{ "id": 521901, "name": "In re MARRIAGE OF ROXANN WORRALL, Petitioner, and RAYMOND WORRALL, Respondent-Appellee (The Department of Public Aid, Appellant)", "name_abbreviation": "In re Marriage of Worrall", "decision_date": "2002-10-18", "docket_number": "No. 2\u201401\u20140786", "first_page": "550", "last_page": "556", "citations": [ { "type": "official", "cite": "334 Ill. App. 3d 550" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "266 Ill. App. 3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887236 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0163-01" ] }, { "cite": "298 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073551 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0666-01" ] }, { "cite": "307 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173525 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "295" }, { "page": "295" }, { "page": "294", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0292-01" ] }, { "cite": "282 Ill. App. 3d 147", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159565 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "150" }, { "page": "150" }, { "page": "150-51" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0147-01" ] }, { "cite": "42 I.R.B. 332", "category": "reporters:federal", "reporter": "I.R.B.", "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 651", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910254 ], "year": 1998, "pin_cites": [ { "page": "656", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0651-01" ] }, { "cite": "181 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821411 ], "year": 1998, "pin_cites": [ { "page": "560", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0552-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 736, "char_count": 14768, "ocr_confidence": 0.737, "pagerank": { "raw": 8.429031741437619e-08, "percentile": 0.4838560085935512 }, "sha256": "f2bd5492ab2aad10af057ecf24e4748d71c492bd6d269bbe7a67e48b0b6db7a6", "simhash": "1:89cab5f4286abcd4", "word_count": 2386 }, "last_updated": "2023-07-14T19:16:41.005109+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF ROXANN WORRALL, Petitioner, and RAYMOND WORRALL, Respondent-Appellee (The Department of Public Aid, Appellant)." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nThe Illinois Department of Public Aid (Department) appeals from an order of the circuit court of Du Page County denying its petition to increase the child support paid by respondent, Raymond Worrall, to petitioner, Roxann Worrall. We reverse that order and remand the cause for further proceedings.\nOn January 19, 1995, the circuit court of Du Page County entered a judgment dissolving the parties\u2019 marriage. The parties had two minor children and respondent was initially ordered to pay $66 per week in child support. On October 23, 1995, the Illinois Department of Public Aid (Department) entered an appearance and on June 26, 1996, an agreed order was entered increasing the child support to $115 per week.\nOn March 24, 2000, the Department filed a petition to increase respondent\u2019s child support, alleging a substantial change in circumstances (see 750 ILCS 5/510(a)(l) (West 2000)) in that both respondent\u2019s income and the children\u2019s needs had substantially increased. The petition alternatively sought to increase child support based on an inconsistency of at least 20% between the amount of the existing order and the amount of support that would result from the application of the guidelines. See 750 ILCS 5/510(a)(2)(A) (West 2000).\nThe evidence at the hearing on the Department\u2019s petition established that respondent was employed as an over-the-road truck driver and his compensation consists of his base pay and an amount designated a \u201cper diem,\u201d which is designed to cover expenses for meals and lodging while on the road. For instance, for the period from March 18, 2001, to March 24, 2001, respondent received base pay of $1,067 and a $457 per diem. Respondent testified that while on the road, he sleeps in his truck, but he incurs expenses to pay for showers. With reference to the per diem, respondent testified, \u201cI get so much a night to sleep in the truck from the government.\u201d The trial court excluded the per diem from respondent\u2019s income for purposes of deciding the Department\u2019s petition. The trial court calculated respondent\u2019s income by averaging his income for the years 1998, 1999, and 2000, and his projected income for 2001, resulting in an income of $34,988. The court stated as follows:\n\u201cSuch an income places [respondent] in the 28 percent tax bracket, *** 25 percent Fed, three percent for the State, which under section 505 results in an average net income of $25,192.\u201d\nThis figure yielded guideline support in the amount of $121. The trial court concluded that the increase in respondent\u2019s income was insufficient to mandate increasing his child support obligation. Accordingly the trial court denied the Department\u2019s petition. The Department brought this appeal.\nThe sole issue raised on appeal is whether the trial court erred in excluding the per diem from respondent\u2019s income for purposes of calculating child support. We initially note that respondent has not filed an appellate brief. Nonetheless, this appeal is amenable to a decision on the merits under the principles of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).\nSection 505 of the Act (750 ILCS 5/505 (West 2000)) governs awards of child support in dissolution of marriage proceedings. Section 505(a)(1) establishes guidelines to determine the minimum amount of support. Guideline support is expressed as a percentage of the supporting parent\u2019s net income and the percentage varies with the number of children being supported. 750 ILCS 5/505(a)(l) (West 2000). Here, respondent is obligated to support two children. The guideline support amount for two children is 25% of the supporting parent\u2019s net income. 750 ILCS 5/505(a)(l) (West 2000). The trial court must award the guideline amount unless the court: (1) makes a finding, after considering the best interests of the child, that the application of the guidelines would be inappropriate; (2) states the amount of support that would have been required under the guidelines, if determinable; and (3) indicates the reason or reasons for the variance from the guidelines. 750 ILCS 5/505(a)(2) (West 2000).\nFor purposes of determining the guideline amount, \u201c \u2018Net income\u2019 is defined as the total of all income from all sources\u201d minus deductions for federal and state income taxes (properly calculated withholding or estimated payments), social security, mandatory retirement contributions, union dues, dependent and individual health/ hospitalization premiums, prior support or maintenance obligations, and, of significance here, \u201cExpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.\u201d 750 ILCS 5/505(a)(3) (West 2000). 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, 560 (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); In re Marriage of Nelson, 297 Ill. App. 3d 651, 656 (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).\nUnder federal law, when an over-the-road truck driver\u2019s employer pays a per diem allowance for meals and lodging that meets certain requirements, the recipient may take a federal income tax deduction in that amount without substantiating actual expenses. See generally Rev. Proc. 2001 \u2014 47, 2001 \u2014 42 I.R.B. 332. The amount designated a per diem does not necessarily correspond to any actual deductible expenses; the recipient may spend the money as he or she sees fit. At issue here is whether a portion of a child support obligor\u2019s compensation designated a per diem constitutes income for purposes of setting child support.\nWe have observed, \u201c \u2018Income\u2019 represents a \u2018gain or profit\u2019 [citation] and is \u2018ordinarily understood to be a return on the investment of labor or capital, thereby increasing the wealth of the recipient\u2019 [citations].\u201d Villanueva v. O\u2019Gara, 282 Ill. App. 3d 147, 150 (1996). We have further noted that there is a distinction between income and the recoupment of capital. Villanueva, 282 Ill. App. 3d at 150. The issue in Villanueva was whether, or what portion of, the net proceeds from the settlement of a product liability lawsuit constituted \u201cincome\u201d for purposes of modifying child support. We held that to the extent the settlement compensated the recipient for disability, disfigurement, pain, suffering, and reasonable past and future medical expenses, it did not constitute income; those portions of the award served to restore the status quo prior to his injury, but did not make him richer. Villanueva, 282 Ill. App. 3d at 150-51. However, we held that the portion of the settlement representing past and future lost earnings should be considered income for child support purposes. Villanueva, 282 Ill. App. 3d at 151.\nIn In re Marriage of Crossland, 307 Ill. App. 3d 292 (1999), an over-the-road truck driver argued that, in determining his income for child support purposes, the court should allow him to take a $36-per-day deduction permitted by the Internal Revenue Service. The truck driver\u2019s employer did not designate any part of his compensation as a per diem. The Crossland court noted that in the workers\u2019 compensation setting, it had been held that \u201cpayments to over-the-road truck drivers, designated by employers as \u2018reimbursement,\u2019 constitute \u2018wages\u2019 to the extent that the payments represent real economic gain rather than actual reimbursement for travel purposes.\u201d Crossland, 307 Ill. App. 3d at 295, citing Swearingen v. Industrial Comm\u2019n, 298 Ill. App. 3d 666 (1998). The Crossland court observed that \u201c[although the definition of \u2018wages\u2019 for purposes of establishing workers\u2019 compensation benefits is not coextensive with the concept of \u2018net income\u2019 for purposes of child support awards, we believe Swearingen\u2019s rationale is instructive.\u201d Crossland, 307 Ill. App. 3d at 295.\nIt is important to recognize that the Crossland court did not definitively reach the question of whether amounts properly designated a \u201cper diem\u201d 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\u2019s pay was designated as a 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 income by an amount representing a per diem if his or her employer does not designate any portion of his pay as a \u201cper diem.\u201d\nRelying on Crossland, the trial court in this case ruled that the per diem represented income only to the extent that it exceeded actual expenses and that the burden to prove the excess should be on the Department. This ruling misapprehends Crossland\u2019s limited holding described above. In our view, the designation of a portion of respondent\u2019s pay as a per diem has no bearing on the economic reality of respondent\u2019s compensation. Respondent is free to use that sum along with the rest of his compensation however he sees fit. Except for the tax benefits, he is in essentially the same position, from an economic standpoint, as he would have been if he received the same amount of pay without any portion designated a per diem. However, under the trial court\u2019s 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 \u201cExpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.\u201d (Emphasis added.) 750 ILCS 5/505(a)(3)(h) (West 2000). See Crossland, 307 Ill. App. 3d at 294 (over-the-road trucker \u201cconcede[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\u201d). 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.\nWe note that Villanueva, discussed earlier, does not require a different result. In that case there was no question that part of the settlement paid to a child support obligor was compensation for an injury actually suffered. Here, respondent\u2019s per diem was only nominally for meals and lodging; in actuality respondent could use the money for whatever purpose he chose.\nGeneral burden-of-proof principles and public policy considerations support our conclusion. In Snyder v. Ambrose, 266 Ill. App. 3d 163, 166 (1994), this court observed:\n\u201cIt is well recognized in this State that the burden of producing evidence chiefly, if not entirely, within the control of an adverse party rests upon the same adverse party if he would deny the existence of the facts claimed by another adverse party [citation]. Additionally, one need not prove a negative averment, the burden of proof being on the party who asserts the affirmative [citation]. The United States Supreme Court has stated, \u2018[t]he ordinary rale, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.\u2019 [Citations.] The corollary to the above proposition is:\n\u2018Where a party alone possesses information concerning a disputed issue of fact and fails to bring forward that information, and it is shown that it can be produced by him alone, a presumption arises in favor of his adversary\u2019s claim of fact.\u2019 [Citation.]\u201d Snyder, 266 Ill. App. 3d at 166.\nHere, the Department established that respondent had received a substantial pay increase. The trial court essentially imposed the additional burden of proving a negative proposition: that respondent did not actually spend the amount designated a per diem for food and lodging. Because respondent enjoyed far superior access to the relevant evidence, the burden should have been placed on him to prove his actual expenses for meals and lodging and to establish a lawful basis for deducting them from his income. Moreover, 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 used against the parent in a child support proceeding. Even with liberal discovery, it might be impossible as a practical matter for the parent seeking support to establish the other parent\u2019s expenses for meals and lodging. There is a strong societal interest in ensuring that parents provide appropriate support for their children. The trial court\u2019s rule rewards poor record keeping and facilitates a parent\u2019s efforts to avoid his or her support obligation. This is unacceptable as a matter of public policy.\nAccordingly, this cause is remanded for a new hearing. At that hearing, the trial court is directed to include in respondent\u2019s income the entire amount of the per diem travel allowance he receives reduced by the amount actually used for travel expenses with respondent having the burden of proving those expenses.\nFor the foregoing reasons we reverse the order of the circuit court of Du Page County denying the Department\u2019s petition and remand the cause for further proceedings in accordance with this order.\nReversed and remanded with directions.\nMcLAREN and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE KAPALA" } ], "attorneys": [ "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Richard S. Huszagh, Assistant Attorney General, of counsel), for appellant.", "Pamela W Anderson, of Connie R. Gessner, EC., of Wheaton, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF ROXANN WORRALL, Petitioner, and RAYMOND WORRALL, Respondent-Appellee (The Department of Public Aid, Appellant).\nSecond District\nNo. 2 \u2014 01\u20140786\nOpinion filed October 18, 2002.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Richard S. Huszagh, Assistant Attorney General, of counsel), for appellant.\nPamela W Anderson, of Connie R. Gessner, EC., of Wheaton, for appellee." }, "file_name": "0550-01", "first_page_order": 568, "last_page_order": 574 }