1 20 20 IL App (5th) 20 00 32 -U

NO. 5

- 20 -00 32

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________ In re MARRIAGE OF ) Appeal from the ) Circuit Court of JENNIFER R. GRIFFITH , ) Shelby County. ) Pe titioner

- App ellant , ) ) No. 16 -D-1 and ) ) JASON M. GRIFFITH , ) Honorable ) Amanda S. Ade

- Harlow , Respondent

- Appellee . ) Judge , presiding.

________________________________________________________________________ PRESIDING JUSTICE WELCH delivered the judgment of the court. Justice s Cates and Wharton concurred in the judgment.

ORDER
¶ 1 Held : The trial court’s order modifying the appellee’s maintenance and child support obligations is affirmed where the court did not abuse its discretion in determining that the appellee’s decreas ed income after he was involuntarily terminated from his employment constituted a substantial change in circumstances warranting modification

. ¶ 2 This is an appeal arising from an order of the circuit court of Shelby County granting
the appellee, Jason M. Griffith’s, motion to modify maintenance and child support that he
was required to pay to the appellant, Jennifer R. Griffith , under the parties’ judgment for NOTICE Decision filed 11/12/20. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. NOTICE This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).2 dissolution of ma rriage and marital separation agreement (MSA ) . For the reasons that
follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The parties were married in April 1994 . There were two children born of the
marriage, one of whom was still a minor at all times relevant to this appeal. On November
15, 2016, the trial court entered a judgment of dissolution of marriage incorporating the

MSA which, inter alia , ordered the appellee to pay the appellant $1970 in monthly

maintenance and $695 in monthly child support

. The MSA provided in relevant part that

“ maintenance is subject to modification and termination pursuant to 750 ILCS 5/510.”
¶ 5 At the time of the dissolution judgment, when the original maintenance and child
support orders were entered, the appellee worked for Stuart C. Irby Company (Irby)

. The
appellee’s financial affidavit filed on January 25, 2016, indicated that his estimated salary

was $9 1, 754.01 per year. His amended financial affidavit filed on September 22, 2016,
showed that his gross income for 2015 was $97,177 and his gross monthly income was
$7929 . According to the appellant’s financial affidavit filed on February 1, 2016 , she was employed part

- time a t CVS earning $9.20 per hour; she worked around 20 hours per week

. The paystubs attached to her financial affidavit revealed that she was paid bi

- weekly, with the gross pay being approximately $423 on one check and $450 on the other.
¶ 6 On January 28, 2019 , the appellee filed a motion to modify maintenance and child
support. A hearing on the appellee’s motion to modify was held on October 3, 2019 , during
which the following evidence was presented.3 ¶ 7 The appell ee testified that he started working for Irby i n April 2014 when he
accepted the position of director of services for Irby’s tool repair b usiness. When he was
hired to work for Irby, the appellee was provided a handbook outlin ing company policies

. He signed the handbook receipt and acknowledgement fo rm on June 18, 2014. He also
signed a personal commitment and acknowledgement of receipt of the code of e thics and

b usiness c onduct that same day.
¶ 8 Irby had also established a travel and expense policy, which was introduced as the
appellant’s Exhibit F. The policy established a detailed protocol for claiming and obtaining
reimbursement for expenses. It provided that, “The Corporate Card is to be used for all
credit card purchases of reimbursable business travel and entertainment expenses where
the Corporate Card is accepted. The Corporate Card is a company asset. As such, it is to
be used for business purposes only. See Separate Irby Corporate Card Policy for more
detail.” The policy also included rules relating to automobile expenses.
¶ 9 In his employment with Irby, the appellee received a base salary with some growth

incentives. He was subject to annual reviews. The appell ee , who was a high sch ool
graduate, reported a total income from salary of $83,174 in 2017 and $102,532 in 2018.
The appellee explained that his base salary did not change, but his bonus incentives

increase d annually. In 2017, Irby had growth across the business, and the appe llee hit a
portion of his bonus that substantially increased his salary for the following year. In 2018,
the appell ee had four different metrics set for his bonus plan: sales revenue increase, gross
margin increase, inventory discrepancies, and overall e a rnings before income and taxes
(EBIT). The appell ee met all four goals and expected a bonus of $40,000 to be paid in4 March 2019. However, the appell ee did not receive this bonus as he was terminated i n January 2019.
¶ 10 The appell ee testified that his job at Irby was important to him. He loved his job ; it
was what he had done for the past 24 years. He had worked all his life and had financial
responsibilities to meet. During his employment at Irby, he never missed a maintenance
or child support payment. He made consistent payment s on a vehicle loan that his parents

had extended to him after he had to file bankruptcy due to the parties’ divorce

. In
anticipation of his continued employment with Irby and the bonus he was going to receive,

the appellant gifted his parents $1200 so they could go on an extended vacation to Gulf
Shores, Alabama. He also purchased a pontoon boat and planned to purchase a new home.
¶ 11 The appellant testified that in 2018, Irby had a change in management. He explaine d
that the company frequently restructured according to growth and various factors. The
company made personnel changes when its employees were not making their numbers.
¶ 12 On the morning of January 18, 2019, the appellee was informed via phone call that

a n audit had been done on the company fuel cards, it was determined that he used the card
for his personal truck, and that day would be the last day of his employment. Prior to that
phone call, the appellee did not believe that using the fuel card was a te rminable offense.

He explained that it was common practice to utilize the fuel card , as most employees
traveled for business. The appellee’s home was in Shelbyville, Illinois, and he would drive
anywhere he could within six to eight hours. The fuel card w as located in the branch office
in Shelbyville, and employees who were in sales would utilize it . The appellee was5 devastated and immediately offered to repay the funds he used, which amounted to about
$1100

. ¶ 13 The appellee testified that he received a notice of termination letter on January 18,

2019 . Although the appellant entered into evidence the purported “Notice of Termination ,”
the appellee denied that it was correct, as it was dated January 16, 2019, and his termination
date was January 18, 2019. The appellee further adamantly denied that Irby’s travel and
entertainment policy submitted as the appellant’s Exhibit F was the policy that he violated

. The ap pellee explained that the travel and entertainment policy only pertained to company

issued credit cards utilized for meals, hotels, and customer entertainment. He testified that
the actual company

- issued card that he utilized for business

- related travel fuel expenses
was a “Fuelman” card, which was issued to the branches and commonly utilized by all
employees who performed business travel.
¶ 14 The appellee stated that on the evening of his termination, he updated his resume

and immediately began seeking alternative employment. He estimate d that he applied for
40 to 50 jobs ; he started keeping track shortly after his termination. Looking for new
employment was difficult because the appellee lacks education beyond high school.
¶ 15 The appellee accepted a sales position from Snap

- On Industrial, a $3.5 billion per
year company that had an opening in southern Illinois. The appellee believe s that as he
works his way up in the company, his income will be similar to what he earned in prior
years. He immediately commenced making child support payments after he found new
employment.6 ¶ 16 The appellee filed an updated financial affidavit to support his motion to modify,
which indicated that his estimated salary wa s $3309 .84 per month (or approximately $39,708 per year) . At the time of the dissolution judgment, the appellee had an estimated
salary of $91,754.01 per year or $7670 per month. As such, his 2019 annual income was
significantly less than what he made in 2016 when the original maintenance and child

support orders were entered.
¶ 17 At the time of the motion to modify, the appellant h ad obtained full

- time
employment at Hydro

- Gear earning $12.75 per hour
, she work ed 40 hours per week, and
her salary wa s $2503.60 per month (or approximately $30,0 36 per year). She was eligible

for overtime pay at Hydro

- Gear but did not receive overtime at CVS. At the time the
appellant filed her financial affidavit in response to the motion to modify, she was not
receiving maintenance because the appellee’s employment had already been terminated.
Thus, the adjusted gross income shown on her 2018 tax return ($44,295) was higher than
her earnings from employment ($30,036) because she was receiving maintenance during

2018 , and that counted towards her adjusted gross income.
¶ 18 During her testimony, appellee’s counsel asked in detail about the appellant’s bank
statements. The appellant was unable to locate proof that she paid the water bill, Ameren
bill, her car payment, and garbage bill, all of which were set forth in her sworn financial
affidavit. With respect to the above bills, the appellant testified that she always had lights,
water, and garbage removal. She was “pretty sure” that she paid her water bill and car
payment in cash.7 ¶ 19 The appellant testified that she moved into a residence at 507 N. Douglas St.,
Shelbyville, Illinois , in D ecember 2017. The appellant testified that although her
boyfriend, Adam Powers , was an over

- the

- road truck driver, he occasionally stayed with

her at that address when he wa s not working. During a review of her bank statements, the appellant admitted that there were months where Powers deposited $350 in to her checking
account, and on the same days that those deposits were made, she withdrew money to pay
her rent. The appellant also testified that Powers gave her money for her children, and that

she would transfer funds from her account to Powers ’s when he needed money while
traveling. The appellant confirmed that she had been in a dating relationship with Powers
since August 2016. The app ellant further testified that Powers t ook care of her children,

attended the minor child’s extracurricular activities, went out to eat and on vacations with
her family, and they spen t holidays together.
¶ 20 The appellant testified that she moved into her mother’s residence in February 2019
because she could no longer afford the rent at her own residence since she had not been
receiving maintenance payments. She testified that if her maintenance were restored, she
could resume living independently.
¶ 21 The trial court ordered the parties to provide calculations regarding the figures to be
adopted by the court. The appellee turned in calculations that showed that the appellant
owed him thousands of dollars. The appellant asked the court that any modification o f
maintenance be limited to changes attributable to her increase in earnings, and that the
court should impute the same income to the appellee as he had been earning at the time of
the dissolution of marriage.8 ¶ 22 On December 31, 2019 , the trial court entere d its order on child support and

maintenance . The court found that a substantial change in circumstances had occurred so
as to require a modification of the maintenance order. The court declined to impute income
to the appellee, finding that:
“[ T]his Cou rt agrees with [the appell ee ] that while his actions (misusing the company credit card) was the cause of his termination, the [appellee] immediately repaid it in an attempt to keep that job, explained, with credibility, how that specific card was used and not included in the employer’s policy that was admitted into evidence, that the card was subject to [the] other policy, that the card had been used by others in the field office for the same purpose, was not limited to termination as discipline, immediatel y began looking for work, and took a job in a similar field that could, in the long run, yield income similar to his income at Irby. There was no evidence or testimony that [the appellee] was underemployed nor was there any evidence or testimony that another job similar to the Irby job was available to [the appellee]. ”
The court also found that the appellee’s “actions for termination were not done to avoid his
support obligations based upon his credible testimony and his history of paying those
support obligations was impeccable and not suggestive of someone who was trying to avoid
his financial support obligations. ”
¶ 23 The trial court further found that the appellant’s income had significantly increased
since the initial maintenance and child support orders were entered, and that she had regular
monetary contributions from her boyfriend that should be considered for purposes of
calculating her income. Based on the appellee’s change in employment and the appellant’s

increased income, the court decreased the monthly maintenance amount to $0 . However,

the court specifically disclaimed , “this is not a termination of maintenance .” The court
further stated that the maintenance amount was “subject to modification in the future

pur suant to Illinois law.”9 ¶ 24 Similarly, the trial court found that the same substantial change in circumstances
justified modification of the appellee’s child support obligation. Accordingly, the court modified the monthly child support amount to $427.39. The appellant appeals the court’s

orders as to maintenance and child support

. ¶ 25 II. ANALYSIS
¶ 26 The appellant argues that the trial court abused its discretion in finding that a
substantial change in circumstances occurred that warranted modification of the a ppellee’s
maintenance and child support obligations. She asserts that the court erred in decreasing
the maintenance and child support amounts based on the appell ee ’s decreased income after
he was terminated from his job. Relying on In re Marriage of Imlay , 251 Ill. App. 3d 138
(1993), the appellant contends that the court should have determined that because the
appellee’s termination was due to his misconduct, his employment change was voluntary
and in bad faith. As such, the appellant maintains that the court should have imputed
income to the appellee consistent with the income he earned at the time of the dissolution
judgment

. ¶ 27 Motions to modify child support and maintenance are governed by section 510 of

the Illinois Marriage and Dissolution of Marriage Act. See 750 ILCS 5/510 (West

201 8 ). Section 510 provides that “upon a showing of a substantial change in
circumstances,” an order for child support or maintenance may be modified. Id.
§ 510(a)(1), (a

- 5). A substantial change in circumstances warranting modification may
occur upon: (1) an involuntary change or loss of employment , (2) a voluntary change of
employment made in good faith , or (3) a change in the needs of the recipient spouse or the10 ability of the payor spouse to make the payments. In re Marriage of Brent , 263 Ill. App.
3d 916, 922 (1994). When determining whether maintenance should be modified upon a
finding of a substantial change in circumstances, the court must also consider factors such
as the needs of each party, the duration of the marriage relative to

the maintenance payments previously paid, the property awarded to each party under the
judgment of dissolution, each party ’ s present and future earning capacity, and the change
in each party ’ s income since the prior jud gment or order from which a modification is being
sought. 750 ILCS 5/504(a), 510(a

- 5) (West 201 8 ).
¶ 28 The party seeking modification has the burden of proving a substantial change in
circumstances, and the trial court has “wide latitude in determining whether a ‘substantial
change’ has occurred.” In re Marriage of Saracco , 2014 IL App (3d) 130741, ¶ 13. The
decision to grant or deny a motion to modify a party’s child support or maintenance
obligation will not be disturbed on appeal absent an abuse of disc retion. In re Marriage of
Carpenter , 286 Ill. App. 3d 969, 973 (1997) ; In re Marriage of Fink , 275 Ill. App. 3d 960,
964 (1995). “[I]f the court ’ s exercise of discretion has an evidentiary basis, then the
reviewing court will consider the manifest weight of the evidence.” In re Marriage of

Bates , 212 Ill. 2d 489, 524 (2004). A judgment is against the manifest weight of the
evidence where the opposite conclusion is clearly evident or where the court’s findings are
arbitrary, unreasonable, or not based on the evidence

. In re Marriage of Matchen , 372 Ill.
App. 3d 937, 946 (2007).
¶ 29 Here, the trial court found a substantial change in circumstances occurred based on

the appellee’s termination from his employment at Irby. It further found that t he appellee’s11 employment change was not voluntary , and that while it did result from his conduct , he
immediately attempted to rectify the situation and keep his job by repaying the funds he

used. The court found credible the appellee’s testimony as to how the Fuelman card was
used, that it was not included in the Irby travel and entertainment policy relied on by the
appellant, that the card was subject to another policy, that it had been used by other
employees in the field office for the same purpose, and that the discipline for misuse of the

card was not limited to termination. See In re Marriage of Mitteer , 241 Ill. App. 3d 217,

226

- 27 (1993 ) (“It is the function of the trier of fact to determine the credibility of witnesses

and the weight to be given their testimony .”).
¶ 30 The evidence presented on the appellee’s motion to modify supported the trial

court’s findings. The appellee testified that it was common practice to utilize the fuel card

as most employees traveled for business. The appellee would drive anywhere he could

within six to eight hours of his home

. The fuel card was located in the branch office in
Shelbyvi lle, and employees who were in sales would utilize it. The appellee testified that

he charged about $1100 to the card. Prior to the phone call notifying him of his termination,

the appellee did not believe that using the fuel card was a terminable offense. He was

devastated and immediately offered to repay the funds he used. Further, he adamantly

denied that Irby’s travel and entertainment policy relied on by the appellant was the policy

that he violated

. Similarly, t he uncontradicted evidence indicate d that the appellee loved

his job, it was important to him, and it was what he had done for the past 24 years. He had

been successful at his job, with his income increasing each year because he received

substantial bonuses. He made six figures in 2018.12 ¶ 31 In this vein, we think the appellant’s reliance on Imlay , where a request to modify

maintenance was considered in the context of a voluntary change in employment, is
misplaced. There, the trial court denied a petition to modify maintenance after it
determined that the payor spouse ’ s deliberate actions caused his termination and, therefore,
that he could not meet the burden of establishing that the employment change was made in
good faith. Imlay , 251 Ill. App. 3d at 142 (noting that “ [a] party who vo luntarily changes
employment resulting in a reduced income and seeks to modify a support obligation must
show the employment change was made in good faith” (emphasis added) ). Here, the
appellee’s employment change was not voluntary. As such, we think tha t this record more
closely resembles the following three cases where employment changes warranted support

modifications.
¶ 32 First, in In re Marriage of Barnard , 283 Ill. App. 3d 366 (1996), the payor spouse,
an attorney, petitioned to reduce his child support obligation. The payor spouse had been
employed with his law firm for 20 years, was the firm ’ s chief trial lawyer, and had earned a salary of $191,000. For various reasons, the payor spouse felt forced to leave the firm.
He established his own law practice but, to supplement his income, he accepted part

- time
work with the Adams County State ’ s Attorney ’ s office for $30,000 per year. He petitioned

the trial court to reduce his support in light of his greatly reduced earnings. The court found
that the payor spouse left his law firm in good faith (he was essentially forced to resign),
that the change resulted in a substantial change in circumstances, and that child support
would be temporarily reduced for a period of six months with the accrued balance to b e paid at a later date. The appellate court affirmed, finding that, although the payor spouse13 made the job change expecting to earn less than he had at the firm, the choice to leave his
former employer was motivated by concerns of job security, there was no evidence that the
change was motivated by bad faith, and he had made considerable efforts to obtain other
employment. Id . at 372. Given the circumstances surrounding his leaving the firm, the
court agreed that he “was not required to wait until his change of employment became an
involuntary one to justify a reduction” in support. Id

. ¶ 33 Next, in In re Marriage of Gosney , 394 Ill. App. 3d 1073 (2009) , the trial court
denied a petition to modify child support, but the appellate court reversed because the payor
spouse was involuntarily unemployed and, within months of his termination, found another
position in the financial management industry (moving f rom a salary of $755,497 in 2006
to $110,000 in 2008). The appellate court disagreed with the trial court ’ s finding that the payor spouse should earn $350,000, noting that “he did not willingly decide to leave his
job and then remain unemployed” and that “nothing in the record suggests an attempt to
evade a support obligation.” Id

. at 1078. The appellate court noted that, immediately after
he lost his job, the payor spouse began searching for new employment and continued to
make support payments. Id

. F urther, the court found there was no evidence of “an
unreasonable failure to take advantage of an employment opportunity,” or that he had been offered a position that would have paid him $350,000. Id

. “At the time of trial, [the payor
spouse] had no empl oyment opportunity that would have produced an income in the range
imputed by the trial court. Indeed, there is no evidence that a job of that income was
available to someone of [his] experience in 2008.” Id

.14 ¶ 34 Finally, in In re Marriage of Lavelle , 206 Il l. App. 3d 607 (1990), the appellate court

reversed the trial court ’ s denial of a petition to modify child support. There, the payor
spouse, at the time of the original judgment, was self

- employed as the owner of an

electronics store. The store went bank rupt. After filing for bankruptcy, the payor spouse
enlisted a headhunting agency to find him employment in the electronics field, but those
efforts proved fruitless. While unemployed, the payor spouse became licensed as a
stockbroker and became employed at an investment firm with his entire salary based on

commission. He testified that he expected his income at the firm would increase. The
appellate court disagreed with the recipient spouse ’ s argument that, while the bankruptcy
was unfortunate, the payor spouse voluntarily changed careers and should instead have
obtained a job in the electronics field for which he was qualified. The court concluded
that, where the loss of employment was involuntary and where the payor spouse ’ s efforts
to obtain a position in the electronics field failed, even with an agency ’ s assistance, he had
demonstrated that a substantial change in circumstances warranted a reduction or
modification of his support obligations

. Id . at 611

- 12. T herefore, the appellate court found

that the trial court had abused its discretion in denying the petition to modify. Id . at 612.
¶ 35 The aforementioned cases persuade us that, here, the trial court ’ s findings that the
appellee did not voluntary change his employment, is not underemployed, and the actions
underlying his termination were not done for the purpose of avoiding his maintenance or
child support obligations are not contrary to the manifest weight of the evidence and,

th erefore, that it did not abuse its discretion in concluding that modification should be
granted. As in Barnard , Gosney , and Lavelle , the record here reflects that the appellee’s15 job change was forced, not voluntary, he actively sought reemployment on his own, he

found appropriat e new employment for his education level , he expects to make a salary
comparable to what he was previously earning, he made support payments up until his
termination and resumed child support payments as soon as he found new employm ent, and there was no evidence that he was offered, but turned down, any higher paying
positions.
¶ 36 Specifically, and in accordance with the foregoing cases, we agree with the trial
court’s assessment that the appellee immediately began looking for work and took a job in

a similar field that he believed would eventually yield an income comparable to what he
made at Irby. Moreover, the court found that there was no evidence indicating that the
appellee was underemployed or that he had turned down employment with a salary that
was closer to what he previously made. T he uncontradicted evidence showed that the
appellee updated his resume and began seeking alternative employment immediately after

his termination. He estimated that he applied for 40 to 50 jobs but looking for new employment was difficult because he lacks education beyond high school. However, he

was offered and accepted a sales position from Snap

- On Industrial. The appellee believe s

that as he works his wa y up in the company, his income will be similar to what he earned

in prior years. 1 He also immediately commenced making child support payments after he

found new employment.

1 We note that if the appellee’s belief is true, and his income level rises to that of what he made prior to his termination , there is nothing stopping the appellant from filing a motion to modify the appellee’s maintenance and child support obligations to reflect such increased income.16 ¶ 37 Although the appellant spen t a considerable amount of argument on the issue of
whether the appellee’s job change was done in good faith, we note that consideration of
good faith appears relevant to voluntary employment changes, not involuntary employment
changes. See, e.g. , Brent , 263 Ill. App. 3d at 922 (listing as separate circumstances
warranting modification an involuntary job change versus a voluntary job change made in
good faith). Nevertheless , we agree with the trial court ’s finding that the appellee’s

“actions for terminati on were not done to avoid his support obligations based upon his
credible testimony and his history of paying those support obligations was impeccable and
not suggestive of someone who was trying to avoid his financial support obligations.” See

Mitteer , 2 41 Ill. App. 3d at 226

- 27 (“It is the function of the trier of fact to determine the
credibility of witnesses and the weight to be given their testimony.” ). The uncontradicted

evidence revealed that pr ior to his termination, the appellee had worked all his life,
consistently paid maintenance and child support, and kept up with other financial
responsibilities

. ¶ 38 In light of the foregoing, we find that the appellee’s loss of employment was involuntary and constituted a substantial change in circumstances. The trial court did not

abuse its discretion in granting modification of his maintenance and child support obligation s because the reasons supporting its decision were not against the manifest
weight of the evidence. Therefore , we affirm the court ’s modification of the maintenance

and child support amounts

. ¶ 39 III. CONCLUSION
¶ 40 T he order of the circuit court of Shelby County is hereby affirmed.17 ¶ 41 Affirmed.