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Slavis v. Slavis

JUNE 18, 1973.

CAROLE SLAVIS, PLAINTIFF-APPELLANT,

v.

GERALD SLAVIS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. IRVING LANDESMAN, Judge, presiding.

MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:

In September, 1968, the plaintiff, Carole Slavis, filed a petition for the enforcement of arrearage of alimony and child support granted pursuant to a decree for divorce as later modified. After a trial the court denied the plaintiff's petition on the ground that "by her actions, [she] knowingly waived her rights to collect alimony and by her conduct, assumed the responsibility to support her own child and is thereby estopped from asserting her rights under the original Court Order for child support and alimony." The record before us does not contain a stenographic transcript of the testimony heard but consists of, in addition to the pleadings in the circuit court of Cook County, pleadings and orders from proceedings in California and New York, various letters, principally between attorneys, memoranda of law submitted by both parties, and the final order of the trial judge which contained specific findings of fact.

• 1 The defendant correctly asserts that the absence of a report of proceedings precludes a review of the trial court's determination of fact (Lukas v. Lukas, 381 Ill. 429, 45 N.E.2d 869), but that does not mean that a reviewing court may not question whether the factual findings support the legal conclusions of the trial court. See Continental Paper Grading Co. v. Fisher, 3 Ill. App.2d 118, 120 N.E.2d 577.

The plaintiff and the defendant, Gerald Slavis, were married in May, 1960, and divorced in July, 1964. They had one child, Ricky, who was three years old at the time of divorce. The decree incorporated a property settlement agreement, under which the defendant agreed to pay $12.50 per week for permanent alimony. The first payment was to begin upon the entry of the decree and end on the remarriage of the wife or death of the wife or husband. The agreement also provided that the husband pay $50.00 per week for the support of the minor child and $595.00 for arrearages due for alimony and child support. The plaintiff was given custody of the child, and the defendant had visitation rights of one day each weekend from 12 noon to 7 P.M., the right to take the child for the weekend four times a year and the right to take the child for one week during the summer vacation. The defendant further agreed to keep his life insurance policy in full force and effect with the child as beneficiary and to maintain Blue Cross and Blue Shield policies to cover the child.

In March, 1965, the defendant filed a petition in New York, where both parties were residents, alleging, in substance, that his wife had taken his son to Jamaica in November, 1964, without notice to him. The New York court ordered the plaintiff to make the child available there for visitation purposes. She never complied with that order. In September, 1968, a California court, pursuant to an action brought by the defendant, modified the Illinois decree and, in compliance with the stipulation of the plaintiff and defendant, terminated alimony as of December 28, 1967, and reduced child support payments to $125.00 per month effective August 30, 1968, to continue until further order of the court or until the child reached majority. The defendant was further obligated to carry the child as a beneficiary on his medical and hospital policies. The court modified the visitation rights of the defendant, who was to bear all transportation expenses for visitation and was to forward to the wife appropriate tickets to transport the child from his place of residence to wherever the plaintiff was to meet him. The plaintiff was restrained from removing the child from California except for periods not to exceed a month for vacation and ordered to advise the defendant within one week of any change of address of the child's residence. The California court specifically found that it was without jurisdiction to deal with the arrearage on alimony or child support.

After the hearing on the petition before us, the trial court entered the order denying the plaintiff's petition and included the specific findings of fact which, in pertinent part, are as follows:

1. That the evidence was that both plaintiff and defendant removed their permanent residence from Illinois to the State of New York at about the time that the entry of the Decree of Divorce herein occurred. There was no objection on the part of either party to the removal from Illinois to New York.

2. (a) The plaintiff subsequently moved to Jamaica with their minor child. At that time, the defendant was current in all his support payments. Plaintiff had been born and raised in Jamaica, although she had attended schools in the United States and had been residing here with her parents for some time before she left. She obtained a contract for employment in Jamaica. Plaintiff and defendant both testified that she told the defendant that she was leaving for Jamaica with the child. He objected and told her he would discontinue payments of alimony and child support if she left. Despite this, plaintiff moved to Jamaica. After she moved, defendant spoke by phone to plaintiff from Jamaica. Defendant then started Court proceedings in New York, asking for plaintiff's return with the child and seeking visitation. Plaintiff was served by mail in Jamaica, but no appearance on her behalf was filed.

(b) An ex parte order was entered by the New York Court on July 6, 1965, directing plaintiff to return RICKY, the minor child, to the State of New York. Defendant did not seek, nor did he receive, any order to suspend alimony and child support payments. Defendant ceased to make any payments after she left New York.

3. Defendant traveled to Jamaica in October, 1965. He met the plaintiff and her parents. He was told that RICKY was out of the city, that he could not be brought back to the city and that the defendant could travel out to the country to see RICKY. Defendant testified that he gave plaintiff a check, which she tore up. He claimed that she said she did not want his money nor did she want him to have anything to do with RICKY. She denies this. The father did not see RICKY in Jamaica. He consulted a solicitor and barrister in Jamaica and was advised by them that legal action to obtain RICKY's return to the United States would be of no avail. (Emphasis added.)

4. In October, 1967, defendant, in New York, learned that plaintiff had moved to Los Angeles, California, during April, 1967, some six months earlier. From the time plaintiff moved to Jamaica in 1965 until she filed an action in Illinois in 1968, plaintiff did not advise defendant of the specific whereabouts of RICKY or herself nor was any demand made for alimony or child support nor was there ever any communication from plaintiff to defendant that she was in need of support for RICKY or herself. (Emphasis in Order.)

5. (a) In Los Angeles, defendant hired counsel and brought an action for change of custody of the minor child, RICKY. An order was entered in October, 1968, regarding the prayer for change of custody and by agreement, the Court ordered changes regarding alimony, child support and visitation, but declined to pass on the arrearage.

(b) In October, 1968, after the Los Angeles action was concluded, plaintiff secured Illinois counsel and filed the present petition to collect arrearage of unpaid alimony and child support.

6. The Court finds that plaintiff, by her actions, knowingly waived her rights to collect alimony and by her conduct, assumed the responsibility to support her own child and is thereby estopped from asserting her rights ...


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