Appeal from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY and the Hon. NORMAN M. EIGER, Judges, presiding.
Affirmed in part, reversed and remanded with directions in part.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified February 25, 1970.
Defendant appeals from an order (1) denying his petition to vacate and modify the order of July 24, 1968, which ordered defendant to pay additional support for college education of the children, (2) finding him in arrears in the sum of $660 which he was ordered to pay in monthly installments, and (3) ordering him to pay $350 for attorneys' fees. On appeal defendant, pro se, contends that the modification of the judgment for divorce, increasing child support payments for college education, was unreasonable and burdensome and that the $350 award for attorneys' fees was unfair and unwarranted.
Defendant married plaintiff on June 16, 1943, and they cohabited together as husband and wife until April 24, 1965. During the marriage four children were born, Gregory, now twenty years old, Deborah, now nineteen years old, Douglas, now eighteen years old, and Janice, now seventeen years old. By agreement the divorce decree entered June 6, 1967, gave custody of the children to plaintiff. Defendant agreed to pay $500 per month alimony to plaintiff and $416.66 per month child support for the four children. The obligation of the defendant to pay child support was to abate proportionately as each child reached majority. The decree also provided that the former marital home (value estimated by defendant at $35,000 to $50,000 but subject to a mortgage of about $15,000) and furnishings be awarded to the plaintiff. The defendant further agreed to keep in full force and effect two insurance policies with face values of $10,000 and $27,000.
The defendant was also required to make yearly payments of $800 per year for five years to be applied toward the education of all of the children. *fn1 Under the decree the court specifically reserved for further consideration the question of liability of defendant for the payment of a college education for each child.
On April 5, 1968, plaintiff filed a petition which alleged that defendant did not designate her as primary beneficiary and the children as contingent successor beneficiaries under the $27,000 insurance policy, in violation of the divorce decree, and further requested that the court make provision for the college education of the children and provide attorneys' fees. In his answer defendant denied that he violated the divorce decree and denied that he was able to pay the costs of the college education for the children.
The court's order of July 24, 1968, on plaintiff's petition found that (1) Gregory Booth, age eighteen, minor son of the parties, was attending Hamlin University in St. Paul where he was a sophomore, (2) Deborah Booth, daughter of the parties, would attain the age of majority on September 8, 1968, upon which date the liability of the defendant to pay her support would cease but that she would be attending Northern Illinois University at DeKalb in September 1968, and (3) defendant's gross income for 1968 from all sources would be approximately $24,000. The court ordered defendant to pay $165 per month toward the costs and expenses of a college education for these children and that defendant produce documentation that he had fulfilled the original divorce decree by designating plaintiff as primary and the children as contingent successor beneficiaries under the insurance policies. The order was retroactive to July 15, 1968.
Defendant filed a motion to vacate the order of July 24, 1968, which alleged in part that his uncontradicted evidence showed that plaintiff and the children were receiving the benefit of 62% of his gross 1967 income and that the order to pay the additional sums was unjust and inequitable. Plaintiff answered that the court's determination was fair.
On October 8, 1968, plaintiff filed a petition for rule to show cause alleging that defendant failed to pay the additional $165 per month, and requesting that defendant be required to pay this amount and also to pay for attorneys' fees. During the hearing on plaintiff's petition her attorney stated that the defendant had given documentary evidence that the insurance policies were in force and that, prior to her April petition, the beneficiaries had been designated in compliance with the original divorce decree. Defendant also introduced as exhibits his income tax returns for 1965, 1966 and 1967. In 1965 defendant's total income was $22,041.80 (his salary was $18,140.16 and dividends $3,901.64) and his tax was $3,295.63. In 1966 his total income was $24,490 ($19,860 salary and $4,630 dividends) and his tax was $3,830.50. In 1967 his total income was $25,096.87 ($20,691.37 salary and $4,405.50 dividends) and his tax was $3,042.45. Defendant also testified that his total 1968 income was $25,215.12. *fn2
The court denied defendant's petition to vacate the order of July 24, 1968, and found defendant $660 in arrears in payment of Deborah's and Gregory's college education ($165 for September, October, November and December) which was to be paid at the rate of $22.49 per month and further ordered defendant to pay $350 attorneys' fees. It is from these orders that defendant appeals.
Defendant contends that the modification of the judgment for divorce increasing his payments for his children's college education was unreasonable and burdensome. He argues that even if the needs of the children have increased, his ability to pay has not. We are presented with the problem of how to apportion the income of a divorced husband to cover alimony payments, support for three minor children, a college education for two of the children, and to provide adequate support for his second wife and himself.
On plaintiff's rule to show cause the court found that defendant earned "somewhere around twenty-thousand dollars a year from your employment, plus five thousand dollars a year from your dividends, which made the total of twenty-five thousand dollars per year. From that is deducted your withholding tax, your Social Security, and of course, as to them taking out hospitalization insurance and other charges from there." The court then estimated defendant's net income at $20,000 per year.
The record shows that the figure of $20,000 net income is probably an average figure for the years 1965-1968. The dividend payments on the stock in his employer's corporation have fluctuated from $4,680 in 1966 to $1,312.50 in 1969.
At the time of the hearing (January 14, 1969) defendant's payments per year were $6,000 for alimony, $3,750 for support of three minor children (Deborah became emancipated on September 8, 1968), and insurance payments of $515. These payments plus the $800 hereinabove mentioned amounted to $11,065 per year. When we add $165 per month ($1980 for the year) allowed for college education and the $22.49 per month on the ...