Percentage vs. Amount Dilemma in Specifying Support

When the guidelines were first passed, many child support orders were written simply to incorporate a percentage amount (e.g., “As and for child support, Jack Jones shall pay Shirley Jones 25 percent of his net income from all sources on an annual basis.”). That practice has long been disapproved by case law. In keeping with the express language of IMDMA §505(a)(5), a final support order must be stated in a specific dollar amount, not merely a percentage of net income. In re Marriage of Wassom, 165 Ill.App.3d 1076, 519 N.E.2d 1147, 116 Ill.Dec. 932 (4th Dist.), appeal denied, 122 Ill.2d 595 (1988). In an attempt to avoid the harsh consequences of that ruling, which affirmed the refusal to enforce a percentage order, practitioners have adopted the common practice of stating the support amount in the alternative – i.e., as a fixed dollar sum or a percent figure (e.g., “$200 per week or 20 percent of her weekly net income, whichever is greater”).

Such an order, however, may be unenforceable because it too violates §505(a)(5). In re Marriage of Ferguson, 207 Ill.App.3d 649, 566 N.#.2d 335, 152 Ill.Dec. 648 (1st Dist. 1990). Note, however, that in In re Marriage of Fahy, 208 Ill.App.3d 677, 567 N.E.2d 552, 153 Ill.Dec. 594 (1st Dist. 1991), which involved an order for $700 or 45 percent of the father’s net income, whichever wasgreater, the court said that even though the percentage amount was invalid, the specific dollar amount in that order could be enforced providing it was otherwise valid.

A first District case, In re Marriage of Sheetz, 254 Ill.App.3d 695, 627 N.E.2d 154, 194 Ill.Dec. 38 (1st Dist. 1993), interpreted §505(a) as meaning that orders that state child support as a percentage of income rather than a dollar amount violate the IMDMA, exceed the court’s jurisdiction, and are void. See also In re Marriage of Ingram, 259 Ill.App.3d 685, 631 N.E.2d 386, 197 Ill.Dec. 383 (2d Dist. 1994) (following Sheets interpretation).

However, other recent Illinois appellate courts have declined to follow Sheetz. Based on the above statutory provision and Sheetz, the petitioner in In re Marriage of Singleteary, 293 Ill.App.3d 25, 687 N.E.2d 1080, 227 Ill.Dec. 598 (1st Dist. 1997), unsuccessfully argued that a child support order was void because it was based on a percentage of income or a certain sum.

Other cases have held that although an order improperly designates child support as a percentage of the father’s income rather than listing a dollar amount as required by statute, the order is not void for lack of jurisdiction. See In re Marriage of Baggett, 281 Ill.App.3d 34, 666 N.E.2d 850, 217 Ill.Dec. 181 (5th Dist. 1996); In re Marriage of Florence, 260 Ill.App.3d 116, 632 N.E.2d 681, 198 Ill.Dec. 351 (4th Dist. 1994). These courts reason that although a judgment that provides a percentage rather than a dollar amount may be erroneous, the legislature did not expressly direct that child support orders that do not set out support in dollar amounts are void. Florence, 632 N.E.2d 685; In re Marriage of Scott, 286 Ill.App.3d 1056, 678 N.E.2d 1, 222 Ill.Dec. 594 (3d Dist. 1996). Also, In re Marriage of Liss, 268 Ill.App.3d 919, 645 N.E.2d 341, 206 Ill.Dec. 336 (1st Dist. 1994), examined the legislative history of the IMDMA and concluded that the order requiring the father to pay $100 per week in child support or 20 percent of his net income, whichever was greater, carried out the statutory goals. In Marriage of Singleteary, supra, the court agreed with the jurisdictional view adopted in Florence, Liss, and Baggett that the IMDMA does not, by its terms, prohibit the use of percentage rate in a child support order.

Addressing this ongoing dilemma in early 1998, the Illinois Supreme Court ruled that child support agreements stated in terms of percentages of income rather than specific dollar amounts violate the IMDMA, In re Marriage of Mitchell, 181 Ill.2d 169, 692 N.E.2d 281, 229 Ill.Dec. 508 (1998). The court, without written dissent, held that a Lake County circuit judge erred in approving a settlement agreement that set the former husband’s monthly child support obligation at 25 percent of his net income, subject to specified minimum and maximum limits. But Justice Benjamin K. Miller, writing for the court, further found that the agreement was “voidable” rather than “void,” meaning that the trial court’s order approving the settlement had been subject to “collateral attack” more than two years after it was entered. 684 N.E.2d at 284 – 285. The court therefore reversed the ruling of the Second District Appellate Court, which had held that the agreement could not be enforced in favor of former wife Vicky Mitchell. “In this case, the parties had the opportunity to fully litigate this question when the support order was entered, and they had as well the opportunity to bargain for, and benefit from, the terms of the settlement agreement.” 684 N.E.2d at 285. “Moreover,” the court added, “numerous other support orders could be subject to collateral attack if the present decree were found void.” Id.

The case arose when a judge on his own motion ruled that the agreement another judge had approved was void and unenforceable under IMDMA §505(a)(5), and the Second District Appellate Court affirmed that ruling: “Because an order which states child support as a percentage of income is beyond the court’s authority, it is void and unenforceable,” In re Marriage of Mitchell, No. 2-95-1594. Rule 23 (2d Dist. July 29, 1996). The Supreme Court on December 4, 1996, allowed Vicky Mitchell’s Rule 315 petition for leave to appeal and subsequently reversed the appellate court’s order and remanded the case to the circuit court for further proceedings on the remaining issues raised by the parties. After noting that IMDMA §505(a)(5) “states that ‘[t]he final order [for child support] in all cases shall state the support level in dollar amount,’” Justice Miller wrote the following:

We believe that the plain language of the statute requires that the final order state the support level solely in dollar amounts. The legislature used the mandatory word “shall” to provide that in “all cases” child support “shall” be stated in dollar amounts and made no reference to the inclusion of payments as a percentage. To allow settlement agreements to be expressed in part as a percentage, as was done here, would require us to read into the statute payment options that the legislature did not include. 684 N.E.2d at 283

But the court said that, in spite of the circuit court’s “erroneous judgment, its order was not void because the trial court had jurisdiction over the parties and the subject matter and had authority to issue the order. “The original dissolution judgment of the trial court awarding child support to be paid as a percentage of net income with fixed dollar limitations is voidable, not void, and is not subject to collateral attack,” Miller wrote, citing People v. Davis, 156 Ill.2d 149, 619 N.E.2d 750, 189 Ill.Dec. 49 (1993). 684 N.E.2d at 284.

The Illinois General Assembly modified IMDMA §505 to assist practitioners in the percentage versus dollar amount quandary. IMDMA §505(a)(5) provides as follows:

If the net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor’s net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.

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