our first case on the call the docket today wednesday march twenty first two thousand and twelve is scuse me agenda number ten case number one one two seven nine two mary ellen mcgrath good morning justices counsel may it please the court my name is paul feinstein and i am pleased to be here representing the appellant martin mcgrath in a post judgment dissolution of marriage case justices a number of years ago this court wrote an important opinion in family law called rogers in which the interpretation of the child support statute specifically section five zero five was discussed in that particular case the issue was whether or not gifts that the pay your father regularly received was income and this court held that anything that is received whether taxable or not is income if it comes in if it's a game that increases his wealth and as far as family  no no i was concerned that seemed fine but what's happened since then unfortunately and part of the reason that we're here today is that some of the appellate courts and some of the trial courts have in my opinion go off track in terms of their interpretation of rodgers this is an opportunity for this court to get everybody back on track so that in particular  matrimonial lawyers we can advise our clients with a bit more certainty of understanding what is and what is not income because it's so crucial for child support cases because the first thing that must be done under the statute is to determine the pay or is in problem sometimes it's a very relatively simple and sometimes it's not if you have someone who's a w two employee that's fine you get a rogers type situation where there are other things and interpretation comes in this particular case is a question of law from the first district it's a question of whether my client martin mcgrath assets that he was awarded in his divorce case and subsequently spent to pay for his own expenses as well as child expenses six hundred dollars a month agreed to court ordered expenses for the benefit of the children are in fact income which then triggers the guidelines and the operation of the statute again the key in the difference between rogers and what happened in this case is in rogers whether taxable or not if it comes in it's income we understand that that's not a problem but in this case it was not money that came in just right and yeah isn't it true that section five zero five two allows the trial court to deviate from the stairs it's very very lines if they lead to an inappropriate amount and that one of the factors that the court can consider is the financial resources and needs of and then custodial parent that's true justice thomas after determining what the income is right so let's look at that for a minute so when you can see that the trial court would be well within its discretion the fine account while i disagree i disagree with the ultimate conclusion your honor yes the twenty eight percent applying the statute as it's supposed to be applied would be forty eight dollars but as this is the graph is sort of taken that position that's all my client wants to pay that's not the case because it can't be taken in a vacuum in the agreement he's already paying sixteen hundred dollars a month in addition to many other things voluntarily so the result ultimately if you apply the guidelines it's sixteen hundred plus fifty and that's money that either if it doesn't go directly into mr grass pocket at the phrase an expense which is just as much a benefit to her the same question of players of this movie if the sixteen hundred plus fifty is not enough in the court's opinion can that court in its discretion take into account the the savings it can in its discretion certainly justice in determining to exceed the guidelines but the problem that we have with the operation of this statute is if we're going to give trial courts such discretion because essentially one could say well the court can make any decision and if it's a reasonable it's going to be affirm because of use of discretion we know is a differential standard but first the state yes to be properly applied the no fault that didn't happen here we can't undo the process that the trial judge did had the that done it differently maybe there would not have been an appeal but when she starts by saying this is income we're already off the track so are we looking for you're saying we're not looking then whether the board abused their discretion in coming up with the amount that they did because they put the savings account into the column of net and i believe that the ruling the legal ruling tainted what happened there after absolutely well as i said in the briefs at the time of the judgment for dissolution rather than a child support order it was reserve with the understanding that he wasn't really he wasn't earning any get income how it all  that was in the judgment those were right there there wasn't any direct payment of child support from mrs mcgrath for mr mcgrath the mrs mcgrath but there was an obligation for him to share in these various other things which the evidence showed came to sixteen hundred dollars a month and child it didn't include direct child support to mrs mcgrail that's right and one of our points was there really wasn't any change of circumstances between the time of the judgement and the time when mrs mcgrath filed her motion as well because mr mcgrath had the same assets they were awarded to him he was awarded his portion of the estate she was awarded her portion of the estate the  will would that be income it could be under certain other how's it different decisions well it's because again if the money it's from agreeing with you on that reverse to be a public court on the analysis if we're gree with you that the savings is not net income in rimi ending to the trial court to make a determination under five zero five eight two what is of something you can certainly do you can either do that we managed to the trial court you could vacate the decision and make a determination based on the guidelines that's you know both of those are certainly within your power  would just hope that you not affirm and set out a rule that spending is income because that would be a rule for all cases that would have severe consequences not only in this case but in the others  i may the other fallacy of reasoning that the appellate court went through in its very short decision was it said that spending is not excluded from the definition of income w nothing is excluded under the statute it just says income and it's an issue of case law to determine that and based on your own decision things that come in our income things that do not come on and that's where we get t it it because it's not a game mary ellen other than the ever heard and when cases cites no cases for the for this proposition that the only non ira case where the money in question was found to be income was your own case of rogers and again in that case the funds were received so it was properly income counsel mr feinstein correct yes you did file this new additional authority is mclaughlin i think ira distributions are not income they did the same analysis as has been done over the various ira cases everhart which was the first district case and linen on the one hand you know daniel on the other hand which was the case that i argued was the best reason and they basically said yes so daniel really is best reason now i grant you they then attempted to distinguish this case on the basis of one with child support and one was maintenance but the reasoning is what i find a little troubling they said well there are strong public policy reasons as for to treat it differently or to enforce child support first of all we're talking about interpretation of a statu if something is income it's income if it's not it's not so whether we're talking about for maintenance purposes or child support pro pieces or really any other purposes bet gets us off course again the issue is is it income and secondly there are substantial public policy crowd ations in the state to protect spouses as well as children the what main ones that i thought of were for example under five zero five you can get a judgment for child support or you can get interest you can get liens well section five zero four has those very same provisions for maintenance you can get all of those the income withholding statute which is an important public policy it makes it easier to collect support that applies just this is not only to child support but the main it's and most interesting lee i thought the nonsupport act not only covers child support but maintenance and justice is it still criminal it's still criminal not to support your spouse so as i read this decision just last week it made sense to me up to a point but then when they said well mcgrath doesn't apply these other cases don't apply because it's child support and not maintenance when you're looking at the statute which is what we're doing here today i don't see the difference i see it as a positive point that this sixteen hundred a month in the direct pays were sent out there was the divorce there were all those things and then later mrs mcgrath filed the instant petition for an order of direct child support which is what h us here today and really the reason the result shouldn't differ looking at these other cases looking at it for example tegel are in baumgarten where money came in but it didn't increase the pay or his wealth because it was a loan he had to pay it back so for example let's take another hypothetical if martin instead borrows money to pay these expenses and pays the expenses out of the borrowed money i don't think there would be much question that pursuant to those authorities and rogers that would be deemed not income so the fact that he's paying it out of money he already have there should be no difference to their crowd court made a eighty frankly i can't think of a better word but absurd and absurdity is of course what we're supposed to avoid in dealing with these statutes essentially the lower courts rewrote the statute in this case as i've indicated my client is certainly not attempting to avoid child support gentleman pays not only the sixteen hundred dollars a month but there was under a budget of a dense he pays additional money voluntarily every month several hundred dollars he has joint custody as well so he has to incur some of his expenses for his housing also involve the children because he has the children over there so in essence what the trial court and the appellate court have done when they rule that spending is income is that they ines in essence hunnish a child support pay or they punish him because to the extent he pays money for the children that he's ordered to do that's considered income so that increases  child support obligation to the extent then that he voluntarily pays more things toys and visits and whatever as was in the evidence he's punished for that because it bumps up his income as well as to the extent that he covers his own expenses and the evidence was he had substantial medical expenses and the legal fees from this case again they all bumps up his income he's ordered to pay more child support so he's really he's punished for living and he's punished for complying with the order i believe that a ruling that spending money for one's own medical expenses for example and being taxed at the gross amount twenty eight percent would be a question that expenses  had essentially asserted a privilege having to do with the details of his condition and the evidence was that he was not working had not been working for several years and then the trial judge essentially treated it as again somebody who has asset based income he said ok i'll give you that he's unemployed now let's talk about what we're going to do with support but instead of again saying his income is two hundred a month and then let's apply the guidelines he said his income is eighty five hundred a month and then apply the guidelines the other way believe that the court's ruling is bad law not consistent with roger's definition of income another point of the consequence of ruling that spending is income is that for example the statute allows a deduction for one to deduct his own health insurance premiums so all of this is eighty five hundred a month five hundred or so a month is health insurance premiums for my own client the statute gives him the right to deduct it but when you also call it income you're not giving him the duction because it's a wash you're saying ok he has this five hundred a month income less the five hundred a month expenses there's a there are also provisions in the statute allowing for deductions for reasonable expenses for the benefit of the children again those are spending oriented things but you don't give a person the benefit of those if you're going t issue a ruling that spending is income i'll otherwise stand on the brief unless the court has any additional questions i would ask for this court's rule that money spent is not income for child support purposes and for a vacation or reversal of the trial in a poet court rulings mr mcgrath really appreciates the time that your runners have but given us as the why thank you just thank you good morning justices good morning mr feinstein always a pleasure my name is david posole co and i represent the parley mariella mcgrath it's an honor to be before you today but before we go into statutory interpretation and mr feinstein and i have been involved in creating statutes in repealing statutes and modifying statutes this is a case about a woman who has two children who needs help supporting them that's what it's about and i think if you look at the record and i'll go into more detail i think that the trial court was spot on on what the issue was it's unfortunate that we got caught up in language of income of asset derived income or calling an asset income and i don't think that that was the intent of the trial court and i don't think it was the intent of the appellate court one fact that is very clear in this case is this trial court considered everything considered the income the assets the spending habits the thing that i found disingenuous was there's a basic premise here the premise and we've gone phone route we've gone to trial motion to reconsider appellate court and now before the highest court in the state of illinois there's something wrong with the situation where a non custodial parent doesn't work has no reason for not working lives a lavish lifestyle offers assets yet provisions in the act excluding martin's monthly withdrawals from the definition that income my question is isn't it the word income itself that excludes merton's monthly savings account withdrawals that that is obviously that's why we're here today that's the issue i think i think the quote that creates a a seemingly conflict or at least a lack of clarification on the term of income so why wouldn't we since none of the definitions including the definitions in rogers would include savings account withdrawals as income why don't we reverse and remand the trial and remand to the trial court to make a determination based on five zero five eight two i think that's a wonderful suggestion but i will say the reason why is because the court already did that and i and i'd like and i will go and i'm going and stick with your question but i will go into that in a little more detail i think the trial court did that i think the public court did that i found it shocking but one of the complaints about that mr mcgrath has is that he's paying eight hundred dollars a month in attorney's fees to defend against this action that was brought of him it is clear that the time  the divorce she reserved the child support because she wanted to be divorced she wanted to get this pastor she waited a year and then she filed and was met with the same controversy and when she when mr mcgrath lost that the hearing was met with a motion to reconsider and when he lost that was met with an appeal through the appellate court and when he lost that petition and grabbed on to that issue that you're asking about the income and saying this is the issue i completely agree except the courts are already done that the lower court has clearly already done that and what i'm begging you to do today mcgrath doesn't have to start the process all over again why do you think we took this i think you took this case because the question becomes if income if your assets that you already have iran come when you take it out then what about then what about the wage earner who also has assets any money a wage earner spends i assume would also be income so i believe that what your honor is saying is that the statute already provides a vehicle for it but maybe not this vehicle this is this is a name this is nomenclature this is a this is form and i'd i'm i'm saying mrs is begging not to put form over substance for may have to be corrected under this is this is the highest court in the land and you're certainly the people to do it form may need to be corrected but the so that i disagree either savings account withdrawals or income or their net income the appellate court says they are and if we say that it is income it's going to apply not only to this case but every case that comes out after so many question remains the same for both of you why would we just reverse remand five o five a two employees a vehicle to say hey already seven dollars and whatever it was forty eight dollars and seven cents isn't enough we're going to look at his other assets which includes a savings account we're going to come up with a number and that's perfectly perfectly logical i think i think that's the issue but i'm suggesting one further step the court already but consider all of those things under five o five a two they already did that and it's clear in the record they already did that please don't make or have to go through it again shall we did th wild well that may be true in substance following up with justice thomas we've been asking you about how do we avoid the sentence and we conclude that the circuit court was correct to include as part of martin's income the money he withdraws from his savings account we simply affirm and we are saying that any withdrawal from anything is income no matter what the trial court actually did how do we avoid i would suggest to your honor's and i'm not i think you have power to do whatever you think is is the best thing to do and the most equitable thing to do but i think that this court has the power to suggest that if this doesn't change the outcome because that what he spends is already in the statute then you are asking us to make a determination whether the trial court abused its discretion in making this award and we are determining that we're not going to look at is and we're going to look at is that so basically are we making the first determination as to what's reasonable child support ep absolutely in a sense but in a sense to the degree that it is putting form over substance then i think the opening should be left for the trial court to suggest that if we've already considered this but you don't have to do the whole process all over again and i don't know it's possible for this honorable court to take that that path well hasn't the trial court heard all of the evidence would it not simply be a reversal or a man for the trial court to consider without determining that withdrawal is income under five o five it's the assets and be used to determine what's reasonable you've simplified it for me that's exactly what i'm asking for from your honor and thank you counsel is there any evidence in the record that the father was deliberately has surprised me throughout this appellate process throughout the motion to reconsider because initially he said that he's unable to work because he has depression and i believe he at that time i believe he said he has other medical conditions we sent subpoenas to two of his doctors and he filed a motion to quash those subpoenas ultimately at a hearing the court agreed with him that we can't get that medical information and then during the trial during the motion for reconsider during the appellate court process during the petition for leave to appeal he continuously says to you i have medical conditions that the court didn't let me talk about he's trying blatantly to use a says both the shield and a sword he talks about i have medical bills that i have to pay for my medical needs it's just it's shocking to me that he could he could make any mention of it but he did it at each level he tried to make as much mention as he could about his medical records as his defense while first blocking us from having that information we have the doctors in the court we had this argument before said the evidence establish that he was mr mcgrath is unemployed as he was of the time of the judgement he claims that he is unable to work but he is unwilling to consent to discovery of the basis of his claim therefore the court made no assessment of his employ ability and approach the issue not is one of a voluntary unemployed parent but rather as a parent who uses assets as a substitution for income rather than seek employment court i think the court used all factors i think the court used her income her expenses the expenses directly and indirectly related to the children his assets and expenses just as  statute provided for i think the court i think the court felt compelled to tell us what the statutory guidelines would be and i think that's where the court came up with the income but they tried to comply with the statute we're going to deviate from the guidelines but the statute says i have to tell you what a guideline support order is and i believe in my humble opinion in this particular case she would have had to say there is no ability to determine statutory guidelines we're deviating from the guidelines because we're using a tool as a method of deviating from the guidelines i think that's where it got caught up and i assure you when i read that portion or that portion of the appeal of the appellate court opinion i wasn't thrilled about it because i go back to a very basic premise i just simply represent a lady who needs help supporting her two children position that you think the court did it right and took all the factors into account but is a perjury response to justice kerman first question and some of the other questions that were asked here is it a fair statement that you're not going to the math support in support of the appellate court analysis that's the savings withdrawals worrying that is a safe assumption your honor ok thank you counsel let me ask you this we're here on the petition was filed in july of two thousand and eight i believe yes so required days change in circumstances from the time of the judgment to show that there was an income change did not i don't believe that it did well what it what is the standard under the statute the petition to modify a judgment to award additional support i believe that the the standard to as you proposed it what i'm asking you what it is well i think it because it was reserved it never required a proof of a change in circumstances so you believe there is no change in circumstances at all while there the change in circumstances was one year had gone by that he didn't pay support and had no basis for why he was still unemployed at the time i mean you give me an answer just on make sure i understand you're saying because it was reserved the statutory standard of a change of circumstances you believe doesn't apply yes or on an item i believe it's also not properly before the court but i do but i do believe it does not apply i i i believe that mr mcgrath had the opportunity to go seek employment or to come clean as to why he wasn't getting employment the other fact is that when we talk about all the extra money he was paying these are common and ons per statute per case law he was paying medical not covered by insurance half of it he was paying for daycare half of it he was paying for extra curricular activities half of it and in one of his comments he talked about all that expens expensive it is well i think he was arguing our side for a moment because yes because our client is paying the same just paying half of all those same expenses and then paying for everything else that's not covered under those three categories of expenses so he almost concedes the obvious it's expensive to raise children but yet he takes the position that seriously i should pay a have expenses that was part of the agreement and part of the very same paragraph of paying those expenses was that the issue of child support direct payments was reserved so it was all part of the same thing at the time we knew that each of them had received over a million dollars in assets from the divorce case and by the way that wasn't a that was a judgment that incorporated a marital settlement agreement  have i think that question was put to me and i have an issue as to the income and i will concede that but i also you know her income has come up a few times while it is relevant by statute if if if mrs mcgrath made fifty thousand and mr mcgrath made eighty thousand he paid guideline support and if she made one hundred thousand and he still made eighty thousand he paid guideline support and if she made one hundred fifty thousand and he made eighty thousand under the normal circumstances he'd still pay guideline support so the direct impact of guideline support when considering her income is not really highly relevant as it is what a wage earners seem to have a lifestyle is it still him it's the obvious problem that i saw when i first read the opinion it's the obvious problem i saw and that's why i'm not falling on any sword today i'm simply trying to make it clear which i think this court is abundantly clear that there is a form matter that has to be rectified or clarified if you deem that that's necessary and there's a substance of matter and the substance matter is the real matter to mrs mcgrath and her two children thank you  an honor to be here thank you pointed out what about her assets what about her income under the ruling of the appellate court and the trial court which deemed spent the assets that the income keep in mind she spends more than he does and if you are to be consistent you'd have to add then another one hundred twenty thousand so her income under what should have been the trial judge's analysis was three hundred fifty thousand dollars a year and yet there's no indication in the record that the court t that into account in doing the small deviation that they did mr feist say would you be able to give us an answer to just as frequent question of any of the assets that were awarded to your client did those assets generate new income the eight income yes what asset the asset is there there were some qualified assets of that in fact is what the trial court added to his income on the motion to reconsider  what we refer to as the i think the hundred seventy one dollars a month they out with that's the income on the investment so that's what that's why we get to the fifty dollar a month guideline that is his actual income under rogers and under the statute it's the income under the investment so they have to see what was the asset that was generating income he had ever seen it was the savings account the state he had i think he had a number of them that are set forth in the marital settlement agreement there were a number of different qualified and non qualified assets that both parties received as their portion so his his income was that was added to the eighty five hundred dollars a month which under the testimony even wasn't always eighty five hundred a month i think on the resilience disclosure statement it was seventy five hundred dollars a month but the be that as it may we have the legal issues about this and again in terms of position was that i believe that the court can just vacated and insert the guideline award but obviously that's within the court's discretion and if there's going to be more litigation there is i take exception to the counsel's statement or inference point is at sixteen hundred dollars a month that he is giving that he is paying for the benefit of the child but in this case it's being called income on top of it similarly it's not that he's complaining that he had to spend legal fees to defend himself when she files the petition of the eight hundred a month what he's complaining about is the vet's considered income and then he adds in to make the eighty five hundred dollars a month mr mcgrath appealed to the appellate court because in our assessment the trial court was wrong that's why i filed a motion to reconsider when i came into the case to try and write the issue right then and i addressed it head on with lin daniel and all those other cases in the trial court ruled apparently felt that since eberhard was a first district case that she was bound by that and we took our appeal as it were and the appellate court made its ruling which with all due respect i believe was erroneous as a matter of issues less the court has any questions i get is that as with the mr to sulk and it's an honor to be in case with him we've had many cases over the years i believe he's one of the the top people in our field and i always appreciate this is my third time arguing before this court and it's always an honor and privilege thank you to both counsel thank you for your arguments today case number one one two seven one two mcgrath versus mcgrath is taken agenda number ten thank you