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Lewis v. Lewis

MARCH 12, 1970.

MARY KAY LEWIS, PLAINTIFF-APPELLANT,

v.

RALPH ELWOOD LEWIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Peoria County, Tenth Judicial Circuit; the Hon. SAMUEL GLENN HARROD, III, Judge, presiding. Affirmed in part, reversed in part, and remanded.

RYAN, J.

This is an appeal from a decision of the Circuit Court of Peoria County modifying the child visitation and support provisions of a Decree of Divorce and ruling on certain Orders to Show Cause previously entered against both parties.

Plaintiff-Appellant, Mary Kay Lewis, and Defendant-Appellee, Ralph Elwood Lewis, were married on May 23, 1959. One child, a son, Ralph Ernest Lewis, was born to the parties on June 26, 1960. Plaintiff filed suit for divorce from defendant in the Circuit Court of Peoria County on February 7, 1966, on the grounds of extreme and repeated cruelty. An entry of appearance signed by the defendant was filed along with the complaint. On the same day, the Court entered a decree granting plaintiff a divorce on the grounds that defendant "has been guilty of extreme and repeated cruelty substantially as set forth in the Complaint." The decree also ordered the defendant to convey certain real estate to the plaintiff and awarded the plaintiff all of the household furniture and furnishings. It awarded the custody of the child to the plaintiff subject to the right of defendant "to visit said child at reasonable times and places." The defendant was ordered to pay $30 per week for child support and to pay all medical expenses of the minor, and to maintain and pay the premiums on a certain $10,000 life insurance policy naming the child as irrevocable beneficiary thereof. The defendant was further ordered to pay all the just debts incurred during the marriage and to pay the plaintiff's attorneys $250.

Within thirty days after the entry of the Decree of Divorce, the defendant received notice of the divorce, read a copy of the decree and consulted a lawyer for advice. A meeting subsequently took place between the parties, and they conferred with their attorneys. Following this, the defendant deeded the plaintiff his interest in the real estate as ordered in the decree and the plaintiff simultaneously reconveyed the same interest back to him, thus satisfying the direction of the decree yet nullifying its effect. The plaintiff testified that this action followed the statements of the defendant and the defendant's lawyer that they would try to throw the whole divorce out of Court if she didn't accept this arrangement. The defendant testified that an agreement was made between the plaintiff and defendant because he wouldn't give up his interest in the home while he was still on the mortgage and because he objected to paying the bills incurred just prior to the divorce and her attorneys' fees. The defendant decided not to file any petition attacking the decree and did not do so.

On March 15, 1968, which was more than two years following the entry of the Decree of Divorce, the defendant filed a petition to modify the decree which asked that the child support payments be reduced from $30 to $15 per week due to his financial reverses; that the Court fix a time and place for child visitation due to difficulties being encountered in this regard; and that an insurance trust arrangement be set up to replace the direction regarding life insurance in the original decree.

The plaintiff filed a verified reply setting forth that the defendant was in default in the payment of support monies in the sum of $605 as of March 29, 1968; that the defendant had not paid the attorneys' fees nor certain family debts as ordered in the decree; denied that the defendant sustained financial reverses; set forth that the defendant had enjoyed frequent visitation with the minor; and prayed for an affirmative order directing the defendant to comply with the decree.

Simultaneously with the filing of the verified reply, the plaintiff petitioned for a Rule to Show Cause why the defendant should not be held in contempt of Court for his neglect and refusal to comply with the decree. An Order to Show Cause was entered on March 29, 1968. Certain other pleadings not pertinent hereto were also filed subsequent to the last mentioned date.

By agreement of the parties, a consolidated hearing on the several pleadings was held on August 28, 1968. Following this hearing, the Court entered an order which found that the parties had an agreement "based upon adequate consideration" that the plaintiff would accept a reduction in child support from $30 to $20 per week "effective on or about July 3, 1967" and that the plaintiff would assume certain indebtedness of the parties; that from July 3, 1967, to August 28, 1968, the difference in the amount of support reduced from $30 to $20 is $780; that the defendant is not in contempt of Court; that the plaintiff is estopped from collecting back child support in the amount of $780, collecting the bills referred to and from collecting attorney fees in the amount of $250; that there has been a material change of circumstances in the financial standing of the defendant and that there has been no evidence of financial hardship on the part of the plaintiff. The Court then ordered that the decree of January 7, 1966 (the date here being incorrect) be modified in the following respects: Child support was reduced from $30 to $20 per week. Visitation rights were explicitly spelled out. The defendant was directed to execute an insurance trust as requested and ordered that the beneficiary could not be changed until the child reached twenty-one years and that "to the extent that any part of the trust fund is not used for the purposes specified, after said child reaches the age of twenty-one, said defendant may terminate the trust and dispose of what is left as he pleases."

The defendant testified that subsequent to the Decree of Divorce he and his former wife entered into agreement concerning reduction of child support, payment of attorneys' fees and payment of the family bills as ordered in the original decrees, all of which will be hereinafter discussed. The defendant deeded his interest in the marital home to the plaintiff in 1967. Defendant claims this last conveyance was done in accordance with their aforesaid agreements. Plaintiff claims it was done to enable defendant to finance another house he was purchasing. This was the second conveyance from the defendant to the plaintiff. The first conveyance was made shortly after the original decree and was nullified by the simultaneous conveyance back to the defendant as previously related. He stated that at the time the original Decree of Divorce was entered, he was earning in the neighborhood of $11,300 or $11,100, but that in 1967 it went down to about $9,000 because he had changed jobs. At the time of the hearing, he stated that he was earning $171.16 weekly which, after deductions, left him $130 net. He said that his weekly expenses amounted to $153.56, figuring in the $30 weekly support payments. He did some outside work photographing weddings but this provided only slight income and he got very little overtime work at his regular job. Plaintiff, on the other hand, claims that defendant is now making more than he was before. Defendant testified to difficulties and problems involving child visitation. He stated that his efforts at visitation had been frustrated. He related an incident when he wanted to take the child fishing and the plaintiff refused to let him take fishing poles from the garage, argued with him and called the police.

Plaintiff is employed by an attorney. Plaintiff denied any agreement with the defendant. She testified to the defendant's irregular and insufficient record of child support payments and his delinquencies in that respect. There is no question but that the support payments have not been made in compliance with the original decree and that a delinquency exists. With regard to the fishing pole incident, plaintiff said she was afraid to let the child go because the defendant had previously told her he kept a gun in his car.

The child in this case is in poor health and has had several mouth and throat operations. He may require further surgery.

Plaintiff-appellant raises several issues on appeal: First, was it error to reduce the child support payments from $30 to $20 per week? Second, was it error to modify the visitation provisions of the original decree? Third, was the trial court justified in divesting plaintiff of (a) her right to past due child support payments, (b) attorneys' fees, and (c) payment of family debts all as provided in the decree by declaring an equitable estoppel to exist by virtue of an extra-judicial agreement between the parties? Fourth, did the court err in finding the defendant not to be in contempt of court? Fifth, was it error to direct the implementation of an insurance trust in lieu of the provisions of the original decree as to life insurance.

The issue on a petition for modification of child support payments is whether there has been a material change of circumstances of the parties since the entry of the decree. Changed circumstances which permit modification of child support payment provisions relate to the needs of the minor child and the financial circumstances of the parties. The findings and order of the trial court on matters of this nature will not be reversed unless contrary to the manifest weight of the evidence. Kelleher v. Kelleher, 67 Ill. App.2d 410, 214 N.E.2d 139 (1966).

We have previously reviewed the evidence in this case, which need not be restated here. The trial court, which conducted a long hearing, had ample justification to conclude from the evidence that there was a change in circumstances such as would justify a modification of the divorce decree reducing the weekly child support payments. Numerous factors must be considered by the judge. The demeanor of the witness, his or her apparent honesty or lack of it and candor and forthrightness, are but a few of the elements that cannot be transcribed into a record on appeal. These intangibles are of great importance in assisting the trial judge in reaching a decision when the evidence is conflicting. It is the trial court that observes and hears the witnesses and analyzes the testimony. It is not for a court of appeal to substitute its findings for those of the trial court unless such findings are clearly and palpably erroneous and against the manifest weight of the evidence. Swan v. Swan, 331 Ill. App. 295, 73 N.E.2d 153 (1947); Horn v. Horn, 5 Ill. App.2d 346, 125 N.E.2d 539 (1955); Gillespie v. Gillespie, 70 Ill. App.2d 38, 216 N.E.2d 462 (1966). Accordingly, finding ample evidence in the record to sustain the findings of the trial judge, we are not disposed to reverse those findings. In this case, the appellate court is being asked to overrule the decision of a trial court that the weekly child support payment should be $20 instead of $30 as sought by appellant. The sum of $20 per ...


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