Opinion
4-20-0561
09-30-2021
In re MARRIAGE OF MICHAEL BICIOCCHI, Petitioner-Appellant, and LISA BICIOCCHI n/k/a Lisa Baugh, Respondent-Appellee.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Macoupin County No. 12D38 Honorable Kenneth R. Deihl, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
HARRIS, JUSTICE
¶ 1 Held: The trial court erred by ordering petitioner to pay retroactive child support for time periods that predated respondent's modification request seeking such an award; however, petitioner failed to establish the court erred by setting the amount of retroactive support that it properly awarded or by ordering him to pay past medical expenses of the parties' children.
¶ 2 Petitioner, Michael Biciocchi, appeals the trial court's order requiring him to pay retroactive child support and reimburse respondent, Lisa Biciocchi n/k/a Baugh, for medical expenses of the parties' children. On appeal, he argues the court erred by (1) ordering him to pay retroactive child support and medical expenses for time periods that predate respondent's requests for such awards and (2) failing to enter either "a zero dollar child support order" or a $40 minimum child support order for the time periods that he was incarcerated. We modify the court's judgment by reducing its award of retroactive child support and otherwise affirm as modified.
¶ 3 I. BACKGROUND
¶ 4 The parties were married in September 2000, and had three children, their eldest born in June 2002 and twins born in April 2004. In March 2012, the underlying dissolution proceedings were initiated by petitioner. From August to December 2013, the trial court entered orders in the case that dissolved the parties' marriage; awarded petitioner custody of the parties' children with "[l]iberal visitation" to respondent; ordered respondent to pay petitioner "statutory child support of 32% of her net income," or $1139.73 per month; and ordered petitioner to carry health insurance on the parties' children "[a]s long as [p]etitioner has health insurance available through his work on the children at no cost." The court's orders did not contain any provision concerning the allocation of uncovered medical expenses.
¶ 5 In January 2014, respondent filed a "Motion for Custody," alleging that petitioner had been sentenced to 90 days in jail and 30 months' probation in connection with felony and misdemeanor charges. She asked the court to grant her custody of the parties' children and terminate her child support obligation. The same month, the trial court denied respondent's motion; however, it entered an order stating the children would reside with respondent during petitioner's incarceration and be returned to petitioner's care upon his release from jail.
¶ 6 In April 2015, respondent filed a pro se motion for an "emergency change of custody," alleging the parties' children had been subjected to petitioner's alcohol and drug abuse and domestic violence between petitioner and his wife. On May 12, 2015, the court entered an order that granted respondent leave to file an amended petition to modify custody and ordered the parties to temporarily "rotate custody on a week[-]to[-]week basis." The following day, May 13, 2015, respondent filed a motion to suspend her child support obligation on the basis that the parties had begun exercising equal parenting time with their children.
¶ 7 In August 2015, the trial court conducted a hearing on respondent's motion to suspend child support and entered an "Agreed Court Order." The record reflects the court found the parties' children were in respondent's physical custody "under an extended emergency order of protection" and it ordered her child support obligation "temporarily abated pending further order." The court also reserved the issue of "retroactivity [of] arrears" owed by respondent to petitioner.
¶ 8 On November 6, 2015, respondent filed a "Motion For Modification Of Child Custody." She alleged the children were at an "immediate and significant risk of emotional, mental, or possibly physical harm" while in petitioner's care and that it was in their best interests that she be awarded custody. She asked the trial court to "enter an order transferring custody of the minor children to her primary care, custody, and control" and "set child support pursuant to statutory minimum guidelines[.]" Although the record does not reflect the trial court expressly ruled on respondent's request for a modification of custody, it does indicate that the children remained in respondent's care and that the parties' continued to litigate the issue of child support.
¶ 9 Specifically, in March 2016, respondent filed a motion for an injunction, asserting she had "primary custody of the parties['] minor children in excess of six *** months via an [o]rder of [protection." Additionally, she alleged petitioner was the owner of substantial assets, which he had placed for sale. Respondent requested that any proceeds from the sale of petitioner's assets be placed in escrow or held in a trust account until a hearing could be held in the matter regarding child support. In May 2016, petitioner surrendered possession of the marital residence to respondent, and in November 2016, the trial court ordered petitioner to produce his most recent paystubs, noting he had failed to provide financial information as previously ordered. Finally, on December 8, 2016, the court entered a uniform support order, stating "[t]he parties agree that [p]etitioner shall pay [r]espondent child support in the amount of $1, 662.51 per month starting on [December 15, ] 2016."
¶ 10 On April 27, 2018, respondent filed a "Motion To Determine Arrears And Modify Allocation of Unreimbursed Medical Expenses." She noted that in 2015, she filed motions to abate her child support obligation and determine child support owed to her by petitioner. Respondent maintained she was "entitled to [o]rders retroactive to" those filing dates and noted the trial court's December 2016 child support order "did not address unpaid support from November 3, 2015[, ] through December 8, 2016." She also alleged that she had the children in her care from May to October 2015, but continued to pay child support to petitioner. Respondent sought "retroactive child support based on dates [her] motions were filed" as well as "the equal division of non-reimbursed medical and dental expenses incurred for the benefit of the" minor children.
¶ 11 On May 17, 2018, petitioner filed a motion to dismiss respondent's motion. He argued that respondent's November 2015 motion to modify custody sat "idle" for over 90 days and should have been stricken under local court rules and that retroactive child support should have been addressed at the time of the trial court's December 2016 child support order. Additionally, petitioner asserted that he was incarcerated during the period of time respondent alleged he owed her child support and would have been unable to pay any support. The same day, the trial court conduced a hearing in the matter. It ordered petitioner's motion "held in abeyance" while the parties exchanged discovery. In May 2019, the court made a docket entry, stating a conference call with the parties had been conducted regarding the issue of retroactive support and that the parties would file briefs addressing the matter.
¶ 12 On June 10, 2019, respondent filed her position statement in support of her April 2018 motion, stating she sought from petitioner a total of $58, 698.93 in retroactive child support and reimbursements for the children's medical expenses. Respondent maintained she had the parties' three children in her care from April 2015 forward as the result of an order of protection, but she continued to pay child support to petitioner through October 2015 at a rate of $1139.73. She noted the trial court entered an order terminating her child support obligation "for November 2015 and thereafter." The same month, she filed a motion to modify custody that included a request for child support, and in December 2016, the court entered an order requiring petitioner to pay child support to her. In her filing, respondent acknowledged that petitioner was incarcerated from December 2015 through May 27, 2016.
¶ 13 Additionally, respondent identified the specific amounts she was requesting as: (1) $11, 253.91, representing child support from petitioner of $1662.51 a month "less $383.66" for the months of April 2015 to October 2015, while the children were in her care; (2) $7978.11, representing a reimbursement for the child support she paid to petitioner while the children were in her care from April 2015 to October 2015; (3) $21, 612.63, representing child support from November 2015, when she filed her motion to modify custody, to December 2016, when the trial court entered its child support order; and (4) $17, 854.28, representing one-half of the uncovered medical expenses for the parties' children. To her filing, respondent attached a list of the children's alleged medical expenses, which she asserted were incurred from April 2015 to June 2019.
¶ 14 On June 28, 2019, petitioner filed his memorandum in opposition to respondent's motion. Initially, he maintained that Illinois law, specifically section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/510(a) (West 2018)), prevented a trial court from ordering retroactive child support prior to the date that a motion to modify addressing support was filed. He noted that in the present case, respondent did not ask the court to award her child support until the filing of her November 6, 2015, motion to modify custody. Thus, he argued the court lacked any authority to order him to pay retroactive child support prior to that date.
¶ 15 Additionally, petitioner argued that any award of child support before December 8, 2016-the date of the trial court's uniform support order-was barred by the doctrine of res judicata. He asserted res judicata "prohibits the splitting of claims" and noted the court's December 2016 order did not reserve the issue of retroactive child support. Alternatively, petitioner maintained the court could only have entered a "zero-dollar order" regarding any child support due prior to December 2016 because of his incarceration and subsequent "house arrest." Specifically, petitioner alleged he was continuously incarcerated in either the Macoupin County jail or the Graham Correctional Center from December 2015 to May 27, 2016. Further, from the date of his release until July 28, 2016, he was "on house arrest." According to petitioner, during those periods of time he was unemployed with no income and he did not obtain employment or begin earning an income until August 2016.
¶ 16 Finally, regarding the issue of medical expenses, petitioner asserted he provided health insurance coverage for the parties' children at a cost to himself of $692.90 per month. He stated he would agree to evenly share the cost of medical expenses for the children, including insurance premiums, from July 2019 forward upon certain conditions, including his ability to participate in non-emergency health-care decisions and approve treatment. However, petitioner argued that respondent could not "seek reimbursement for any amounts paid prior to" the filing of her April 2018 "Motion To Determine Arrears And Modify Allocation of Unreimbursed Medical Expenses," as that motion represented the first time she requested reimbursement or the equal sharing of medical expenses. Further, he noted that although respondent reportedly sought a "modification" of the allocation of unreimbursed medical expenses, there had been no prior order addressing such. Petitioner argued that to the extent respondent sought an order apportioning expenses, she had not met her burden of establishing the "reasonableness, necessity, consent of the other parent, application of insurance proceeds, dates, amounts[, ] etc., of those expenses." To support the factual assertions in his memorandum, petitioner attached his own affidavit.
¶ 17 In January 2020, the trial court made a docket entry stating respondent's motion to determine arrears and modify the allocation of unreimbursed medical expense remained under advisement. However, it granted her leave to submit copies of medical bills and proof of any payments. The court also granted petitioner the opportunity to respond to any filing by respondent.
¶ 18 In February 2020, respondent submitted copies of various medical bills from 2014 to 2019, which she maintained totaled $24, 382.38. In March 2020, petitioner filed a response. In objecting to respondent's request for payment, he relied on his previous memorandum. Additionally, he maintained that after reviewing the documents submitted by respondent, he calculated medical expenses totaling $18, 627.22, and medical expenses incurred after April 27, 2018, totaling $4390.79. Petitioner argued that, at most, respondent was entitled to $2195.39, representing "half of the medical expenses incurred for the minor children since April 27, 2018."
¶ 19 On April 15, 2020, the trial court entered a written order that granted respondent her requested relief, a total of $58, 698.93 from petitioner in retroactive child support, reimbursed child support payments, and medical expenses. Specifically, the court awarded respondent $40, 844.65 in "retroactive child support *** as reflected in [r]espondent's position statement." In so holding, it found petitioner failed to produce "any evidence or affidavit as to his income." The court awarded respondent $17, 854.28 as a reimbursement for the children's medical expenses. It noted it had been unable to find an order or judgment addressing the allocation of the children's medical expenses that were not covered by insurance. However, the court found respondent's request for the equal division of expenses was "a customary provision in the support of children and *** reasonable." It also ordered the parties to "share equally all medical costs not covered by health insurance" both "now and in the future."
¶ 20 In May 2020, petitioner filed a motion to reconsider the trial court's order. Following a hearing in October 2020, the court denied petitioner's motion.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 A. Sufficiency of Petitioner's Appellant's Brief
¶ 24 On appeal, respondent initially argues petitioner's appellant's brief contains deficiencies that warrant either a finding that he "waived" the issues he raised for review or striking his brief in whole or in part. Specifically, she contends petitioner failed to make "proper arguments in support of [his] position," asserting his brief "does not contain sufficient, clearly defined arguments, nor adequate citation to pertinent authority." Respondent also contends that petitioner improperly included argument and commentary within the "Statement of Facts" section of his brief.
¶ 25 Illinois Supreme Court Rule 341(eff. Oct. 1, 2020) sets forth requirements for the form and content of appellate court briefs. It requires that an appellant's brief include a "Statement of Facts, which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). An appellant's brief must also contain an "Argument" section that sets forth "the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). The rule provides that "[p]oints not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Id.; see also Hollenbeck v. City of Tuscola, 2017 IL App (4th) 160266, ¶ 27, 72 N.E.3d 880 ("Bare contentions in the absence of argument or citation of authority do not merit consideration on appeal and are deemed waived." (Internal quotation marks omitted.)). "The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike [a] brief for failing to comply with Supreme Court Rule 341." Crull v. Sriratana, 388 Ill.App.3d 1036, 1045, 904 N.E.2d 1183, 1190 (2009).
¶ 26 Initially, although we do not find petitioner's "Statement of Facts" is unduly argumentative, we agree that it includes improper commentary and argument. It also contains a lengthy description of facts not germane to the underlying issues. However, rather than strike portions of petitioner's statement of facts, we simply ignore any commentary and argument that violates Rule 341.
¶ 27 Regarding the "Argument" section of petitioner's brief, we note he sets forth challenges to the trial court's underlying awards of retroactive child support and medical expenses. His "Argument" includes specific contentions of error, legal authority pertaining to the issues raised, and citations to the appellate record. We find petitioner's brief sufficiently complies with Rule 341 and striking his brief is not warranted. However, we address only those arguments supported by legal authority and a reasoned analysis as identified below.
¶ 28 B. Retroactive Child Support
¶ 29 On appeal, petitioner initially argues the trial court erred by ordering him to pay retroactive child support to respondent for a time period that predated her initial request for such an award. He suggests that, under the Dissolution Act, the court only had authority to award retroactive child support dating back to November 6, 2015, i.e., the date respondent filed her motion to modify custody and first requested child support from him.
¶ 30 Generally," [c]hild support is a matter within the sound discretion of the trial court, and this court will not disturb the trial court's determination absent an abuse of discretion." (Internal quotation marks omitted.) Vance v. Joyner, 2019 IL App (4th) 190136, ¶ 66, 146 N.E.3d 285; see also In re Marriage of Heil, 233 Ill.App.3d 888, 895, 599 N.E.2d 168, 173 (1992). ("The question of whether modification should be retroactive is within the sound discretion of the trial court."). However, to the extent an appeal involves issues of statutory interpretation, a question of law is presented that is subject to de novo review. In re Marriage of Petersen, 2011 IL 110984, ¶ 9, 955 N.E.2d 1131. "The primary objective in construing a statute is to give effect to the legislature's intent, presuming the legislature did not intend to create absurd, inconvenient, or unjust results." Id. ¶ 15. "The best indication of legislative intent is the statutory language, given its plain and ordinary meaning." Id.
¶ 31 Section 510 of the Dissolution Act sets forth requirements for seeking modification of a support order in a dissolution case. 750 ILCS 5/510 (West 2018). Relevant to this appeal, it provides that, except as otherwise provided in certain specified provisions of the Dissolution Act, "the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." Id. § 510(a). Thus, "[u]nder the plain language of the statute, a retroactive modification is limited to only those installments that date back to the filing date of the petition for modification." Petersen, 2011 IL 110984, ¶ 18. "This insures that the [nonmoving party] is put on notice prior to any change being made with respect to the original child support and expense obligations." Id.
¶ 32 Here, following the dissolution of the parties' marriage, respondent was initially ordered to pay child support to petitioner. In May 2015, she filed a motion to suspend her child support obligation alleging the parties had begun sharing equal parenting time with their children. In August 2015, following a hearing on respondent's motion to suspend child support, her support obligation was temporarily abated pending further court order as the children were in her physical custody "under an extended emergency order of protection." On November 6, 2015, respondent filed a motion to modify child custody, which included her first and only request that the trial court modify a previous support order by imposing a child support obligation on petitioner. Accordingly, under the plain language of section 510(a) of the Dissolution Act, the court could only order petitioner to pay respondent child support retroactive to November 2015, when petitioner would have received notice of respondent's request that he pay her child support. The court's April 2020 order in this case awarded respondent retroactive child support beyond November 2015 in the amount of $11, 253.91, for the months of April to October 2015. We agree with petitioner that this was in error.
¶ 33 We note that on appeal, respondent first contends an award of retroactive child support from April to October 2015 was supported by a request she made for child support in her counter petition for dissolution of marriage. She asserts that request "reserved any claims for child support throughout the life of the case." Noticeably, however, respondent has failed to cite any legal authority to support her contention and our research reveals none that would support her assertion. Further, holding as respondent suggests-that retroactive support may be awarded at any time during the life of a case based upon a request for support when the case was initiated and before any orders addressing support are entered-would render the pertinent language of section 510(a) meaningless and unnecessary. See Rushton v. Department of Corrections, 2019 IL 124552, ¶ 14, 160 N.E.3d 929 (providing that when construing a statute" [n]o part *** should be rendered meaningless or superfluous").
¶ 34 Respondent also argues that retroactive child support from April to October 2015 was supported by her May 2015 motion to suspend her own child support obligation. She contends that motion gave sufficient notice to petitioner "that she was seeking modification of the previously entered child support order." We disagree.
¶ 35 Clearly, respondent's May 2015 motion put petitioner on notice that she was seeking to modify a previous support order by ending her own child support obligation. Notably, her request was based on the fact that the parties had begun sharing equal parenting time with their children and, ultimately, respondent obtained her requested relief. However, the May 2015 motion could not have put petitioner on notice of respondent's intention to seek child support from him after the parties' circumstances had further changed and respondent had the children solely in her care. Again, respondent has failed to cite any legal authority to support her position that child support may be ordered retroactive to any previous request for modification, no matter the specific relief being sought, and we decline to so hold.
¶ 36 Finally, we note petitioner's arguments on appeal indicate his acknowledgment that the trial court had authority to order retroactive support dating back to November 2015. However, in generally challenging the court's retroactive child support and medical expenses award, he argues the court's April 2020 order "represented an improper de facto reinterpretation of the previous agreed orders." He cites legal authority for the proposition that agreed orders are considered to be a contract between the parties, governed by contract law, and interpreted to effectuate the intent of the parties. To the extent petitioner's argument represents a challenge to the court's award of retroactive child support between November 2015 and December 2016, or any other portion of the court's April 2020 order, we find petitioner has forfeited his argument by failing to present any reasoned analysis of the issue. Significantly, he does not identify the specific portion of the April 2020 order that he challenges through this argument, identify any specific provision of the unnamed agreed orders to which he refers, or set forth anything more than a conclusory statement that the court acted impermissibly. Accordingly, we decline to address the merits of this specific argument.
¶ 37 C. Reimbursement for Child Support Payments Respondent Paid to Petitioner
¶ 38 The trial court's April 2020 order addressed retroactive child support and medical expenses and awarded respondent $7978.11, representing a reimbursement for child support payments she made to petitioner from April to October 2015. This reimbursement essentially qualifies as a retroactive modification of the trial court's previous support order, though not a retroactive award of child support. Respondent addresses and defends the reimbursement in her appellee's brief, but petitioner does not appear to challenge either the court's decision to award the reimbursement or the amount it awarded. Accordingly, the issue has been forfeited and we will not disturb that portion of the court's order on review. We note, however, that, as set forth above, respondent's May 2015 motion to suspend child support would have provided petitioner with sufficient notice that respondent sought to end her own child support obligation.
¶ 39 D. Amount of Child Support During Petitioner's Incarceration
¶ 40 On appeal, petitioner next argues that in ordering him to pay child support retroactive to November 2015, the court abused its discretion by failing to provide that, during his periods of incarceration, he had only a "zero dollar" child support obligation. Alternatively, he argues the court should have entered only "a minimum child support obligation of $40 per month, per child" for his periods of incarceration.
¶ 41 Section 505 of the Dissolution Act (750 ILCS 5/505 (West 2018)) governs a trial court's award of child support. The Dissolution Act sets forth a rebuttable presumption that a minimum child support obligation of $40 per month, per child, should be entered for any obligor whose actual or imputed gross income is "at or less than 75% of" recent poverty guidelines for a family of one person. Id. § 505(a)(3.3a). Further, "[f]or parents with no gross income, *** who cannot work due to a medically proven disability, incarceration, or institutionalization, there is a rebuttable presumption that the $40 per month minimum support order is inapplicable and a zero dollar order shall be entered." Id. § 505(a)(3.3b).
¶ 42 Here, there is no dispute that petitioner was incarcerated from December 2015 to May 2016. However, we disagree that he was necessarily entitled to "a zero dollar order" under the circumstances presented or that he has shown an abuse of discretion by the trial court in refusing to enter either "a zero dollar" or "$40 per month" minimum support order.
¶ 43 The rebuttable presumptions in sections 505(a) (3.3a) and (a) (3.3b) apply to parents who have "no gross income" or gross income below a certain amount. Here, the trial court's order indicates a finding that it was unable to determine petitioner's gross income during the relevant time period. Specifically, in reaching its decision, the court found" [p]etitioner ha[d] not produced any evidence or affidavit as to his income." Additionally, its written order indicates reliance on a provision of the Dissolution Act that 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." Id. § 505(a)(5). (We note that in its April 2020 order, the court actually cited to section 503(a)(5) of the Dissolution Act (id. § 503(a)(5)), concerning the disposition of property and debts; however, the court's comments and the subject matter indicate its intention, instead, was to rely on section 505(a)(5)).
¶ 44 On appeal, respondent argues the trial court was not required to accept petitioner's assertion that he was without income during the periods of his incarceration in the absence of a financial affidavit or other proof to support his claims, i.e., tax returns or bank statements. We agree. Petitioner does not point to any financial affidavit or evidence he submitted in the case and relies solely on bald assertions he made in the affidavit he submitted in opposition to respondent's request for child support. Under these circumstances, we find he has failed to show he was entitled to the presumptions contained in sections 505(a) (3.3a) and (a) (3.3b) or establish an abuse of discretion by the trial court. See In re Marriage of Hari, 345 Ill.App.3d 1116, 1120, 804 N.E.2d 144, 147 (2004) ("Incarceration of the noncustodial parent does not automatically relieve that parent of the obligation to support his child.").
¶ 45 E. Medical Expenses
¶ 46 On appeal, petitioner further argues the trial court erred by ordering him to pay medical expenses for time periods that predated respondent's motion requesting such an award. Specifically, he argues that pursuant to section 510(a) of the Dissolution Act, the court only had authority to enter an award of medical expenses dating back to April 27, 2018, i.e., the date respondent first moved for an "allocation of unreimbursed medical expenses."
¶ 47 As discussed above, section 510(a) limits the retroactivity of support modifications. 750 ILCS 5/510(a) (West 2018). However, that section also contains qualifying language, stating as follows: "Except as otherwise provided in *** subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." (Emphasis added.) Id. Section 505.2 of the Dissolution Act contains the requirement that a support order include provisions for a child's health care coverage. Id. § 505.2. Significantly, section 505.2(b)(3) states as follows:
"Nothing in this Section shall be construed to limit the authority of the court to establish or modify a support order to provide for payment of expenses, including deductibles, copayments and any other health expenses, which are in addition to expenses covered by an insurance plan of which a child is ordered to be named a beneficiary pursuant to this Section." Id. § 505.2(b)(3).
¶ 48 Thus, under its own terms, section 510(a) does not appear to limit a court's authority to modify a prior order or judgment with respect to uncovered medical expenses. We note petitioner does not address the qualifying language in section 510(a) and presents no argument regarding the provisions of section 505.2. Accordingly, we find he has failed to establish error by the trial court.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we find the trial court erred in ordering petitioner to pay retroactive child support of $11, 253.91 for the months of April to October 2015. We modify the trial court's April 2020 order by reducing its award to respondent by that amount and otherwise affirm the court's judgment.
¶ 51 Affirmed as modified.