High-income situations

In high-income situations, some parents have argued that a child support award consistent with the guidelines would be improper because it would exceed the child’s actual needs and present a windfall to the custodial parent. Others have argued that no matter what the consequences, the court should apply the percentages set forth in the guidelines. An advocate should not only be familiar with the cases set forth below and their nuances but also pursue discovery and a creative presentation that will convince the court to apply the statute in a way most advantageous to the client and, more importantly, to the children of the parties.

In cases in which either or both parents earn a high income, the parents themselves have often established a pattern of children’s expenses such as private schooling, vacationing, and household help that is beyond the experience of most people. In re Marriage of Eddy, 210 Ill,App.3d 450, 569 N.E.2d 174 155 Ill.Dec. 174 (1st Dist. 1991)(involving payment of child support of $4,3000 per month to custodial parent plus direct payments to third parties on behalf of child). Cf. In re Marriage of Bush, 191 Ill.App.3d 249, 547 N.E.2d 590, 138 Ill.Dec. 423 (4th Dist. 1989)(four-year-old child of two physicians with high incomes was not entitled to lavish lifestyle or windfall).

In In re Marriage of Bussey, 108 Ill.2d 286, 483 N.E.2d 1229, 91 Ill.Dec. 594 (1985), the Illinois Supreme Court rejected the argument that a child is entitled to receive support only for basic “shown needs.” As the court noted, to accept that argument would be to read the “standard of living the child would have enjoyed had the marriage not been dissolved” out of the statute and to deny the child that benefit. As the court said in other words, “A child is not expected to have to have to live at a minimum level of comfort while the non-custodial parent is living a life of luxury.” 483 N.E.2d at 1234. The court found no abuse of discretion in increasing the support to a $900 per-month award for two children based on a $14,000 per-month income, in addition to direct payments for certain expenses of the children for medical care, counseling, and private schooling. This award represented approximately 6.5 percent of the non-custodial parent’s income (the case does not reflect the original amount of support).

Despite Bussey, the Fourth District reversed an award that exceeded the child’s actual needs in Marriage of Bush, supra. In Bush, the father had a monthly gross income of $24,978, and the mother had a monthly gross of $7,200. The couples were both physicians and had one child. The trial court ordered the father to establish a trust fund on behalf of the child in the amount of $18,767, to pay $800 per month in child support, to maintain in life insurance policy naming the child as a beneficiary, and to continue to contribute to the trust in amount equal to 20 percent of his net income minus the cost of the life insurance policy and the $800 monthly cash support payments. 547 N.E.2d at 595. The court stated, “We are not required to equate large incomes with lavish life-styles.” 547 N.E.2d at 597.

The mother in Bush argued that the award was insufficient because the $800 was only six percent of the father’s income. The father argued, on the other hand, that the award was excessive because it far exceeded the child’s needs, particularly in view of each parent’s separate abilities and incomes. The appellate court agreed with the father. After noting that twenty percent of the father’s income would be $30,000 per year, or more than the average income of most Americans, the court stated it had great reservations about finding any four year old boy entitled to that amount. The court concluded that there were no unmet needs and the only issue was one of lifestyle. The court acknowledged that it must consider the standard of living a child would have enjoyed absent the parental separation and marital dissolution; however, the court refused to award what it considered to be a windfall to the child. 547 N.E.2d at 596.

Shortly thereafter, the Fifth District claimed to distinguish and refused to follow Bush in In re Marriage of Rogliano, 198 Ill.App.3d 404, 555 N.E.2d 1114, 144 Ill.Dec. 595 (5th Dist. 1990). Instead, it followed its own earlier holding in In re Marriage of Tatham, 173 Ill.App.3d 1072, 527 N.E.2d 1351, 123 Ill.Dec. 576 (5th Dist. 1988), which upheld an award that exceeded the child’s needs because she would clearly have enjoyed a high standard of living had the marriage not been dissolved.

In Rogliano, the father had a net monthly income of approximately $5,100. Based on the guidelines, the trial court had awarded $1,100 per month in child support, 555 N.E.2d at 1116. The father argued that the amount exceeded the actual needs of the child. The appellate court held that the award was proper both because it was consistent with the standard of living the child would have enjoyed had the marriage not been dissolved and because the non-custodial parent had the ability to pay. 555 N.E.2d at 1119. Rogliano cited Bussey, supra, as support for its conclusion that the award is not limited by “shown needs.”

The second District has also cited Bussey for the proposition that a child support award is not limited to the shown needs of the children. In re Marriage of Scafuri, 203 Ill.App.3d 385, 561 N.E.2d 402, 149 Ill.Dec. 124 (2d Dist. 1990). In Scafuri, the trial court had entered an order requiring the father to pay $10,000 per month in child support for his three children, which was 32 percent of his income as provided in the guidelines. The appellate court, noting that the utility of the guidelines decreases as net income increases, also stated that when dealing with above-average incomes, the facts of each particular case become more critical in determining whether the guidelines should be followed. After reviewing the facts in Scafuri, the court, while considering both the children’s shown needs and their lifestyle, reduced the award to $6,000 per month, apparently because the language of the trial court could be read as having included in the monthly award some “ersatz maintenance” in a case in which maintenance had allegedly been reserved.

Determining a child support amount when the obligor spouse earns a high income involves balancing the child’s needs an the standard of living the child would have enjoyed absent the dissolution. In re Marriage of Lee, 246 Ill.App.3d 628, 615 N.E.2d 1314, 1326, 186 Ill.Dec. 257 (4th Dist. 1993). Lee affirmed a child support award $3,000 per month for a ten year old child when the child had been afforded frequent opportunities for national and international travel along with a standard of living that had included a facsimile machine in his room and computer equipment for educational purposes. While the trial court stated that the amount of support was “more than adequate to support the child,” the Fourth District stated that the award was consistent with the above-average standard of living that the child had been afforded.

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