APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. HUNTER, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant, William Needler, appeals from a judgment of the Circuit Court of Cook County ordering him to pay to the plaintiff, Dolores Needler, a sum of $10,552.00 in arrearages for lump sum alimony payments, unusual hospitalization expenses and child support allegedly owed pursuant to a divorce decree, $1,500.00 in attorney fees in defense of this appeal and denying his petition for a modification of the child support payments.
The parties were married in April of 1952 and as a result of that marriage four children were born, John, 15, Dianne, who died in 1961 at the age of 7, and twin boys, David and Lowell who died at the ages of 8 and 7 respectively. In 1963, prior to their divorce, the parties knew that David and Lowell were afflicted with an ailment described as genetic degenerative brain disease as a result of which the children required constant medical care and attention and would require that attention for the remainder of their lives. Plaintiff was granted a divorce on July 24, 1963, and was awarded custody of the older son, John, and of the twins, subject to reasonable visitation privileges. Pursuant to a property settlement agreement entered into between the parties and incorporated into the decree, defendant was required, in addition to several other provisions, to pay a lump sum of $7,000.00 in $1,250.00 semi-annual installments, $200.00 per month periodic alimony, $300.00 per month for the support of John, and $500.00 per month for the support of the twins, David and Lowell. The agreement provided that since the physical conditions of the twins were such that the amount of money necessary for their joint support would not be materially lessened in the event one of them died before the other, the amount of money necessary for their support should continue in the same amount during the lifetime of the survivor. The agreement further provided that "the husband further agrees to pay any and all unusual expenses for medical care, drugs or hospitalization for the minor children of the parties, it being agreed at this time that any unusual medical or hospital expenses shall be a sum in excess of $200.00 during any calendar month."
In October, 1963, approximately four months after entry of the decree, plaintiff placed the twins in the Illinois State Pediatric Institute at Chicago. The institute made a charge of $132.00 per child per month which provided full and complete care and maintenance for the children. When the children went to the institute, the plaintiff's expenses for food, drugs and doctor bills for them ceased. At that time she removed the twins' hospital beds from her home and six months later discharged a Mrs. Kukn whom she had paid to help care for the twins. The diagnosis and prognosis for the twins was the same when they entered the hospital as when the property settlement agreement was made. They were not being treated for any new or different illness, nor were they expected to recover and return home. David died in November, 1966 after being in the institute 36 months, and Lowell died in September, 1967 after being at the institute 45 months.
On February 27, 1967, defendant filed a petition to modify the provision for the child support alleging that since the child David was then deceased and the institute charged $132.00 per month for the care and maintenance of the surviving child, Lowell, the support provision should be modified accordingly, or the defendant be ordered to pay directly to the institute all charges for the maintenance of the surviving child.
Plaintiff filed an answer alleging that the cost of the children's care at the institute has no reasonable relationship as a limiting factor to the total cost of their care, support and maintenance, and further answered that the parties had agreed that the cost of support would not be decreased in the event of the death of one child, and that defendant had agreed to pay all unusual expenses for medical care, drugs or hospitalization whenever such medical or hospitalization expenses exceeded $200.00.
Plaintiff also filed a cross petition alleging that defendant owed an arrearage of $5,250.00 due on the $7,000.00 lump sum alimony provision; that there had been a material change in circumstances warranting an increase in the periodic payments of alimony and child support for all children; that defendant is now capable of paying a larger sum and that she be paid reasonable attorney fees in defense of defendant's petition and preparation of her cross petition.
Defendant's reply to plaintiff's answer and cross petition denied that there was an arrearage in an amount of $5,250.00 or in any amount; denied that there was a material change in circumstances warranting an increase in the alimony and child support provisions, and further alleged that the property settlement agreement contemplated that the twins would reside with their mother at home which is the reason that the cost of maintenance for the children was accumulated in a single sum, and that by placing the children in the Illinois Institute of Pediatrics plaintiff has no expense whatsoever for the care and maintenance of the surviving child other than the $132.00 per month payment.
Pursuant to a motion of defendant to strike plaintiff's answer and cross petition for failure to comply with discovery rules, the trial judge ordered that defendant continue to pay $200.00 per month alimony and $300.00 per month for support of John as set forth in the decree, but in lieu of the $500.00 per month previously required to be paid for the support of the twins, that defendant pay the sum of $132.00 per month to the Illinois Institute of Pediatrics for the care and maintenance of Lowell, and the balance of the $500.00 in escrow in the First National Bank of Chicago, subject to further order of the court.
It is undisputed that defendant initially paid $1,750.00 on the $7,000.00 lump sum alimony amount; that he has made all payments of $200.00 periodic alimony and $300.00 per month for the support of the son, John, pursuant to the decree; that he has made all but three of the $500.00 per month payments for the support of the twins pursuant to the decree and in addition that defendant has made periodic payments of $264.00 to the Illinois Institute of Pediatrics, totaling $5,350.80, to February 27, 1967. After that date, pursuant to the trial judge's order, defendant has made three payments of $132.00 and one payment of $26.40 to the institute.
At the hearings on the petitions, defendant testified that the payments of $5,350.80 and $1,750.00, totaling $7,100.80, were made in satisfaction of his $7,000.00 lump sum alimony obligation. He testified that during May or the spring of 1964 he had several conversations with plaintiff, initially by phone and subsequently at their home in Wilmette. Plaintiff told him that she had received bills from the Illinois Institute of Pediatrics for the care of the children and stated that she would accept the payments which he would make to the institute and would apply them to the $7,000.00 settlement under the decree. He told her that he was not financially able to make the payments every month but would do the best that he could so that they could get the $7,000.00 item paid up in full. She asked whether he would make the payments and if he would allow the payments to be applied to the $7,000.00 and he said that he would because, as she knew, he was unable to make the $1,250.00 semiannual payments. Through subsequent conversations with plaintiff, he was familiar with the children's deteriorating condition and stated that they did not contemplate that the children were ever to return home. There were subsequent telephone conversations during which the plaintiff indicated how much was remaining of the $7,000.00 amount. At no time after that until the time of this petition did the plaintiff or anyone else make a claim against him with respect to the $7,000.00 obligation.
In the trial court plaintiff contended that defendant was obligated under paragraph 11 of the decree to make the $264.00 payments to the Illinois Institute of Pediatrics and he therefore could not be entitled to a set-off in the amounts paid against the $7,000.00 obligation, and that there was no subsequent oral agreement to modify defendant's obligations under the decree, and even if there were, such an agreement had not been approved by the court and could not be enforceable, relying on Walter v. Walter, 189 Ill. App. 345.
The trial court determined that paragraph 11 of the property settlement agreement incorporated into the decree was controlling; that in paragraph 11 defendant agreed "to pay any and all unusual expenses for medical care, drugs or hospitalization for the minor children of the parties, it being agreed at this time that any unusual medical or hospital expense shall be a sum in excess or $200.00 during any calendar month."; that the payments of $264.00 per month to the Illinois Institute of Pediatrics for the care of the twins was a hospital expense in excess of $200.00 per month and therefore an unusual expense for hospitalization to be paid by defendant; that as a matter of law there could be no subsequent enforceable oral agreement to modify the provisions of the divorce decree and therefore held that defendant owed plaintiff $5,250.00 remaining on the $7,000.00 alimony obligation and was not entitled to a set-off for the payments totaling $5,350.80 which he made to the institute; that pursuant to paragraph 11 defendant owes plaintiff $4,224.00 for sixteen monthly payments of $264.00 which she had made to the institute; that defendant is entitled to a credit of $422.00 for the three payments of $132.00 and one of $26.00 to the Illinois Institute of Pediatrics for the care of Lowell, subsequent to the death of David, since that amount is not in excess of $200.00 monthly; that defendant is also obligated to make the three child support payments of $500.00 which he had failed to make between the death of David and the death of Lowell, since he had agreed that the amount of support during the lifetime of the survivor of the two children would be constant, and thus he was in default in such monthly payments in an amount of $1500.00; and that, in total, defendant is indebted to plaintiff in amounts of $5,250.00, $4,224.00 and $1500.00, less a credit of $422.00, or $10,552.00. The court denied plaintiff's request for reasonable attorney's fees of $3,000.00 for representation in the trial court, reserved consideration of plaintiff's petition for increase in alimony and child support payments and made an express finding that there is no just reason for delaying enforcement or appeal. Subsequently, the trial court awarded plaintiff $1500.00 for attorney's fees to defend this appeal.
The critical issue for determination is whether the payments of $264.00 per month to the Illinois Institute of Pediatrics for the full care of the twins were "unusual expenses for medical care, drugs or hospitalization for the minor children" within the meaning of paragraph 11 of the property settlement agreement. The trial court relied upon the second clause of paragraph 11 that "it being agreed at this time that any unusual medical or hospital expense shall be a sum in excess of $200.00 during any calendar month" and held that ...