.E.2d at 1031.) The court noted that respondent, a rank and file member of the union, was motivated to participate in the strike by peer pressure and a desire to increase his salary and improve his working conditions, the same goals which had prompted successful union action in the past. (Cohn, 122 Ill. App. 3d at 766, 461 N.E.2d at 1031.) In contrast to Cohn, respondent\u2019s actions here in failing to service his accounts and his sales territory cannot similarly be viewed as motivated by efforts to improve his employment status.\nThe record here supports the trial court\u2019s exercise of its discretion in denying respondent\u2019s petition to modify his support obligation. We cannot conclude on this record that the trial court was required to reduce respondent\u2019s support or educational expense obligations merely because he lost his job.\nIII. Conclusion\nFor the reasons stated, we affirm the order of the circuit court denying the petition for modification.\nAffirmed.\nMcCULLOUGH and GREEN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Holly W. Jordan (argued), of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellant.", "Glenn A. Stanko (argued), of Reno, O\u2019Byrne & Kepley, P.C., of Champaign, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF SHERYL LYNN IMLAY, Petitioner-Appellee, and LARRY ALVIN IMLAY, Respondent-Appellant.\nFourth District\nNo. 4\u201492\u20141001\nArgued June 17, 1993. \u2014\nOpinion filed September 30, 1993.\nHolly W. Jordan (argued), of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellant.\nGlenn A. Stanko (argued), of Reno, O\u2019Byrne & Kepley, P.C., of Champaign, for appellee." }, "file_name": "0138-01", "first_page_order": 158, "last_page_order": 163 }