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Rule 23 order filed 2022 IL App (5th) 210065 

January 27, 2022. 

Motion to publish granted NO. 5-21-0065 

February 24, 2022. 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

In re MARRIAGE OF ) Appeal from the 

) Circuit Court of 

KRISTI BRITTON, ) Williamson County. 

) 

Petitioner-Appellee, ) 

) 

and ) No. 12-D-183 

) 

BRENT BRITTON, ) Honorable 

) Carey C. Gill, 

Respondent-Appellant. ) Judge, presiding. 

JUSTICE VAUGHAN delivered the judgment of the court, with opinion. 

Justices Welch and Moore concurred in the judgment and opinion. 

OPINION 

¶ 1 Respondent, Brent Britton, appeals the trial court’s orders that (1) required him to 

reimburse petitioner, Kristi Britton, for one-half of the cost of voluntarily-obtained supplemental 

insurance; (2) shifted Brent’s obligation to pay the children’s health insurance premiums to Kristi; 

(3) ordered Brent to reimburse Kristi for educational expenses incurred prior to the filing of the 

modification petition; (4) imputed income to Brent; (5) determined Brent’s gross monthly income 

was $14,529; (6) calculated Kristi’s gross income without interest or capital gain stemming from 

a stock sale; and (7) calculated child support and awarded arrearage based on the erroneous 

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findings for income. For the following reasons, we affirm in part, vacate in part, and remand for 

further proceedings. 

¶ 2 I. BACKGROUND 

¶ 3 Kristi and Brent were divorced on April 25, 2012. Two children were born of the marriage, 

K.B., born 05/02/2003, and A.B., born 02/09/2005. The parties entered into a marital settlement 

agreement (MSA) and a joint parenting agreement (JPA) that were incorporated into the judgment 

of dissolution. Pursuant to the JPA, the parties shared joint custody of the children with Kristi as 

the residential parent and Brent receiving parenting time. Pursuant to the MSA, Brent would pay 

$200 per week in child support and maintain health insurance on the minor children with each 

party responsible for “one half of all deductibles and expenses *** not covered by insurance.” The 

parties also agreed to split the expenses for the children’s extracurricular activities up to $500 per 

year. Based on the dissolution documents, both Brent and Kristi were employed, held equal shares 

of Britton Trucking, Inc., Britton’s Wrecker Service, Inc., and Britton Transportation Services, 

Inc., and would continue to use their company cars following the divorce. No income was listed 

for either party. 

¶ 4 On October 17, 2017, Kristi filed a petition to modify claiming that when the parties 

divorced, Brent’s income was approximately $1030 per week. She alleged a substantial change in 

circumstances since the dissolution, claiming that Brent’s income had increased substantially, the 

needs of the minor children had changed, and the cost of providing for those needs had increased. 

On November 22, 2017, Brent admitted his income had increased substantially but denied the 

needs of the minor children had changed and the cost of providing for those needs increased. 

¶ 5 On December 12, 2017, Brent filed a counterpetition to modify the JPA stating, inter alia, 

that despite the joint custody classification, Kristi involved the children in numerous 

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extracurricular activities without Brent’s agreement which limited, hampered, or undermined his 

parenting time. Brent also contended that Kristi had enrolled K.B. in a private school in Missouri, 

against his wishes, which required him to drive 75-80 minutes each way to pick up and drop off 

K.B. at school. Brent also filed a petition for rule to show regarding his allegedly disrupted 

parenting time. 

¶ 6 Kristi responded on December 21, 2017, admitting, inter alia, the parties mutually 

modified the prior parenting time agreement and that she permitted the children to become 

involved in the extracurricular activities. She affirmatively stated that she was “under no obligation 

to discuss or obtain the agreement of [Brent]” and claimed that prior to the filing he “never objected 

to the children’s extra-curricular activities or the time they occur.” 

¶ 7 Following unsuccessful mediation, Kristi filed her financial affidavit on March 5, 2018. 

The affidavit listed her gross income in 2017 as $157,533, which included pension fund money 

used to build a house. It further listed her gross income in 2018 (through February 15, 2018) as 

$8070.10. Her gross monthly income, before taxes, was $7603.19, which included her employment 

($4635.92), child support ($866.67), and payments for her shares of the Britton businesses 

($1050.30). The document also revealed that her new husband’s medical insurance policy covered 

her and the children. 

¶ 8 On December 27, 2018, Kristi filed a petition to allow attorney fees stating she was without 

adequate funds to pay her attorney fees and that Brent earned “significant sums of money” and 

was “well able to pay” Kristi’s incurred attorney fees. On the same date, Kristi also filed a petition 

for rule to show cause claiming that Brent refused and failed to pay reimbursement related to 

medical bills that were not covered by insurance and the children’s extracurricular activities. Brent 

responded on January 10, 2019, admitting he was gainfully employed but denied the remainder of 

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the allegations. Brent also denied that he refused to pay any medical expenses or his portion of the 

children’s extracurricular activities. 

¶ 9 Kristi filed an updated financial affidavit on July 25, 2019, and an amended financial 

affidavit on August 7, 2019. The amended financial affidavit listed gross monthly income of 

$6190.84. The document claimed that Kristi received $2100.60 from Brent “as part of their 

property settlement.” The document again noted that Kristi and the minor children were covered 

under her new husband’s health insurance policy. 

¶ 10 On July 31, 2019, Brent filed a pretrial memorandum that included a financial affidavit 

dated July 30, 2019. The affidavit stated his gross income in 2018 was $55,768 and $21,750 in 

2019 (through July 26, 2019). The affidavit listed Brent’s gross monthly income as $4902.42. He 

claimed that his total available monthly income was negative $2594.31. Brent’s tax returns were 

attached to the pleading. 

¶ 11 On August 8, 2019, the parties proceeded to hearing. The trial court noted all pending 

pleadings and stated the parties would present the evidence and testimony related to the children 

first; thereafter, the court would proceed on the financial issues. Following the hearing, the trial 

court ordered joint decision making as to the extracurricular activities, stated that K.B. would 

continue to attend private school in Missouri, and amended the parenting time schedule to provide 

additional time to Brent so long as the children were taken to all scheduled activities. The order 

reserved ruling on holiday parenting time. 

¶ 12 Kristi filed a “second corrected child support calculation” on October 30, 2019, based on 

the new parenting time allocation. The document listed Brent’s income as $176,569 in 2018, 

$216,305 in 2017, and $293,917 in 2016. The income amounts included section 179 (26 U.S.C. 

§ 179 (2018)) deductions of $107,700 in 2018, $174,322 in 2017, and $118,133 in 2016 reported 

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on Brent’s business taxes. Kristi averaged these amounts, divided the average by 12, and claimed 

Brent’s monthly income was $19,077. 

¶ 13 On October 31, 2019, the trial court issued its order as to holiday parenting time and reset 

the financial hearing for a later date. At the hearing, Kristi tendered 22 exhibits for the financial 

hearing with no objection from Brent and Brent submitted an amended financial affidavit. Brent’s 

amended financial affidavit listed gross income of $98,070.01 in 2018 and total gross income in 

2019 (through October 25, 2019) as $73,495.80. The affidavit listed $6618.33 in monthly gross 

income comprised of $3117.50 in regular employment earnings, $135.42 in rental income, 

$2613.87 in distribution and draws, and $1618.21 in-kind payment of health insurance from his 

business. The affidavit listed Brent’s total available monthly income as negative $3447.63. 

¶ 14 On December 26, 2019, Kristi filed an amended petition to modify. The amended petition 

requested an increase in child support (as before) and contribution from Brent towards the 

children’s educational expenses, including private school tuition, fees, books, lunches, and 

extracurricular activities. Brent’s January 13, 2020, response denied that his income increased 

significantly but agreed the needs of the minor children changed and increased. Brent admitted the 

remaining allegations but denied Kristi was the sole source of funding for private school because 

he had been paying child support for the benefit of the children since the judgment of dissolution 

was entered and contended both parties should contribute to the support of the children. 

¶ 15 On February 13, 2020, the case proceeded to hearing on the remaining financial issues. 

Kristi testified that she was 39 years old and was employed by University of Illinois Extension 

where she worked as a youth development educator. She stated that her amended financial affidavit 

incorporated the raise she received the previous year, and she recently received another raise. Kristi 

stated the children attended school at Saxony Lutheran in Jackson, Missouri, and the monthly 

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tuition was $1075. The children’s lunches were an additional $140 per month. She stated that she 

had always been the only person to pay their tuition and that the children attended private school 

since kindergarten. Kristi stated that she sold her ownership of the Britton businesses back to Brent 

and those monthly amounts were included in her income on her financial affidavit. On crossexamination, Kristi confirmed that her future State of Illinois salary was $57,907.25. She also had 

additional income in the amount of $2100 per month for the sale of the business stock to Brent. 

She admitted the total amount received was $22,897 and listed as a capital gain on her 2018 tax 

return. 

¶ 16 Brent testified that he was 39 years old and was the owner of Britton Trucking, Inc., Britton 

Transportation Services, Inc., and Britton’s Wrecker Service, Inc. Britton Trucking owned the land 

and building where it sat and rented it to the wrecker service. Britton Transportation Services, Inc., 

operated as a separate company because the federal motor carrier rules did not allow a broker 

license in the same name of the trucking company, so it was for the broker license only. Britton’s 

Wrecker Service, Inc., was a towing recovery business with locations in Metropolis, Vienna, and 

Mounds, Illinois. Each location had its own heavy duty, light duty, and service trucks. Brent 

confirmed the copies of his 2016, 2017, and 2018 tax returns. He also confirmed that his total 

household income listed on the tax returns was $87,976 in 2018, $152,530 in 2017, and $128,897 

in 2016. 

¶ 17 Brent was provided copies of his July 30, 2019, and October 25, 2019, affidavits and was 

asked about the discrepancies in the numbers during that three-month period. He confirmed that 

he did not make $53,000 in three months. He stated that he was provided the first affidavit 12 

hours before it was due, and he prepared the second one after he sat down with his accountant. His 

accountant told him he had to include distributions from the company which was classified as 

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partnership distribution money. They calculated all those numbers and separated them out to make 

the second affidavit more accurate, which also included his health insurance. Brent agreed that 

based on his affidavit, he was spending $40,000 more a year than he was making. 

¶ 18 Brent agreed that his real estate taxes were higher on the second affidavit because it was 

revised to be more accurate. He stated that the mortgage listed on the affidavit was one-half of the 

actual amount, the homeowner’s insurance was the full amount, and the electric bill was probably 

one-half of the actual amount. The amounts for cable and internet were the full amounts. Groceries 

were about $100 each week on average. Brent also stated that the car payment was double what it 

showed. Repairs and maintenance along with insurance, license, and stickers were also “probably 

double that.” Brent stated that the personal expenses listed on his affidavit were accurate and 

included only his medical expenses. Brent confirmed that the household also paid medical 

expenses for his wife. He was unsure how much he paid in out-of-pocket expenses for his wife the 

year before. He thought they met their deductible, which he believed was $3500 per person. 

¶ 19 Brent agreed that he included $300 per month for vacations and stated it was an average of 

what he figured for himself. He agreed it would be double if they included his wife and more yet 

if they included the children. He testified that he went on one cruise that year and five people went 

on the cruise. He stated it was about $789 per person and with taxes it cost about $3600. Counsel 

then stated that it would be $600 a month on average if his wife was included. Brent asked, “You 

want to include her portion in this too?” Counsel stated, “Well her income is on your tax return, 

isn’t it?” Brent confirmed that it was. 

¶ 20 Brent was then asked about the $480 per month listed for doctor’s visits for his children 

and the claimed medical expense of over $5000 per year. Brent explained that his son had a kidney 

problem, and they were going to St. Louis on a regular basis. Brent also confirmed the average 

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monthly attorney fee of $1001.20. and the annual attorney fee of $12,000 in 2019. Brent agreed 

his prior financial affidavit did not include attorney fees. Brent confirmed he currently had no 

attorney fee debt. He agreed that he did not provide the fair market value of his businesses, stating 

it would be hard to estimate without appraisals. 

¶ 21 Brent confirmed that he ran a deficit of $3447 a month. Kristi’s counsel stated that doubling 

the expenses would increase the deficit by over $2500, for a total of $6000 a month, and asked 

Brent, “So *** that $72,000.00 a year that you’re spending in excess of your income. Where does 

that money come from?” Brent stated it was all solely based on his personal income. Counsel again 

asked, “Okay, back to where I was, where does this $72,000.00 come from that you spend in excess 

of your income based upon your Financial Affidavit?” Brent stated that his wife worked too and 

up until recently she had worked every day. Brent confirmed that his total household income listed 

on his 2018 taxes was $87,000. Counsel then asked again, “Where does the extra money come 

from that your budget reflects you spend above and beyond your income?” Brent stated, “If you 

look in the tax returns on the back side where it shows distributions on those pages, those 

distributions are reflections to this. So, those distributions are directly distributed to me. My wife 

owns a business as well. Some of them are distributed directly to her.” Brent confirmed that his 

monthly business distributions were listed as $2613.87 on his financial affidavit and that the 

amount was included in the $6618.33 listed as his total income on the financial affidavit. Counsel 

stated that “with the distributions you have shown on this Financial Affidavit, you got the $3447.00 

deficit every month.” Brent stated, “I did something wrong. I don’t know. I really can’t answer 

that question 100 percent. I don’t know how. I done something wrong.” Counsel then asked, 

“Would it be fair to say you don’t know where all distributions come from that you incorporate 

into your living expenses?” Brent replied, “No, that would not be. *** [T]he distributions come 

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from the corporations. The corporations are itemized in the tax returns of the distributions *** but 

I did this on a basis, so I really don’t know the answer to that question. Sorry.” Counsel then stated, 

“Let me ask the question another way. Would it be fair to say that you get distributions that go to 

your monthly living expenses that don’t show up on your tax return as taxable income?” Brent 

stated, “No.” He again confirmed the gross family income on the 2018 tax return as $87,976. 

¶ 22 Brent stated that he lived in Tunnel Hill on six acres. He stated that the wrecker service 

owned 113 acres that adjoined his property and agreed that he moved dirt on that property to create 

a pond. He explained that they were flattening a hill to build a building in the future and stop 

erosion on the property. He agreed that he kept horses on the property. He stated that the 113-acre 

parcel was the future location for his business because he needed a bigger lot and building where 

all the vehicles could be parked. He stated the price was cheaper than buying five acres in town. 

All the trucks, including the wrecked semis, could be parked on the future location. He agreed the 

company made the monthly payment on the 113 acres. He stated that 23 acres of the property were 

fenced and that was where he kept his horses. He agreed that none of the trucks were on the 23 

acres, and he currently had no business use on the 23 acres. 

¶ 23 On cross-examination, Brent confirmed that, other than the 23 acres, there were no other 

monthly expenses that he had or that his wife had that were paid by the business and that anything 

that was paid by the business was distributed on the tax returns. He agreed that a few of the 

expenses on his affidavit were paid by the business but they reflected the income for that on the 

affidavit which included the health insurance payment. Brent had an accountant who prepared both 

his personal and the business income taxes. The accountant would come in once a month and work 

with the secretary to keep everything current. Brent stated that some of his businesses had very 

substantial purchases in the last few years, including wreckers and equipment, which were 

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reasonable and necessary expenses associated with the business. He stated there were three 

wrecker services with equipment at each location. Brent testified that the section 179 expenses 

were necessary for the business and the information was contained in the tax returns. He was 

unaware of any IRS or State of Illinois challenge to his tax returns. He further confirmed that no 

state or federal agency ever challenged the section 179 expenses set forth on the tax returns. 

¶ 24 On redirect, Kristi’s counsel stated that Brent had roughly $72,000 more in expenses than 

his tax return reflected in income and again asked Brent where he was getting the money to pay 

these expenses each month. Brent stated that counsel’s statement was incorrect. He stated there 

were certain expenses, such as the property tax and health insurance, that the company directly 

wrote checks for and that showed up on his tax returns, but it was not listed as personal income. 

He included his half of that on his affidavit. He stated that some of the distributions went to his 

wife and those were not listed on his financial affidavit. He disagreed with counsel’s claim of a 

$70,000 error. Brent stated that he went over the numbers in detail with his accountant. He did not 

believe that his deficit was greater than was shown on his affidavit. 

¶ 25 On recross, Brent disagreed that he had roughly $70,000 in excess every month that was 

paid toward his individual bills. On redirect, Kristi’s counsel again asked Brent how the expenses 

were being paid if he did not have the extra money or new debt to show they were not being paid. 

Brent responded that he did not have those kinds of expenses. 

¶ 26 Following a break, Brent’s counsel called Brent back to the stand. Brent confirmed that his 

2018 tax return contained income for both him and his wife. He stated his tax returns also contained 

the K-1s that showed the amounts of income for distributions from the business. Brent’s financial 

affidavit listed an income of $98,070.01. Brent agreed that his tax return reflected a different 

amount of income. He agreed that his expenses, that were partially or in-whole paid by the 

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company, were accounted for in the distributions shown on his tax returns. This included the 

mortgage, real estate taxes, insurance, cell phone, car payments, and gasoline. He confirmed that 

his wife had income she received in addition to what was reported on his financial affidavit. He 

disagreed that the $70,000 in expenses existed. On cross-examination, Brent confirmed that he 

received $55,120 in wages from Britton’s Wrecker Service and his wife was paid $11,414. 

¶ 27 The court stated it would allow the parties to submit posthearing briefs on the issue of 

Brent’s income and the child support calculation. The court also asked about Kristi’s health 

insurance. Kristi’s counsel clarified the issue was whether the secondary insurance, covered at his 

client’s cost, should benefit Brent, or only applied toward Kristi’s share of the noncovered 

medicals. After discussing the health insurance issue, the court stated: 

“All right. I am going to rule on this. I don’t want a brief on the health insurance. What I 

am going to rule is for that amount that was paid before, he is going credit—give her $50.00 

a month for each of the months that she paid the $100.00. You’re both responsible for 

health insurance. *** That’s my ruling. Going forward, I would hope that you can resolve 

it. I have ruled on the health insurance.” 

¶ 28 The court then moved on to the educational expenses. Brent’s counsel stated that the parties 

should share the cost of the tuition with each paying half. The court asked Kristi’s counsel if she 

was asking for something different than that, and he said, “No, your Honor.” Thereafter, the court 

stated, “All right. And that will go back for the entire time that the child was in school—that the 

children were in school; is that correct, Mr. Reed?” Kristi’s counsel stated, “If the court would 

consider making it that far retroactive, your Honor.” Brent’s counsel asked that it only go “from 

the date of the order forward.” 

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¶ 29 Thereafter, the court noted four issues: (1) the party’s net income for child support, 

(2) educational expenses and extracurricular expenses, (3) petitioner’s voluntary health insurance, 

and (4) attorney fees, and stated: 

“All right. As to net income, I will permit the petitioner to file an updated pay stub to 

calculate her net income. I am going to impute some income to respondent. I will permit 

the parties to brief the amount of imputed income and also arguments as to Section 179 

deductions. *** [T]his *** ruling *** is significant because I find the testimony of the 

respondent not credible as to his actual income and expenses. 

Sir, your testimony, unfortunately, doesn’t give me the ability to figure out what 

your income is. Accountants and preparation of tax returns can maybe, let’s say, massage 

the numbers to give you better tax advantage or to do things, but you have to know what 

you earn, and you have to know what you pay, and you have to be candid with the Court. 

*** I find that your Financial Affidavit was not accurate. I think the one thing that I can 

say was that likely did not reflect your actual expenses and your actual income. I heard 

testimony that there were things listed as your expenses that the company paid. Sounded 

like that might have also been included as income that you brought in that you had included 

as your income but then you subtracted it out as your expense[,] but it wasn’t your expense. 

It likely should have just been included in your income because it was in-kind payment to 

you, but you were paying out the expense. It was an in-kind payment to you because they 

paid it for you, but it was very difficult to follow, and not answering the questions doesn’t 

give me the information that I need *** to determine your net income. So, I am going to 

permit counsel to brief those amounts. You will be imputed some income. I do find that 

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the one thing I know is that you’re making more income than what your affidavit says. The 

question is[,] how much more. 

As to educational expenses and extracurricular expenses, I am going to rule that the 

education expenses shall be shared 50/50 by the parties retroactive to the start of the school 

year for 2019-2020. *** I will allow you to tender that agreement as to what that’s going 

to look like. There is going to be a refund from the respondent to the petitioner for what’s 

been paid for 2019-2020 school year or whether you are going to alternate payments on 

years. I will permit that to be tendered to me by agreement. If you don’t reach an agreement, 

I will come up with a way that I will order. 

The parenting *** [p]lan remains as previously entered regarding the 

extracurricular activities. So, it’s going to stay what it was. Share in it up to that dollar 

amount, and I will let counsel look at what that was. But my ruling is that I find no reason 

to change that.” 

¶ 30 After confirming that Kristi had been paying the voluntary health insurance premiums 

since June of 2014, and hearing arguments from counsel, the court continued: 

“All right. We’re not going to go back an indefinite amount of time, but we’re going to— 

you’re going to pay 50 percent of those voluntary premiums from 2018 to the present from 

January 1st, 2018[,] to the present.” 

¶ 31 The court also stated: 

“All right. Future calculation of the child support shall take into consideration all 

payments of health insurance regardless of where they fall. That should be able to be 

accomplished under the new format. If it’s not, counsel, you can let me know and we’ll 

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figure out what we’re going to do. Perhaps it’s just better to look at what insurance is best 

and cheapest and most accommodating. 

Fourth, petitioner’s request for contribution to attorney’s fees, um, I am going to 

reserve ruling and permit briefs on that issue.” 

¶ 32 The trial court ordered Brent to provide the tax, mortgage, and insurance information 

related to the 23 acres of the 113 acres owned by his business that was used to house the horses. 

The trial court’s February 13, 2020, docket hearing entry confirmed, inter alia, that education 

expenses would be shared 50/50 by the parties, “retroactive to the start of the school year or 2019-

2020,” and Brent was required to “pay for 50% of [Kristi’s] voluntary [health insurance] premiums 

from 1/1/2018 to present.” 

¶ 33 Kristi filed an updated paystub with the court on February 20, 2020, that listed her gross 

monthly income as $4825.60. Following submission of the posthearing briefs, which included 

Kristi’s claim that Brent’s monthly net income was $15,263 and Brent’s claim that his 2018 

monthly gross income was $7636.78, and a hearing on June 16, 2020, at which time the court heard 

arguments as to whether petitioner’s income should include money from the sale of the stock to 

Brent, the court issued a docket entry ruling that found: 

“1. THAT SAID STOCK SHALL NOT BE INCLUDED IN PETITIONER’S NET 

INCOME AS IT IS MORE IN THE NATURE OF SHARES OF STOCK CAPABLE OF 

BEING SOLD (IN RE MARRIAGE OF MARSH, 2013 ILL. APP. (2D) 130423 (2013)), 

RATHER THAN UNVESTED STOCK OPTIONS (IN RE MARRIAGE OF 

COLANGELO, 355 ILL. APP. 3D 383 (2005)). 

2. HEALTH INSURANCE SHALL BE SHARED 50/50 BY PARTIES. MINOR 

CHILDREN SHALL BE COVERED UNDER HEALTH INSURANCE OF 

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PETITIONER, SO LONG AS IT IS MORE COST-EFFECTIVE TO HAVE SAID 

COVERAGE, OR BY AGREEMENT OF THE PARTIES. 

3. INCOME OF RESPONDENT (AS TO ACTUAL AND IMPUTED) IS TAKEN 

UNDER ADVISEMENT. 

4. PETITIONER’S REQUEST FOR ATTORNEY’S FEES IS DENIED. 

COURT RULES THAT RESPONDENT[’S] GROSS INCOME (AS TO ACTUAL 

AND IMPUTED) IS SET AT $14,529.00 PER MONTH.” 

¶ 34 The child support calculations were submitted on July 15, 2020. On September 29, 2020, 

the trial court issued a docket entry order finding that Brent’s child support obligation beginning 

in September 2020 would be $1010.66. The court also noted the new issue arose toward arrearages 

and set the matter for a hearing which was held on November 24, 2020. Both parties filed their 

closing arguments on child support arrearage on December 22, 2020. 

¶ 35 On February 5, 2021, the trial court issued a docket entry order that ordered child support 

arrearage back to November 1, 2017. Thereafter the court found that Brent’s child support from 

(1) November 2017 to July 2019 was $1538.26 per month, (2) August 2019 to August 2020 was 

$785.56, and (3) September 2020 going forward was $1010.66 per month. On March 5, 2021, 

Brent appealed. 

¶ 36 II. ANALYSIS 

¶ 37 On appeal, Brent contends that the trial court (1) did not have subject matter jurisdiction to 

order him to pay one-half of Kristi’s supplemental health insurance policy or revise the health 

insurance obligation; (2) did not have subject matter jurisdiction to award educational expenses 

prior to the date Kristi filed her amended petition to modify; (3) erred when imputing income to 

Brent; (4) erred when it calculated Brent’s net income from the erroneous gross income; (5) erred 

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when it calculated Kristi’s gross income without interest or capital gain; and (6) erred in 

calculating the child support and arrearage based on the erroneous incomes. 

¶ 38 Health Insurance—Kristi’s Supplemental Policy 

¶ 39 Whether a court has subject matter jurisdiction to grant the relief provided is a question of 

law that is reviewed de novo. In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004). 

Decisions issued without jurisdiction are void. Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994). 

As noted by Ligon: 

“The court’s authority to exercise its jurisdiction and resolve a justiciable question is 

invoked through the filing of a complaint or petition. [Citations.] These pleadings function 

to frame the issues for the trial court and to circumscribe the relief the court is empowered 

to order; a party cannot be granted relief in the absence of corresponding pleadings. 

[Citations.] Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where 

no justiciable issue is presented to the court through proper pleadings, the court cannot 

adjudicate an issue sua sponte.” Id. 

¶ 40 The April 25, 2012, MSA stated that Brent “shall maintain health insurance” on the 

children and “each party shall be responsible for payment of one-half of all deductibles and 

expenses” not covered by insurance. None of the parties’ pleadings requested a contribution from 

Brent toward the supplemental insurance. The relevance of Kristi’s health insurance stemmed from 

the hearing on Kristi’s petition for rule to show cause at which time it was determined that Kristi 

voluntarily obtained supplemental health insurance on the children, via her new husband’s 

insurance at a cost of $100 per month, which covered amounts not paid by Brent’s primary health 

insurance on the children. The issue was whether Brent could take advantage of the supplemental 

policy towards his portion of the amounts remaining due after his insurance was used or if the 

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supplemental policy only applied to Kristi’s portion. Following the February 13, 2020, hearing, 

the trial court’s docket entry order stated, inter alia, that “Respondent [Brent] shall pay for 50% 

of those voluntary premiums from 1/1/2018 to the present.” 

¶ 41 “ ‘[A] judgment, order or decree entered by a court which lacks jurisdiction of the parties 

or of the subject matter, or which lacks the inherent power to make or enter the particular order 

involved, is void and may be attacked at any time or in any court, either directly or collaterally.’ ” 

(Emphasis omitted.) R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986) 

(quoting Barnard v. Michael, 392 Ill. 130, 135 (1945)). On appeal, Kristi argues that the trial 

court’s ruling was proper based on her rule to show cause prayer for relief which requested, 

“judgment be entered in favor of petitioner and against the respondent for all sums found due.” 

¶ 42 However, the purpose of a rule to show cause petition is to determine if a party has 

complied with a prior court order, allows the allegedly noncompliant party the opportunity to 

explain any noncompliance and, if necessary, allows the trial court to enforce the prior court order. 

See In re Marriage of LaTour, 241 Ill. App. 3d 500, 508 (1993). No part of the parties’ MSA 

required Brent to pay 50% of Kristi’s supplemental insurance. As such, the trial court’s order 

requiring Brent to pay 50% of Kristi’s supplemental insurance from January 1, 2018 (11 months 

prior to the filing of Kristi’s rule to show cause petition), to February 13, 2020, pursuant to Kristi’s 

rule to show cause petition is void for a lack of subject matter jurisdiction. 

¶ 43 Health Insurance—Modification of the Obligation 

¶ 44 Following the June 16, 2020, hearing, the trial court also modified the MSA to remove 

Brent’s obligation to pay for health insurance and placed the obligation on Kristi. On appeal, Brent 

contends that the trial court was without jurisdiction to make this modification. In response, Kristi 

contends that the trial court’s ruling was exactly what Brent requested in “Respondent’s 

17 
 

 

 

 

 

 

 

Demonstrative Aid Exhibit 1” filed with the court during the February 13, 2020, hearing. Kristi 

also argues that because health insurance is incorporated with child support that her petition to 

modify child support also covers the health insurance. 

¶ 45 While Brent contends on appeal that no petition to modify the health insurance obligation 

was before the court, there is no dispute that both parties submitted documentation to the trial court 

permitting the modification. On February 13, 2020, Brent submitted what was catalogued as 

“Respondent’s Demonstrative Aid #1” with the court. In that document, Brent stated, “As this 

Court can see, the Aids contemplate Respondent (Father) no longer carrying health insurance for 

the children. There is no reason for both parties to carry health insurance and Petitioner (Mother’s) 

policy is a much more inexpensive policy.” 

¶ 46 On July 15, 2020, Kristi’s counsel sent correspondence to the court that stated, inter alia, 

“The parties have agreed that primary coverage will be through Kristi’s *** employment and that 

they will be dividing equally the portion of the premium attributable to their children.” The 

remainder of this issue addressed the proposed order and the need to start the process for coverage. 

¶ 47 Later that same day, Brent’s counsel submitted his child support calculations. His pleading 

advised the court, “This Court further Ordered the parties to determine what the best insurance 

situation would be and equally share in the cost of such health insurance. This has not been 

finalized by the Parties and is still being worked on.” However, the pleading further stated that 

placing an arrearage burden on Brent would “cause an unnecessary financial hardship going 

forward especially in light of the fact that Respondent is going to continue to pay one-half of the 

tuition, paying one-half of the health insurance, and also paying child support on the imputed 

income set by the Court.” (Emphases added.) Nothing in Brent’s pleading contradicted the 

statements by Kristi’s counsel regarding the health insurance agreement. 

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¶ 48 “Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial 

court proceeds and later claim on appeal that the trial court’s actions constituted error.” (Internal 

quotation marks omitted.) Direct Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918, ¶ 36. 

“A party cannot invite an error by the trial court and then use it as a basis for appeal.” Id. Here, the 

record reveals that both parties invited the trial court to issue an order modifying the MSA’s health 

insurance obligation to Kristi and that both parties would contribute equally toward that premium. 

As such, we find the trial court did not err in modifying the health insurance obligation. 

¶ 49 Education Expenses 

¶ 50 Kristi’s amended petition to modify support requested contribution from Brent toward the 

children’s education expenses and was filed on December 26, 2019. The trial court’s oral February 

13, 2020, order ruled that “education expenses shall be shared 50/50 by the parties, retroactive to 

the start of the school year or 2019-2020.” (Emphasis added.) The trial court’s February 5, 2021, 

docket entry order clarified this was “essentially relating back to August 2019.” 

¶ 51 There is no dispute that the trial court’s order was retroactive to the start of the school year, 

which was prior to the filing of the amended petition to modify. While Kristi contends on appeal 

that the order should be interpreted in a manner that would not require Brent to pay any of the 

retroactive education expenses, Kristi’s interpretation is not what the trial court ordered. 

¶ 52 Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act states, “Except as 

otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 

505.2,[1] the provisions of any judgment respecting maintenance or support may be modified only 

as to installments accruing subsequent to due notice by the moving party of the filing of the motion 

for modification.” 750 ILCS 5/510(a) (West 2018). “[O]nce a petition has been filed and upon a 

1

Neither of these sections are applicable here. 

19 
showing of a substantial change in circumstances, support payments can be modified as of the date 

the petition was filed.” (Emphasis in original.) In re Marriage of Heil, 233 Ill. App. 3d 888, 895 

(1992). As the trial court’s order was retroactive prior to the date that Kristi filed the amended 

petition addressing the educational expenses, the order was contrary to law, and therefore, must be 

vacated. 

¶ 53 Imputed Income 

¶ 54 “In order to impute income to a party, the court must find that the payor is voluntarily 

unemployed, is attempting to evade a support obligation, or has unreasonably failed to take 

advantage of an employment opportunity.” In re Marriage of Liszka, 2016 IL App (3d) 150238, 

¶ 44. “If none of these factors are in evidence, the court may not impute income to the noncustodial 

parent.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009). The court’s decision to 

impute income is reviewed under an abuse of discretion standard. Id. 

¶ 55 Here, Brent claims that the trial court erred by imputing his income because it failed to 

provide one of the three above-stated reasons for the finding. However, the trial court found that 

Brent’s testimony regarding his income was not credible at the February 13, 2020, hearing. One 

of the issues at that hearing was “the setting of respondent’s income” to determine child support 

pursuant to Kristi’s petition to modify. Given the trial court’s finding, and the undisputed issue at 

the hearing, we conclude that the trial court imputed income to Brent because it believed that he 

was attempting to evade a support obligation. As such, the trial court’s finding that Brent’s income 

could be imputed is not against the manifest weight of the evidence. 

¶ 56 Amount of Imputed Income 

¶ 57 A trial court’s determination of income is reviewed under an abuse of discretion standard. 

Id. “The amount of income imputed by the court must be supported by evidence showing that it is 

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commensurate with the supporting parent’s skills and experience.” Liszka, 2016 IL App (3d) 

150238, ¶ 46. The amount “should be based on his earning capacity, not his spending habits.” Id. 

¶ 50. 

¶ 58 Here, Brent’s income stemmed from his employment and ownership of the Britton 

enterprises. The legislature provided the following guidance for calculating business income: 

“For purposes of calculating child support, net business income from the operation of a 

business means gross receipts minus ordinary and necessary expenses required to carry on 

the trade or business. *** The court shall apply the following: 

(A) The accelerated component of depreciation and any business expenses 

determined either judicially or administratively to be inappropriate or excessive 

shall be excluded from the total of ordinary and necessary business expenses to be 

deducted in the determination of net business income from gross business income. 

(B) Any item of reimbursement or in-kind payment received by a parent 

from a business, including, but not limited to, a company car, reimbursed meals, 

free housing, or a housing allowance, shall be counted as income if not otherwise 

included in the recipient’s gross income, if the item is significant in amount and 

reduces personal expenses.” 750 ILCS 5/505(a)(3.1) (West Supp. 2017). 

¶ 59 Our colleagues addressed the 2017 statutory change related to section 505(a)(3.1)(A) in 

In re Marriage of Hochstatter, 2020 IL App (3d) 190132, ¶ 24, stating: 

“It is clear that section 505(a)(3.1)(A) now explicitly excludes accelerated 

depreciation from the calculation of net business income and does not explicitly mention 

nonaccelerated depreciation. [Citation.] The implication from the continued omission of 

nonaccelerated depreciation from the plain language of the statute is that it could still be 

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deducted, but only if the court, in its discretion, determines it to be an appropriate and 

reasonable business expense that is required to carry on the trade or business. [Citation.] 

At a fundamental level, this is no different than the way nonaccelerated depreciation was 

handled in the preamendment version of section 505.” (Emphasis in original.) 

¶ 60 This court agreed with the Hochstatter discussion in In re Marriage of Burnett, 2021 IL 

App (5th) 200326-U. In Burnett, we addressed depreciation and noted that 

“under section 505, the court must first determine if any amount of the claimed depreciation 

is accelerated depreciation. If so, that amount must be excluded as it is not allowed when 

calculating income for the purposes of determining child support. Then the trial court must 

look at the nonaccelerated depreciation and decide as to whether the depreciation is an 

appropriate and reasonable business expense that is required to carry on the business.” Id. 

¶ 149. 

¶ 61 The trial court found that Brent’s imputed monthly gross income was $14,529. On appeal, 

Brent argues that the basis of the trial court’s imputed gross income was unknown and therefore 

its finding of net income was erroneous. Kristi agrees that the trial court’s gross income was not 

supported by the evidence and now argues that Brent’s net income should have been set at 

$18,721.59, because Brent’s gross monthly income should include the section 179 deductions, or, 

in the alternative, Brent’s living expenses.2 The parties correctly note that the trial court provided 

no basis for Brent’s income calculation or discussion as to whether the amount was determined 

2

“Ordinarily, when an appellee does not file a cross-appeal, the reviewing court will be confined to 

the issues presented by the appellant and will not consider issues presented by the appellee, except to the 

extent that they are related to the appellant’s issues.” People ex rel. Vuagniaux v. City of Edwardsville, 284 

Ill. App. 3d 407, 415 (1996). While there is no dispute that Kristi failed to file a cross-appeal pursuant to 

Illinois Supreme Court Rule 303(a)(3) (eff. July 1, 2017), it is equally undisputed that the argument involves 

the same issue raised by appellant. As such, we will consider Kristi’s argument. 

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pursuant to the business deductions or by Brent’s living expenses. As such, we decline to affirm 

the trial court’s finding. 

¶ 62 Regarding the business deductions, Brent’s tax forms specifically set forth the amount and 

type of depreciation for his businesses. Just as in Burnett, the tax depreciation report revealed the 

total depreciation; here the total was $340,653. The report also documented the “Method” used for 

depreciation, which included the use of “DB” or “Declining Balance” methods, which are 

accelerated depreciation methods. Of the total deductions, over $300,000 used the “Declining 

Balance” accelerated depreciation method. There was no finding by the trial court that any of the 

businesses’ accelerated depreciation was inappropriate or excessive; nor was any evidence 

submitted before the trial court that any administrative proceeding made such finding. As such, 

the accelerated depreciation amounts must be excluded from Brent’s income calculation under 

section 505. 

¶ 63 The remaining nonaccelerated depreciation must also be considered. In this regard, 

“[a]ssuming no other aspect of the statute prohibits a particular type of deduction, the trial court 

can now review each case and in its discretion determine whether a deducted expense is one which 

is ‘ordinary and necessary *** to carry on the trade or business.’ ” Id. ¶ 144. The requirement to 

prove the deducted nonaccelerated expense was repayment for debt has been eliminated. Id. 

¶ 64 Regarding Brent’s living expenses, we do not find Kristi’s alternative argument persuasive. 

Brent testified that his affidavit included his half of the business distributions which included his 

mortgage ($656.43), electric bill ($280.89), repairs and maintenance ($125), and license and 

stickers ($142.50), which equates to $1204.82 in section 505(a)(3.1)(B) in-kind income. Brent also 

testified that the business pays 100% of his cell phone ($36.17), his gas ($246.99), his vehicle 

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($475.56), and his health insurance ($1618.21), which equates to an additional $2376.93 in section 

505(a)(3.1)(B) in-kind income for a total of $3581.75. 

¶ 65 Brent’s testimony was consistent with his affidavit that revealed $2613.87 in business 

distribution and draws, and $1618.21 for his health insurance which equated to $4232.08, an 

amount slightly higher than his testimony, that was added to his $3117.50 in regular earnings and 

$135.42 in rental income to determine his gross monthly income of $7485. 

¶ 66 The remaining “expenses” claimed by Kristi consist of Brent’s vacation, his wife’s medical 

bills, his wife’s personal expenses for clothing and grooming, the money used to purchase Kristi’s 

stock, and the mortgage, property tax, and insurance related to the 113 acres. Contrary to Kristi’s 

argument, the record reveals no testimony, or evidence, that any of the Britton businesses paid any 

portion of Brent’s vacation, his wife’s medical bills, his wife’s personal expenses, or purchased 

Kristi’s stock. As such, Brent’s spending habits are irrelevant and of no merit. Liszka, 2016 IL App 

(3d) 150238, ¶ 46. 

¶ 67 Only Kristi’s claim regarding the monthly expenses associated with the 113 acres has merit 

because this would also be section 505(a)(3.1)(B) in-kind income. We note, however, that Kristi’s 

closing argument requested the trial court impute $257 to Brent’s monthly gross income, stating 

his use of the 23 acres accounted for 20% of the $1285 monthly payment. On appeal, Kristi now 

contends that the entire $1285 monthly payment should be imputed to Brent. “A party cannot invite 

an error by the trial court and then use it as a basis for appeal.” Direct Auto Insurance Co., 2019 

IL App (1st) 172918, ¶ 36. 

¶ 68 Here, it appears the trial court may have been persuaded by Kristi’s erroneous arguments 

related to accelerated depreciation and Brent’s spending habits. As such we find the trial court’s 

determination that Brent’s gross monthly income was $14,529 was in error and vacate the finding. 

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On remand, the trial court must determine which business deductions were accelerated, remove 

them from consideration, and then determine from the nonaccelerated depreciation which amounts 

were reasonable and necessary to carry on the business. Any amount the trial court finds does not 

meet the reasonableness and necessary standard may be imputed to Brent’s income, at the court’s 

discretion. We also leave it to the trial court’s discretion to determine whether it wishes to impute 

the $257 related to the 113 acres pursuant to section 505(a)(3.1)(B) to Brent’s gross monthly 

income of $7485. 

¶ 69 Kristi’s Income 

¶ 70 Brent argues that the trial court’s finding that Kristi’s income should not include the money 

received from her sale of Britton stock after finding this case was “more in the nature of shares of 

stock capable of being sold (In re Marriage of Marsh, 2013 IL App (2d) 130423), rather than 

unvested stock options (In re Marriage of Colangelo, 355 Ill. App. 3d 383 (2005)).” Brent 

contends that the trial court’s interpretation of Marsh was in error because, in that case, there was 

no “evidence or testimony that the sale yielded no profit or was otherwise sold at a loss.” 

¶ 71 While Brent contends the trial court’s decision was in error, Brent has not provided an 

adequate record for this court to address the issue. The trial court’s June 16, 2020, docket entry 

reveals that arguments as to whether Kristi’s income should include money from the sale of the 

stock were presented to the trial court on that date; however, no report of proceedings regarding 

this issue was included in the record on appeal. The appellant has the duty of presenting a complete 

record on appeal. In re Marriage of Naylor, 220 Ill. App. 3d 366, 370 (1991). The record on appeal 

shall consist of “the judgment appealed from, the notice of appeal, *** the entire original common 

law record,” and “any report of proceedings.” Ill. S. Ct. R. 321 (eff. Feb. 1, 1994). “Where a party 

desires to have a judgment reviewed it is incumbent upon him to present a record of the 

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proceedings and judgments sufficient to show the errors of which he complains.” Higgins v. 

Columbia Tool Steel Co., 76 Ill. App. 3d 769, 776 (1979). 

¶ 72 Here, Brent contends that the agreement to sell the stock was “tendered to the Court and 

entered into evidence” but provides no cite to the record as to the location of this document 

contained within the 809 pages of exhibits or 482 pages comprising the common law record. Brent 

further contends that there “was no testimony as to the amount considered as the basis for the value 

of the stock and what she sold it for,” but the record fails to include the record of proceedings from 

the date of the argument or whether the trial court provided a rationale as to why this information 

may not have been necessary. In the absence of a sufficient record, “it will be presumed that the 

order entered by the trial court was in conformity with law and had a sufficient factual basis.” 

Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). “Any doubts which may arise from the 

incompleteness of the record will be resolved against the appellant.” Id. As such we affirm the trial 

court’s ruling. 

¶ 73 Child Support and Arrearage 

¶ 74 Since the trial court’s determination of Brent’s gross monthly incomes was in error, we 

vacate its determinations for child support and arrearage. We remand the case back to the trial 

court to recalculate the appropriate child support and arrearage after determining the proper 

amount to impute to Brent’s monthly gross income based with the nonaccelerated business 

deductions and whether it wishes to impute the $257 related to the 113 acres as in-kind income. 

¶ 75 III. CONCLUSION 

¶ 76 For the reasons stated herein, we vacate the trial court’s orders requiring Brent to reimburse 

Kristi for her supplemental health insurance back to January 2018 pursuant to a rule to show cause 

hearing, affirm the trial court’s order modifying the obligation to provide the children’s health 

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insurance, vacate the trial court’s order making the educational expenses retroactive to a date prior 

to the filing of the petition, affirm the trial court’s decision to impute income to Brent, vacate the 

trial court’s calculation of Brent’s gross and net income, affirm the trial court’s finding that Kristi’s 

sale of stock should not be included in her net income, vacate the trial court’s orders regarding the 

amount of child support and arrearage due in this case, and remand the case to address the issues 

set forth herein in a manner consistent with this decision. 

¶ 77 Affirmed in part and vacated in part; cause remanded. 

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No. 5-21-0065 

Rule 23 Order Filed: January 27, 2022 

Motion to Publish Granted: February 24, 2022 

Opinion Filed: February 24, 2022 

Cite as: In re MARRIAGE OF BRITTON, 2022 IL App (5th) 

210065 

Decision Under Review: Appeal from the Circuit Court of Williamson County, 

No. 12-D-183; the Hon. Carey C. Gill, presiding. 

Attorneys David M. Gotzh, Law Office of David Gotzh, 444 N. 

For Michigan Ave., Suite 1200, Chicago, IL 60610 

Appellants: 

Attorney Gerald S. Reed, Reed, Heller & Cannell, 1100 Walnut, P.O. 

For Box 727, Murphysboro, IL 62966 

Appellees: 

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