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Gill v. Gill

NOVEMBER 15, 1972.

MARILYN GILL, PLAINTIFF-APPELLEE,

v.

ROBERT GILL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY A. JONES, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant, Robert Gill, from the entry of an order granting post divorce decree relief for child support. The issues on review are:

1. Whether the plaintiff should be barred by the doctrines of laches or acquiescence, from proceeding against defendant for child support;

2. Whether a defendant, who is personally served 15 years after the original entry of a divorce decree, in which service was by publication, may be ordered to pay retroactive child support; and

3. Whether the amount of child support awarded was proper.

The facts are as follows:

Plaintiff, Marilyn Gill, was married to defendant on April 10, 1948. On March 21, 1956, plaintiff filed a complaint for divorce on grounds of physical cruelty and desertion. Service upon defendant was by publication. On June 28, 1956, a decree for divorce was entered and plaintiff was awarded custody of the couple's five year old son. The question of alimony and child support payments were specifically held in abeyance until further order of court.

In April 1971, defendant communicated with his child for the first time since he had left the marital home and it was at this time that plaintiff first learned of defendant's whereabouts. On May 27, 1971, plaintiff obtained personal service upon defendant of a summons and a copy of the original complaint for divorce. Defendant and his attorney were also notified on that date that plaintiff would petition the court for child support from June 28, 1956, the date of the decree, to the present and for attorney's fees. A hearing on plaintiff's petition was held on July 7, 1971, at which time defendant was represented by counsel. After hearing testimony that the child was supported totally by plaintiff from and before June 28, 1956, to June 28, 1969, when he graduated from high school and began working, the court granted plaintiff's petition for child support. The court allowed support of $20.00 per week and ordered defendant to pay $13,520 plus $500.00 in legal fees to plaintiff. It is from that order that defendant appeals.

Defendant's initial contention on appeal is that plaintiff should have been barred from obtaining a judgment for child support by the doctrines of laches or acquiescence. Defendant contends that by waiting nearly 15 years before seeking an award for child support, plaintiff has slept upon her rights for an impermissibly long time and by so doing defendant contends that she has impliedly consented to defendant's non-payment of support.

• 1-3 Laches is such neglect or omission to assert a right, taken in conjunction with a lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar to a suit. (People ex rel. Cronin v. Cahill, 118 Ill. App.2d 18, 254 N.E.2d 161.) To charge a party with laches in the assertion of an alleged right it is essential that he should have had reasonable knowledge of all the facts necessary to the assertion of his claim. (Tarpoff v. Karandieff, 17 Ill.2d 462, 162 N.E.2d 1.) Prejudice or injury to the adverse party is also a requisite element of laches (Pyle v. Ferrell, 12 Ill.2d 547, 147 N.E.2d 341; Carlson v. Carlson, 409 Ill. 167, 98 N.E.2d 779), and where there is no change in the situation of the parties to the detriment of the adverse party due to the delay, courts will not apply the doctrine of laches. Elliott v. Pure Oil Co., 10 Ill.2d 146, 139 N.E.2d 295.

• 4 Whether a party has been guilty of laches is a question addressed solely to the sound discretion of the trial court. (Johnson v. Central Standard Life Insurance Co., 102 Ill. App.2d 15, 243 N.E.2d 376.) The decision of the trial court will not be disturbed upon review unless the determination of the court is so clearly wrong as to constitute an abuse of discretion. Johnson v. Central Standard Life Insurance Co., 102 Ill. App.2d 15, 243 N.E.2d 376; Trustees of Schools of Tp. No. 38 No. v. City of Chicago, 308 Ill. App. 391, 32 N.E.2d 180.

• 5 In the instant case, plaintiff had no knowledge of the whereabouts of defendant when she obtained a decree of divorce in 1956. The decree specifically provided that "* * * the question of alimony and child support payments be held in abeyance until further order of this court." Plaintiff testified that the first time she had any knowledge of defendant's whereabouts was when defendant on April 1, 1971, contacted his child for the first time since the divorce. On May 27, 1971, plaintiff had defendant personally served with summons from the original divorce proceeding and also with notice of instant action for child support. Defendant offered no evidence to demonstrate that his position had been substantially detrimentally changed by the delay in meeting his obligation to support his child. After careful review of the record in the instant case, we must therefore conclude that the trial court did not abuse its discretion when it found that plaintiff was not guilty of laches.

Defendant next contends that the trial court erred in granting retroactive child support. Defendant contends that the court must have personal jurisdiction over a party before it can enter a judgment for support against that party. Defendant then maintains that as the court in the instant case acquired personal jurisdiction over defendant only in 1971, no judgment for support arising before that time could be entered against him.

• 6 The duty of the father to support his minor child arises out of a natural relationship. (Dwyer v. Dwyer, 366 Ill. 630, 10 N.E.2d 344.) When the parents of a child are divorced and no provision is made in the decree relieving the father of his obligations, the father remains bound to provide reasonable and proper support for the minor child, depending upon the age, ability and circumstances of the child. This is true as long as the child by reason of its tender years or physical ability cannot earn his own living. The divorce decree does not ...


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