More time, same bill

Increased overnights not enough to modify support

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.
celia.gamrath@cookcountyil.gov

March 2020

Child support is a flexible concept and modifiable based on a substantial change in circumstances. See 750 ILCS 5/510. A modification works both ways. Support may go up; it may go down.

There are many decisions in Illinois that explain what is required to prove a substantial change in circumstances to warrant modification of child support. The recent case of In re Marriage of Wengielnik, 2020 IL App (3d) 180533, demonstrates the burden placed on movants in proving whether a substantial change in circumstances has been met.

In Wengielnik, the parties entered into a joint parenting agreement that provided the husband with 82 overnights of parenting time in 2016. In December 2016, the husband received additional overnights with the child, totaling 130 overnights in odd years and 148 overnights in even-numbered years.

Based on the increased parenting time, the husband filed a motion to modify his child support obligation. The husband took the position that he need not show how the extra parenting time impacted the parties’ financial matters. Rather, all he had to show was an increase in parenting time, which presumably added additional costs to him. As such, the husband presented no financial information concerning any change in financial circumstances or change in the needs of the child.

The trial court in Will County directed a finding in favor of the wife, finding no substantial change in circumstances occurred to warrant modification of child support. The 3rd District Appellate Court affirmed the decision.

On appeal, the husband argued the trial court abused its discretion in finding that the change in parenting time alone did not constitute a substantial change in circumstances warranting a modification of child support. In affirming, the appellate court used the manifest weight of the evidence standard instead of abuse of discretion.

The court reasoned an abuse of discretion standard only applies once the court finds a substantial change of circumstances and grants or denies a modification. When the court finds no substantial change in circumstances has occurred, it reviews whether the manifest weight of the evidence supports the court’s finding. Using this less deferential standard, the appellate court affirmed.

The appellate court recognized the court’s wide latitude in determining whether a substantial change in circumstances has occurred. A drastic change in parenting time may constitute a substantial change, but typically more is required, such as a considerable change in the child’s needs, a parent’s ability to pay or both.

The court rejected the husband’s attempt to analogize a modification of child support under 750 ILCS 5/510 to a modification of parenting time under 750 ILCS 5/610.5(e). The husband argued that under Section 610.5(e), an increased amount of parenting time (as little as 6%, he argued) is not considered a “minor” modification for purposes of parenting time. Correspondingly, a 15% change in parenting time ought to be considered “substantial” enough to warrant modification of child support under Section 510.

Both the circuit and appellate courts said this is “not an apple to apple comparison.” The statute relating to a modification of parenting time requires a court to consider different things than the statute relating to a modification of support.

An increased amount of overnights, standing alone, is generally insufficient to connote a substantial change in circumstances for purposes of modifying child support. Rather, the movant should put forth evidence about how the change in parenting time impacts the finances of the parties or affects the child’s needs.

As the appellate court described aptly:

“Without some evidence about either of these issues, the trial court is left to guess who is shouldering the financial burden of raising the child or whether the child would suffer detriment from a modification in support. While it may seem implicit that an increase in parenting time automatically includes an increase in expenses for the parent exercising additional time, trial courts are not in the position to make such bold assumptions.” Wengielnik, 2020 IL App (3d) 180533, ¶ 17.

Because the determination of whether a substantial change in circumstances has occurred is determined on a case-by-case basis, parents who want to reduce their child support obligation must present a strong case that a substantial change in circumstances has occurred.

This generally requires proof of not just an increased amount of parenting time, but an impact on the financial circumstances of the parties and greater expenses for the children or changes in their needs. Simply relying on an increased number of overnights probably will not carry the day.