{ "id": 4260074, "name": "In re MARRIAGE OF TERI EILEEN BREITENFELDT, Petitioner-Appellant, and RICHARD ALLEN BREITENFELDT, Respondent-Appellee", "name_abbreviation": "In re Marriage of Breitenfeldt", "decision_date": "2005-11-30", "docket_number": "No. 4\u201404\u20140987", "first_page": "668", "last_page": "680", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 668" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2003 Ill. Laws 1628", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "661 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "509", "parenthetical": "if the noncustodial parent overwithholds on his W-2, the amount should be added back to his net income when determining his child support under section 505(a) of the Act" } ], "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172449 ], "year": 1996, "pin_cites": [ { "page": "733", "parenthetical": "if the noncustodial parent overwithholds on his W-2, the amount should be added back to his net income when determining his child support under section 505(a) of the Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0728-01" ] }, { "cite": "820 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448393 ], "year": 2004, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0129-01" ] }, { "cite": "655 N.E.2d 1144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1148" } ], "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906740 ], "year": 1995, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0097-01" ] }, { "cite": "753 N.E.2d 1264", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1266" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256304 ], "year": 2001, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0213-01" ] }, { "cite": "805 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833443 ], "year": 2004, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0818-01" ] }, { "cite": "611 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5119679 ], "year": 1993, "pin_cites": [ { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0496-01" ] }, { "cite": "508 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464326 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "801" }, { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0798-01" ] } ], "analysis": { "cardinality": 1054, "char_count": 27942, "ocr_confidence": 0.769, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.29817259616294234 }, "sha256": "f0ccd32f9cf753ec0f591c2ca0efb61ebad12fd111d056fbda1c7347b83eb54f", "simhash": "1:c78212fe79449e72", "word_count": 4531 }, "last_updated": "2023-07-14T16:28:25.526171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF TERI EILEEN BREITENFELDT, Petitioner-Appellant, and RICHARD ALLEN BREITENFELDT, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nPetitioner, Teri Eileen Breitenfeldt, appeals the trial court\u2019s denial of her petition to modify respondent, Richard Allen Breitenfeldt\u2019s, child support obligations to the parties\u2019 two children. We vacate the trial court\u2019s order and remand with directions to modify respondent\u2019s child support obligations.\nI. BACKGROUND\nThe parties were married in May 1992 and have two children together, Cody (born November 18, 1992) and Kaitlyn (born March 11, 1995). On October 6, 1995, petitioner filed a petition for dissolution of marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 through 802 (West 1994)). On December 15, 1995, the trial court entered a judgment of dissolution of marriage and approved the parties\u2019 marital settlement agreement and joint-parenting agreement. The marital settlement agreement provided, inter alia, that the parties would have joint custody of Cody and Kaitlyn and respondent would pay petitioner $350 per month for child support. The marital settlement agreement further provided:\n\u201cHusband, on or before April 15th of each year shall furnish Wife a copy of all W-2 forms or other evidence of his income for the prior year. Should an increase in child support then being paid be authorized said increase shall be retroactive to January 1st of that year. Wife, if requested by Husband, shall promptly furnish him copies of her W-2 forms for the prior year.\u201d\nOn December 10, 1996, the parties agreed by stipulated order to void the joint-parenting agreement and give petitioner sole custody of the children. On May 13, 1997, petitioner filed a petition to increase child support, alleging respondent had received salary increases and that he should be required to pay half of the children\u2019s schooling expenses. The record reflects entry of an order for withholding on August 18, 1997, indicating $80.77 per week to be withheld immediately from respondent\u2019s employer.\nOn August 19, 2002, the Illinois Department of Public Aid (IDEA) intervened as the provider of payments to the children and requested redirection to itself of any child support payments made in the case. IDPA also filed a notice to withhold respondent\u2019s income in the amount of $350 per month and a petition for modification of child support. On June 12, 2003, the court entered a uniform order for support, modifying the amount respondent was required to pay to $488.50 per month retroactive to January 1, 2002.\nOn March 31, 2004, petitioner filed a petition for modification, alleging that, since entry of the last modification, a substantial change in circumstances had occurred in that (1) respondent\u2019s total income for 2003, computed in accordance with section 505 of the Act (750 ILCS 5/505 (West 2004)), reflects an average monthly income of between $3,000 and $3,500 for the year; (2) petitioner\u2019s costs to provide for the children continue to increase as they grow older; (3) the children require orthodontia at an estimated cost of $5,000 each; (4) petitioner\u2019s financial resources had been reduced as a result of her January 2004 divorce; (5) respondent had been relieved of most or all of his other debts as a result of filing bankruptcy; and (6) statutory standards for the minimum contributions toward the support of two children have increased.\nOn July, 6, 2004, the trial court held a hearing on the petition. At the hearing, petitioner called Heather Keigher, a payroll processor for respondent\u2019s employer, to testify as to University Auto Park\u2019s payroll system. Keigher testified sales associates such as respondent are paid in three different ways: (1) \u201cdraw,\u201d (2) SPIFF (which the record does not define), and (3) commission. A draw, paid twice per month in the amount of $1,000, is essentially a salary but functions as an advance on commissions, since sales representatives are paid on a 100% commission basis. Therefore, respondent repays his draw to University Auto Park from his monthly commission.\nRespondent\u2019s payroll records also show income from sales SPIFFs, finance and insurance SPIFFs (F&I), and deductions for SPIFF advances. Keigher testified sales SPIFFs are akin to bonuses to reward employees for selling a vehicle. An F&I SPIFF is a similar reward from the dealership\u2019s finance and insurance department. An employee who receives any kind of SPIFF can present it for immediate payment or have it put on his or her paycheck for that period. Either way, the SPIFF shows up on the payroll for that pay period as income, and the employee is taxed for the amount of the SPIFF. If the employee has already cashed the SPIFF, it is then deducted from the gross income for that period.\nThe third way respondent is paid is by commission. On cross-examination, Keigher explained the relationship between draw and commission as follows:\n\u201cA. The draw amount \u2014 okay. The way I understand it, um, you\u2019ve got your \u2014 the 26 weeks of draw money, but when it comes to when you have your commissions that are once a month, that draw money is even deducted from that. *** [I]f they had a commission of 5000 and they had already gotten 1300 in their draw, they\u2019ve already gotten that money, that\u2019s deducted off of that and then they get their commission amount. And then, of course, that\u2019s taxed.\nQ. MR. BORICH [(respondent\u2019s attorney)]: But, again, that\u2019s all taxable?\nA. Yes. Everything\u2014\nQ. Even though there\u2019s a deduction, that\u2019s all taxable?\nA. Everything is taxable, yes.\nQ. So, the draw amount and then the commission amount, um, even though they\u2019re all taxable, that\u2019s not an accurate reflection of actual income that the sales associate would receive? It\u2019s not an accurate \u2014 it\u2019s not accurate of what the sales associate would pocket in terms of money because you both have the draw that\u2019s taxable and the commission that\u2019s taxable, but then there is a deduction because you subtract one from the other?\nA. Exactly.\nQ. So, on a W-2 form, if with regard to the income that\u2019s listed as taxable income, that would include both draw money and commission money?\nA. Everything. Yes.\u201d\nTo clarify the relationship between draw, SPIFFs, and commission, the trial court engaged in the following colloquy with Keigher:\n\u201cTHE COURT: *** Okay. I\u2019m just trying to figure out how this draw works in. So, we need to give you a better example. He has $26,000 in draw, and $25,000 in SPIFF\u2019s\u2014\nTHE WITNESS: Which is pretty high, but okay.\nTHE COURT: Okay. Just work with me here.\nTHE WITNESS: I know.\nTHE COURT: And $25,000 in commissions.\nTHE WITNESS: Okay.\nTHE COURT: So I\u2019m guessing, then, that his taxable income is going to be 25 plus 25, which is 50, minus the 26; is that right?\nTHE WITNESS: Yes.\nTHE COURT: Because he\u2019s got to pay you back for the draw\u2014\nTHE WITNESS: He\u2019s paying us back, yes. Exactly.\nTHE COURT: And if his SPIFF\u2019s and his commissions are 10,000 and 10,000 for a total of 20, then his taxable income is still going to be 26, he just owes you guys 6\u2014\nTHE WITNESS: He actually\u2014\nTHE COURT: \u2014six grand.\nTHE WITNESS: Yes. Yes.\nTHE COURT: But he\u2019s gotten that 26,000 in his pocket that he can spend, he just kind of owes you?\nTHE WITNESS: Yes.\u201d\nAdditionally, Keigher testified that if a salesclerk drives one of O\u2019Brien\u2019s vehicles, his pay stub reflects a $50-per-month \u201cdemo allowance,\u201d which is reported as taxable income; but there is also a $90 demo allowance deduction. Therefore, she opined that employees still paid \u201csomething\u201d for use of the car. Keigher also explained the accounts receivable deduction on respondent\u2019s pay stub. She testified it is generally for car repair and is deducted from the employee\u2019s paycheck. Keigher also testified that all benefits at respondent\u2019s employer fall under the \u201ccafeteria plan,\u201d meaning that when reporting income to the Internal Revenue Service, benefits are subtracted out and not included in gross income.\nPetitioner testified that, as a result of her January 2004 divorce, she incurred additional costs for her children of $100 per month for babysitters and $200 per month for daycare, even with the daycare costs partially subsidized by the government. Petitioner had been on her husband\u2019s insurance prior to the divorce, and she now had to pay for her own medical care. She does not currently have medical coverage because she cannot afford it. On her income affidavit, petitioner claimed $200 per month in medical care. On cross-examination, however, she admitted this figure was probably overstated. Additionally, petitioner had to pay all of the rent herself ($700 per month) and part of the food and utilities ($510 per month). Petitioner also testified that both children were going to need braces in the future, which will cost $5,000 each. Petitioner testified she works at Montessori School, where she takes home around $1,200 per month when she works full-time during the winter and half of that during the summer. Petitioner\u2019s expense affidavit showed a net monthly income of $1,568.50 and monthly expenses of $3,191.66, meaning petitioner\u2019s monthly expenses exceeded her monthly income by $1,623.16.\nRespondent testified as an adverse witness (see 735 ILCS 5/2\u2014 1102 (West 2004)). He acknowledged petitioner\u2019s exhibit No. 8 to be his and his wife\u2019s tax return for 2003. The three minor dependents listed on the return include one child, Cody Breitenfeldt, from his marriage to petitioner. He identified an income item of $1,000, listed as \u201cOther Income from Form 1099-Miscellaneous,\u201d as a SPIFF he had earned from a source other than University Auto Park. Respondent acknowledged that he filed bankruptcy in October or November 2003. Respondent\u2019s employer provides him a car to take home at night \u201cfor dealership use, to go home and back and within limited range of the dealership or on dealership business.\u201d\nFollowing arguments by the parties, the trial court first reviewed its calculations in previously setting support at $488.50 per month and noted that that figure looked reasonable. The court continued:\n\u201cI then have to address the primary issue before the court: Has there been a substantial change in circumstances? Um, looking at the figures that I have here, it\u2019s pretty clear that his income is pretty similar to what it was a year ago [when the court found respondent\u2019s net monthly income to be $1,954], So, I\u2019m going to deny the Petition to Modify finding \u2014 there is \u2014 there is somewhat of a change in circumstances. I\u2019ve heard testimony today that the [petitioner] has been divorced, and that affects her available resources primarily, I think, because of the impact on childcare costs and obviously there\u2019s only one income available for fixed costs. But, on the other hand, there\u2019s one less adult who must be supported, as well. That\u2019s really the only notable change in circumstances that I find that [sic] this time.\u201d\nThe court further ordered respondent to be responsible for half of any of the children\u2019s orthodontic expenses. Following a hearing, the court denied petitioner\u2019s motion to reconsider, and this appeal followed.\nII. ANALYSIS\nA. Petitioner\u2019s Income\nOn appeal, petitioner argues the trial court erred in denying her petition for modification of child support. Section 510(a) of the Act provides that a child support judgment can only be modified upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a) (West 2004). When determining whether sufficient cause to modify has been shown, courts consider both the circumstances of the parents and the children. Fedun v. Kuczek, 155 Ill. App. 3d 798, 801, 508 N.E.2d 531, 533 (1987). The increase in the child\u2019s needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred that creates a substantial imbalance between the child\u2019s needs and the parent\u2019s support capabilities, modification is required. Fedun, 155 Ill. App. 3d at 801, 508 N.E.2d at 533. Trial courts have wide latitude in considering whether a substantial change has occurred warranting modification and should consider not only the needs of the children and the financial status of the noncustodial parent, but also the needs and financial status of the custodial parent, the financial resources of the children, the standard of living the children would have enjoyed had the marriage continued, and the physical, emotional, and educational needs of the children. In re Marriage of Riegel, 242 Ill. App. 3d 496, 498-99, 611 N.E.2d 21, 23 (1993). The trial court\u2019s determination of whether a substantial change in circumstances has occurred is one of fact and will not be disturbed unless against the manifest weight of the evidence. In re Marriage of Armstrong, 346 Ill. App. 3d 818, 821, 805 N.E.2d 743, 745 (2004).\nWe find the trial court abused its discretion in finding no substantial change of circumstances in light of changes in petitioner\u2019s income. Petitioner\u2019s testimony was that she had been recently divorced and, as a result, her expenses had increased. Importantly, she now has only one income with which to support the children. Moreover, petitioner now has additional costs of $300 per month in childcare she did not have before the divorce, and she now has no medical insurance and has to pay for her own medical care. The court noted the change in petitioner\u2019s available resources resulting from her divorce but apparently found it to be balanced out by the fact there was also one less adult to feed. Specifically, in denying the petition for modification, the court stated:\n\u201cI\u2019ve heard testimony today that the [petitioner] has been divorced, and that affects her available resources primarily, I think, because of the impact on childcare costs and obviously there\u2019s only one income available for fixed costs. But, on the other hand, there\u2019s one less adult who must be supported, as well. That\u2019s really the only notable change in circumstances that I find that this time.\u201d\nWe find no evidence in the record supporting this conclusion. Petitioner still has the same expenses: food, clothing, and transportation costs. Rent and utilities costs no doubt doubled. When child support is $488.50 per month, the $300 increase in childcare alone reflects a huge drain on petitioner\u2019s assets. Clearly, petitioner\u2019s divorce constituted a substantial change in circumstances warranting modification.\nB. Respondent\u2019s Income\nPetitioner also argues the court incorrectly determined respondent\u2019s net income consistent with section 505 of the Act. We agree. The starting point for determining a child support award is to determine the noncustodial parent\u2019s net income. 750 ILCS 5/505 (West 2004); In re Marriage of Baylor, 324 Ill. App. 3d 213, 216, 753 N.E.2d 1264, 1266 (2001). The findings of the trial court as to net income and the award of child support are within its sound discretion and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Freesen, 275 Ill. App. 3d 97, 103, 655 N.E.2d 1144, 1148 (1995).\nThe confusion in this case centers on the interplay between respondent\u2019s draw, SPIFFs, and commissions. This confusion was exacerbated by respondent\u2019s attorney and Keigher\u2019s confusing and, at times, seemingly inaccurate testimony. We sympathize with the trial court given our difficulty understanding the evidence in this case.\nPetitioner argues that respondent\u2019s draw is included in his taxable income, while respondent claims that his W-2 forms, payroll stubs, and tax return misrepresent his actual income because these documents fail to reflect repayment of his draw from his commission proceeds. Respondent claims and the trial court apparently agreed that his W-2, payroll documents, and tax return overstate his income by failing to account for repayment of his draw from his commission proceeds. We disagree.\nAccording to the testimony, respondent is paid in three ways: (1) draw, (2) SPIFFs, and (3) commission. He receives a check every two weeks that includes his draw of $1,000 and reflects SPIFFs he received during the pay period. The SPIFFs may be cashed when received, in which case they are added to respondent\u2019s gross income for the pay period for tax purposes and then deducted because they have already been paid; otherwise they are simply added to the draw. Additionally, respondent is compensated each month for the commission he earned during the preceding month.\nFor example, University Auto Park\u2019s payroll records for May 2004 show he was paid $1,000 in draw twice during that period. He also received SPIFFs of $730 during the first half of May and $550 during the second half. Including these SPIFFs and demo allowance (which is income from respondent\u2019s use of one of University Auto Park\u2019s cars), respondent\u2019s gross income for the two checks was $1,680 for the first half of May and $1,600 for the second half. One reason respondent\u2019s income appears low as reflected on his bimonthly checks is because he cashed the SPIFFs when he received them as opposed to having them added to his check. When an employee cashes a SPIFF instead of having it put on his paycheck, the amount of the SPIFF is added to the gross income for the pay period to ensure it is taxed as income but is then deducted before issuance of the check. Accordingly, while the checks actually issued total only $528.76 for the month, respondent actually earned an additional $1,280 gross in SPIFFs.\nMoreover, during April 2004, respondent had a gross income from his sales commissions of $4,273.54. Respondent would claim $2,000 less than this amount actually went into his pocket because his monthly draw is subtracted from his commission. According to respondent, while University Auto Park issued him a check for $2,750.01 for his commission (after taxes), he only made $750.01 after subtraction of his draw. In fact, if this were true, every commission check should be $2,000 less than it was. This makes no sense. We instead find that respondent\u2019s commission checks reflect that which respondent earned in commission over and above his $2,000 draw for the previous month. In other words, respondent actually earned $6,273.54 in commission, and University Auto Park only issues him a check when his commission exceeds his draw for the previous month. The months in which respondent was not issued a commission check do not necessarily represent months in which he earned no commission but rather months where his commission was less than his draw.\nAccording to petitioner\u2019s exhibit No. 1-A, which respondent admitted to the accuracy of, in 2003, respondent earned $26,000 in draw, $17,986.22 in commission, $6,575 in SPIFFs, and $1,200 in demo allowance, resulting in a gross income from these sources of $51,761.22. This figure is similar to the gross income of $50,964.30 reported on respondent\u2019s W-2 and tax return. Additionally, respondent\u2019s earnings for the first part of 2004 are similar to 2003. In the first four months of 2004, respondent earned $8,000 in draw, SPIFFs of $2,090, and commission of $4,956.66. Averaged out over the rest of 2004, this would put respondent\u2019s gross income again around $50,000.\nIt defies logic that University Auto Park, on its W-2, and respondent, on his tax return, would list as income money respondent never received or from which he never derived any benefit. If respondent never actually received a benefit, it is not income. See In re Marriage of Rogers, 213 Ill. 2d 129, 136-37, 820 N.E.2d 386, 390 (2004), quoting Webster\u2019s Third New International Dictionary 1143 (1986) (\u201c \u2018income\u2019 is simply \u2018something that comes in as an increment or addition ***: a gain or recurrent benefit that is usfuallyj measured in money ***: the value of goods and services received by an individual in a given period of time\u2019 \u201d). Neither does the record reflect any amended income-tax returns correcting this alleged overpayment.\nMoreover, Keigher\u2019s testimony, while admittedly confusing, does not contradict the view that respondent\u2019s income includes draw and commission paid, as evidenced by the following colloquy:\n\u201cA. The draw amount \u2014 okay. The way I understand it, um, you\u2019ve got your \u2014 the 26 weeks of draw money, but when it comes to when you have your commissions that are once a month, that draw money is even deducted from that. *** [I]f they had a commission of 5000 and they had already gotten 1300 in their draw, they\u2019ve already gotten that money, that\u2019s deducted off of that and then they get their commission amount. And then, of course, that\u2019s taxed.\nQ. MR. BORICH [(respondent\u2019s attorney)): But, again, that\u2019s all taxable?\nA. Yes. Everything\u2014\nQ. Even though there\u2019s a deduction, that\u2019s all taxable?\nA. Everything is taxable, yes.\nQ. So, the draw amount and then the commission amount, um, even though they\u2019re all taxable, that\u2019s not an accurate reflection of actual income that the sales associate would receive? It\u2019s not an accurate \u2014 it\u2019s not accurate of what the sales associate would pocket it terms of money because have both the draw that\u2019s taxable and the commission that\u2019s taxable, but then there is a deduction because you subtract one from the other?\nA. Exactly.\nQ. So, on a W-2 form, if with regard to the income that\u2019s listed as taxable income, that would include both draw money and commission money?\nA. Everything. Yes.\u201d\nC. Section 505(a) Income\nWhile the trial court did not make any calculations on the record, it stated that it found respondent\u2019s current income to be similar to what it had found in May 2003. We disagree. Section 505 of the Act requires the court to set the minimum amount of child support for two children at 28% of the noncustodial parent\u2019s net income, unless the court finds reason to deviate from this figure. 750 ILCS 5/505(a)(l), (a)(2) (West 2004). Section 505(a)(3) defines \u201cnet income\u201d as the total of all income from all sources minus the following deductions: (1) federal income tax, (2) state income tax, (3) social security withhold-ings, (4) mandatory retirement contributions, (5) union dues, (6) dependent and individual health insurance premiums, (7) prior obligations of support or maintenance, and (8) expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income. 750 ILCS 5/505(a)(3) (West 2004).\nRespondent\u2019s tax return and W-2 for 2003 show a total income of $50,964.30, which after adding $4,633.73 in benefits from the cafeteria plan, puts respondent\u2019s total income for 2003 at $55,598.03. Section 505(a)(3) of the Act allows the following deductions to arrive at respondent\u2019s net income:\nFederal income tax: $4,781.24\nState income tax: $1,529.06\nSocial Security Payments: $3,159.79\nMedicare Withholding: $738.98\nHealth insurance premiums: $295.50\nFamily Health Insurance Premiums: $3,712.50\nDental Insurance Premiums: $625.73\nO\u2019Brien Uniforms: $80.63\nTotal $14,923.43\nAdditionally, as petitioner points out, in 2003, respondent overwithheld federal and state taxes, resulting in a refund of $3,545 from federal taxes and $312 from state taxes, and this amount is added back into respondent\u2019s net income. In re Marriage of Pylawka, 277 Ill. App. 3d 728, 733, 661 N.E.2d 505, 509 (1996) (if the noncustodial parent overwithholds on his W-2, the amount should be added back to his net income when determining his child support under section 505(a) of the Act). We further note that the record reflects no amended tax return to account for any overpayment. Therefore, according to our calculations, respondent\u2019s net income under section 505 of the Act is $55,598.03 \u2014 $14,923.43 + $3,857 = $44,531.60. Dividing this figure by 12 results in a monthly net income of $3,710.97. We note that the minimum amount of support for two children was increased from 25% to 28% subsequent to the 2003 order. See Pub. Act 93 \u2014 148, \u00a7 5, eff. July 10, 2003 (2003 Ill. Laws 1628, 1628). Therefore, 28% of $3,763.71 results in a monthly child support obligation of $1,039.07.\nRespondent\u2019s total income for the first four months of 2004 is $17,470.18. After adding in $1,544.38, representing one-third of respondent\u2019s yearly benefits from the cafeteria plan, this total is $19,014.56. For the first four months of 2004, respondent\u2019s deductions are as follows:\nFederal income tax: $1,261.00\nState income tax: $466.15\nSocial Security Payments: $963.30\nMedicare Withholding: $225.29\nFamily Health Insurance Premiums: $1,685.00\nDental Insurance Premiums: $218.44\nTotal $4,819.18\nWhile we are unsure of respondent\u2019s tax status for 2004, his net income under section 505 of the Act for January through April 2004 is $19,014.56 \u2014 $4,819.18 = $14,195.38. Multiplying this number by three results in a net income for the year of $42,586.14. Dividing this figure by 12 yields a monthly net income of $3,548.85. Therefore, 28% of $3,548.85 results in a monthly child support obligation of $993.68. We note that his figure does not include any tax refund, while the 2003 figure does.\nIn May 2003, the trial court found respondent\u2019s net income pursuant to the Act to be $1,954 per month for the first 130 days of 2003 and set child support at $488.50 per month, representing 25% of the monthly income. Such a finding puts respondent\u2019s yearly net income for 2003 in the neighborhood of $23,500. With respect to the instant petition, in finding respondent\u2019s income was similar to what the court had previously found it to be, the court did not explain how it arrived at the figure. Keigher\u2019s testimony as well as respondent\u2019s W-2 and tax return indicate that respondent\u2019s net income is now substantially higher. We find this increase in respondent\u2019s income also constitutes a substantial change in circumstances.\nTherefore, we vacate the trial court\u2019s order denying the petition for modification and remand for the court to modify respondent\u2019s child support obligations in light of our findings. We are mindful that respondent\u2019s income is not static from month to month since he works on commission, and the court may consider this or any other relevant factors warranting deviation from the guidelines in setting the modified amount. See 750 ILCS 5/505(a)(2) (West 2004).\nIII. CONCLUSION\nFor the reasons stated, we vacate the trial court\u2019s judgment and remand for further proceedings consistent with this order.\nVacated and remanded with directions.\nCOOK, EJ., concurs.", "type": "majority", "author": "JUSTICE MYERSCOUGH" }, { "text": "JUSTICE McCULLOUGH,\ndissenting:\nI respectfully dissent and would affirm the trial court\u2019s order.\nI disagree with the majority\u2019s mathematics and conclusions as to respondent\u2019s income. The testimony and exhibits concerning his income had to be a nightmare for the trial court. Heather Keigher, payroll processor for respondent\u2019s employer, was called as a witness by the petitioner. The cross-examination of Keigher and the trial court\u2019s colloquy with Keigher further justifies the trial court\u2019s decision. The respondent\u2019s brief is correct in stating:\n\u201cMs. Keigher, as a witness for Petitioner, made clear why Respondent\u2019s W-2 forms and pay stubs were not accurate reflections of Respondent\u2019s net income. Although all of Respondent\u2019s draw, SPIFFs, and commissions appear on his W-2 forms and as income on his pay stubs, these documents fail to reflect the \u2018repayment\u2019 of Respondent\u2019s draw from his commission proceeds. Accordingly, that Respondent\u2019s W-2 forms reflect so-called taxable income of more than Fifty Thousand Dollars ($50,000.00) misrepresents Respondent\u2019s actual taxable income. In view of the Trial Court\u2019s grasp of the actual net income Respondent receives from his employer\u2019s convoluted payroll system, the Trial Court justifiably did not increase Respondent\u2019s child support obligation.\u201d\nOur decision remands for a new hearing and a second bite at the apple by petitioner.", "type": "dissent", "author": "JUSTICE McCULLOUGH," } ], "attorneys": [ "Thomas P. Sweeney, of Tolono, for appellant.", "Peter T. Borich, of Beckett & Webber, P.C., of Urbana, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF TERI EILEEN BREITENFELDT, Petitioner-Appellant, and RICHARD ALLEN BREITENFELDT, Respondent-Appellee.\nFourth District\nNo. 4\u201404\u20140987\nOpinion filed November 30, 2005.\nMcCULLOUGH, J., dissenting.\nThomas P. Sweeney, of Tolono, for appellant.\nPeter T. Borich, of Beckett & Webber, P.C., of Urbana, for appellee." }, "file_name": "0668-01", "first_page_order": 686, "last_page_order": 698 }