IRMO Turk — Child Support
by Wes Cowell; updated 13 February 2016 -- suggest a correction
Child support is meant to be flexible to accommodate many circumstances. So flexible, in fact, that in divorce cases support sometimes flows from the custodial parent to the non-custodial parent. The rule may not apply, however, in cases where the parents never married. Need advice? Call, leave your info, orschedule schedule a consultation.
Background: Both parents owe a duty to support their children. Illinois law (750 ILCS 45/3) says:
The parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents.
Usually with younger kids, the children spend time more with one parent than the other. In such a case, the court usually presumes that the "residential parent" is providing support to the children because the kids spend so much time there. The non-residential parent therefore must contribute; and that comes in the form of child support.
Sometimes, however, as the kids get older the parenting schedule shifts closer to a 50 / 50 arrangement. That may warrant a reduction in support under 750 ILCS 5/505(a)(2). In other cases a custodial parent may earn much more than the non-custodial / non-residential parent; also warranting a reduction of support under 750 ILCS 5/505(a)(2). Because both parents owe a duty to support their childred, circumstances can arise where the custodial parent pays child support to the non-custodial parent. Here are the cases that have touched on this topic:
Elble v. Elble -- Custodial Parent Had to Pay Noncustodial Parent -- (1968): Frances and James Elble divorce in 1955 and James was awarded custody of their 5 year old daughter. The child soon went to live with Frances, however, and James refused to support mother and daughter, financially. Eventually Frances went back to court to modify the custody award to reflect reality and to seek child support from James. The court said that there was no reason to change custody (go figure) and that it would not "force a 17 year old girl to live with her father if she does not desire." The court then ordered James (who retained custody) to pay Frances $100 / month for child support. James appealed.
The appellate court affirmed the denial of the Frances's request to modify custody, but held that the 17 year old daughter could continue to live with her and said James -- even though he retained custody -- would have to pay Frances $100 per month for child support saying:
We are sympathetic to defendant's argument that he has the burden of support without the concomitant benefits of having Gail reside with him in his home, but this does not affect his duty to support her. . . . It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into this world until they are old enough to take care of themselves."
Elble v. Elble, 100 Ill.App.2d 221, 241 N.E.2d 328, (5th Dist., 1968).
Shoff v. Shoff -- No Reason for Custodial Parent to Pay Noncustodial Parent -- (1989): Prior to their divorce, Danny Shoff moved to Illinois with the couple's one-an-a-half year old daughter. Cynthia moved to Illinois shortly after Danny. The divorce was finalized in Nevada in June, 1981, awarding Cynthia custody of the baby. They registered the divorce in Illinois. Almost immediately, Cynthia decided to move to Florida with the baby and Danny agreed.
Cynthia lived in Florida with the baby until November, 1984, when the child returned to Illinois to live with Danny. Danny didn't file custody modification papers, right away. Even though the child was living with Danny, Cynthia still tried several times over the next few years to collect child support from Danny.
In November, 1986, Danny moved to seek temporary custody, but he forgot to ask that his child support obligation also end. The court granted Danny's temporary custody request that same month. Cynthia then complained that orders are orders and Danny didn't consistently pay support according to the court order (even though the child lived with Danny) over the past two years. Got that? Danny obtained temporary custody, but the child support order was still in place saying Danny had to pay support to Cynthia and she wanted to hold him to his obligation by this legal technicality.
Danny finally got around to seeking permanent custody and an official end of his obligation to pay support to Cynthia. The court granted Danny's request for permanent custody; and regarding Danny's obligation to pay support to Cynthia the court found "as a matter of equity and fairness, that [Danny's] obligation to pay child support terminated [retroactively] when the temporary custody order entered." Equity and fairness? What about the law?
Cynthia appealed. The appellate court affirmed the trial court's "equity and fairness" ruling and added:
Where a custodial parent is directly providing for all of a child's financial needs, there is no reason to require the custodial parent to pay child support to the non-custodial parent. The trial court properly determined that [Danny's] obligation to pay child support terminated on the date the order was entered granting him temporary custody of the child.
Shoff v. Shoff, 179 Ill.App.3d 178, 128 Ill.Dec. 280, 534 N.E.2d 462, (5th Dist., 1989).
In re: Marriage of Cesaretti -- Support Flows from Higher Earner to Lower Earner (1990): Sherry and Daryl Cesaretti married in October, 1984, had a child in September, 1985, and filed for divorce in January, 1986 that wasn't concluded until July, 1989. At the conclusion of the divorce trial, the judge awarded Daryl custody of the (3 y.o.) child but for only six months after which time the award was to be reconsidered. Daryl earned about $20,000 per year and had monthly expenses of about $1,000. Sherry earned only $7,000 per year and had monthly expenses of about $2,000 -- she was in debt about $20,000. Daryl and Sherry were given equal parenting time, and Daryl was ordered to pay Sherry $75 per week for child support. Darryl objected and appealed. Darryl cited Shoff and argued that once legal and physical custody is placed in one parent, that custodial parent has no obligation to pay child support to the noncustodial parent. The appellate court found Shoff inapplicable and said:
Because of the equal amount of time spent with the child, and hence the relative financial contribution, we do not find the trial court's award of support to be manifestly erroneous. In addition, we note the disparity in the financial conditions of the parties. While the financial responsibility for the support of a child is the joint obligation of the parents, it is only equitable that the parent with the disproportionately greater income should bear a greater share of the costs of support.
In re: Marriage of Cesaretti, 203 Ill.App.3d 347, 561 N.E.2d 306, (2d Dist., 1990).
In re: Marriage of Turk -- Supreme Court Says Custodial Parent Pays When Warranted (2014): Steven and Iris Turk married in October, 1993 and divorced twelve years later in July, 2005, when their two sons were 6 and 8. They agreed that they would share joint custody of the boys but that the boys would live primarily with Iris and Steven would pay her $4,000 / month in unallocated child support and maintenance.
Steven and Iris continued to disagree about custody issues and in October, 2010, Steven was awarded temporary "physical custody" (the term doesn't exist in Illinois law) of the boys and Iris's contact with the children was to be supervised. The older son stopped seeing Mom, altogether. Steven and Iris agreed that his payments to her would be reduced to $700 / month "based upon the current parenting schedule."
Steven then asked that Iris pay child support to him (he WAS the "primary residential parent") and to stop even the $700 / month payments to Iris because the younger son (the only one then visiting with Iris) was away at summer camp and Iris had no contact with that child and, therefore, she had no expenses to cover for either child.
Another agreement was reached that gave Steven sole custody for all decision making. Iris's visitation was expanded for the younger son and re-established as a one-dinner-per-week schedule for the older boy. When it got to Steven's request to stop the $700 / month payments, the court considered that Steven earned about $150,000 / year to Iris's less-than-$10,000 / year. The court then calculated what Steven's support obligation to Iris would be if custody had not been modified -- coming up with "somewhere in the neighborhood" of $2,500 per month. Got that? The judge calculated what the custodial parent would pay to the non-custodial parent because Steven earned so much more than Iris and because that was what had been happening all along -- Steven had always paid Iris . . . so the calculation just kind of kept working that way even though Steven had been made the custodial parent. The judge then reasoned that because the boys spent about 25% of their time with Iris, the monthly support award ($2,500) should be reduced to about 25% of its original amount. The court ordered Steven to pay Iris $600 / month.
Steven appealed. The appellate court said the only problem was that the trial court, instead of showing its math, seemed to pull the $600 / month figure out of thin air. Instead, the appellate court said, the judge should have considered "what monies Iris pays when she has visitation with the children" and should "clearly explain the basis for any support awarded, as required by section 505." Turk v. Turk I. Before the trial court had a chance to do what the appellate court directed on remand, Steven appealed to the Illinois Supreme Court. He lost, again.
The Illinois Supremes said:
Section 505(a) was intended to protect the rights of children to be supported by their parents in an amount commensurate with the parents' income.
. . . .
a trial court may order the custodial parent to pay child support to the noncustodial parent where circumstances and the best interest of the child warrant it.
Turk v. Turk, 2014 IL 116730 (Ill., 2014)
Justice Theis, joined by Justice Thomas, agreed with the majority's conclusion, but said they got the math wrong. Justice Theis said the child support law (750 ILCS 5/505) should be the starting point and it should start by being applied to the non-custodial parent. The method the trial court applied (and that the appellate court and the majority of the Supremes, by failing to criticize, tacitly approved) was to apply the statutory guidelines not to the non-custodial parent, but to the wealthier parent. Theis pointed out that:
The legislature, however, did not intend the guidelines to operate in this fashion. As our appellate court has long recognized, the statutory child support guidelines create a rebuttable presumption that a specified percentage of a noncustodial parent's income constitutes an appropriate child support award.
. . . .
The trial court cannot begin the award calculation in one case by applying the guidelines to the income of the noncustodail parent, and in the next case, by applying the guidelines to the income of the custodial parent, as the trial court did in this case.
. . . .
The trial court . . . should have first determined the presumptively reasonable amount of support that Iris, the noncustodial parent, should pay to Steven, the custodial parent, under the guidelines set forth in section 505(a)(1). After making that determination, the court could then consider whether, pursuant to section 505(a)(2), a deviation from that amount is appropriate, based on the best interest of the couple's two sons, in light of the evidence regarding the financial, emotional, and educational needs of the children, and the financial resources and needs of Iris and Steven. As this court has explained, "If application of the guidelines generates an amount that the court considers inappropriate, then the court should make a specific finding to that effect and adjust the amount accordingly."
Turk v. Turk, 2014 IL 116730 (Ill., 2014),citing In re Marriage of McGrath, 2012 IL 112792.
Conclusion: So, there you have it: in divorce cases, apply the guidelines to the noncustodial parent's income unless the custodial parent earns a lot more. Where is the cutoff? When do you make the switch from custodial to non-custodial? No one knows. Give it a whirl and if you don't like the result, appeal.
The Turk Rule in Parentage Cases: Illinois overhauled its parentage law effective 1 January 2016. The old law (750 ILCS 45/14) said:
"The court shall, in any event and regardless of the amount of the non-custodial parent's net income, in its judgment order the non-custodial parent to pay child support to the custodial parent in a minimum amount of not less than $10 per month . . . ."
750 ILCS 45/14
That language created a conflict with the Turk ruling. Turk says support may flow in either direction; but under the old parentage law child support could travel only on a one-way street. The new parentage law (effective 1 January 2016) remedies the problem. It says:
"any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder . . . ."
The new law also defines "obligor" and "obligee" as:
(e) "Obligor" means the individual who owes a duty to make payments under an order for support.
(f) "Obligee" means the individual to whom a duty of support is owed or the individual's legal representative.
850 ILCS 28/15(e) an d(f).
Until the new law takes effect 1 January 2016, there is a conflict between the Parentage Act and the Turk Ruling. After 1 January 2016, the conflict will be resolved and Turk will be the law of the land (of Lincoln).
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