# In Re Marriage of Minear > Appellate Court of Illinois · May 8, 1997 · 287 Ill. App. 3d 1073 URL: https://www.frixlaw.com/law-library/cases/9725636 ## Case - **Full name:** In Re MARRIAGE OF PAULA B. MINEAR, Petitioner-Appellee, and ROBERT E. MINEAR, Respondent-Appellant - **Court:** Appellate Court of Illinois - **Decided:** May 8, 1997 - **Citations:** 287 Ill. App. 3d 1073; 223 Ill. Dec. 405; 679 N.E.2d 856; 1997 Ill. App. LEXIS 266 - **Precedential status:** Published - **Opinion:** Dissent by Cook - **Judges:** Knecht, Cook - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9725636 ## How later opinions describe it (automated extraction) - holding that depreciation is not an expenditure for the repayment of debt and therefore not deductible ## Opinion text JUSTICE COOK, dissenting: I respectfully dissent. Why should we even be concerned with whether depreciation expense should have been deducted from Robert’s net income under section 505(a)(3) of the Act? Section 505(a)(3) deals with child support, and Robert has not been ordered to pay child support. Robert was ordered to pay maintenance and attorney fees. I question whether section 505(a)(3)’s definition of net income has any bearing on maintenance or attorney fees. I address the issue, however, because it is addressed in the majority opinion. For the reasons set out in my separate opinion in Gay (279 Ill. App. 3d at 150-52, 664 N.E.2d at 95-96 (Cook, P.J., concurring in part and dissenting in part)), I disagree with the majority’s conclusion that section 505(a)(3) provides a comprehensive listing of the deductions that may be taken in determining income or net income. The section may work satisfactorily for employees who receive a paycheck, but it cannot be rigidly applied to determine the income of self-employed individuals. As I understand the majority opinion, a self-employed individual may deduct expenses such as cost of goods sold, rent, utilities, and secretarial help only if he jumps through the hoops of section 505(a)(3)(h) and shows that those expenses are in the form of debts which are being repaid and will be paid off at some definite time. A self-employed individual who pays these expenses as they come due is not liable for the "repayment of debt” and is accordingly not entitled to a deduction under the majority’s view. Even if the expenses are paid sometime after they become due, and there is accordingly a "debt” for some period of time, there cannot be a deduction for continuing expenses because such expenses never terminate. That result cannot be correct and is not the way income is calculated in practice. Even in Gay, the self-employed realtor was allowed to deduct expenses such as rent, utilities, and secretarial help because those items were subtracted from the check given him by Coldwell Banker, and we did not look past that check to his total commissions, despite section 505(a)(3)’s admonition that we begin with "the total of all income from all sources,” and subtract only the listed deductions. 750 ILCS 5/505(a)(3) (West 1994). Perhaps some sense can be made of section 505(a)(3) by the explanation that the section addresses only net income and that additional deductions are allowed in determining gross income. As a matter of accounting, cost of goods sold is deducted in determining gross income. Section 505(a)(3) is not a comprehensive statement of what constitutes income, but is a statement of legislative intent to limit the deductions that may be made in calculating net income for purposes of calculating child support. I agree, however, that a circuit court is not required to deduct depreciation in determining net income for purposes of the child support guidelines. While tax law principles may be useful in determining what net income is available for child support, they are not controlling. Ivanyi v. Granoff, 171 Ill. App. 3d 411, 421-22 , 526 N.E.2d 189, 197 (1988) (refusing to consider items which defendant was required to report on his tax return but did not in fact receive). What is important is not what is shown on the tax return, but the individual’s current ability to pay child support. I disagree with the majority’s decision that Robert is not entitled to child support from Paula because Robert has more income than Paula does. A child is entitled to the support of both of his parents. In re Marriage of Duerr, 250 Ill. App. 3d 232, 238 , 621 N.E.2d 120, 125 (1993); In re Marriage of Maczko, 263 Ill. App. 3d 991, 994 , 636 N.E.2d 559, 562 (1992); see also 750 ILCS 5/505(a) (West 1994) ("the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support”). The argument that a payor of child support should receive some sort of reduction when the custodian has income has repeatedly been rejected. See Kern, 245 Ill. App. 3d at 579, 615 N.E.2d at 405; In re Marriage of Blaisdell, 142 Ill. App. 3d 1034, 1047 , 492 N.E.2d 622, 630 (1986). Assuming that Robert’s net income is $3,063, and that Paula’s is $1,086, and that the child receives support at the guidelines amount from both, the child would receive $829.80 of support per month. I do not see that as excessive. The circuit court attempted to divide the property equally between the parties. In doing so the circuit court awarded Paula the residence, the furniture, the automobile, the accounts, and an equalizing payment ($10,615), all of which totalled $98,453. Robert was also awarded $98,453, but $80,630 of his award came from the service station he operated. Robert was then given custody of the minor child, but no child support. There is a double counting problem here. Paula can sell all the property she was awarded and still have a monthly income of $1,086. Robert’s monthly income of $3,063 is dependent on his continued ownership of the service station. Robert cannot sell the service station and buy a residence, for example. Some portion of Robert’s $3,063 is not income from employment, but a return on capital. When the circuit court considered the full amount of the $3,063 in awarding maintenance, but awarded the service station to Robert as the major portion of Robert’s property division, it erroneously counted the same asset twice. See In re Marriage of Zells, 143 Ill. 2d 251, 256 , 572 N.E.2d 944, 946 (1991); Talty, 166 Ill. 2d at 236-40, 652 N.E.2d at 332-34. The court compounded the error when it required Robert to pay a portion of Paula’s attorney fees corresponding to his share of the parties’ total income (73.82%). (Why was Paula not required to pay 26.18% of Robert’s attorney fees?) This was not just a case of double counting, but of triple counting. I question whether Robert would have much greater income potential than Paula if he no longer had the service station. The majority justifies the award of attorney fees by citing Kennedy for the proposition that Paula is not required to divest herself of capital assets before seeking fees. That rule does not apply, however, if Robert would likewise be required to divest himself of capital assets in order to pay attorney fees. Kennedy, 214 Ill. App. 3d at 861, 573 N.E.2d at 1365 (spouse seeking fees must establish financial ability of other spouse to pay them). There is not a lot of money in this case. It seems clear that both parties will be required to invade their capital assets, and there is no justification for shifting Paula’s fees to Robert. I would reverse the circuit court’s order as it relates to child support, maintenance, property division, and attorney fees, and remand for reconsideration and the entry of an order in accord with the views expressed herein. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9725636. Public record. Not legal advice.