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Green v. Green

AUGUST 8, 1974.

JAMES C. GREEN, PLAINTIFF-APPELLANT,

v.

SHIRLEY J. GREEN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. ARTHUR L. GREENWOOD, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

This is an appeal by the plaintiff husband from an order of the Circuit Court of Madison County awarding a judgment to the defendant wife for past-due alimony and child support. Appellant contends that equitable principles require the setting aside of such judgment because the circumstances show that his default and arrearage in payments were beyond his control. He also contends that the court's interpretation of certain portions of the original support order was incorrect.

A full understanding of the issues necessitates a detailed summary of the background of facts and pleadings leading up to the judgment in question. Following a complaint for divorce filed by her husband, defendant wife filed a counterclaim for separate maintenance and a petition for temporary alimony and child support. Based on an agreement between the parties the court entered his own hand-written order on April 6, 1972, providing, among other things, that the husband pay to the wife as and for temporary child support and alimony the sum of $200 per week beginning April 10, 1972, and further, that he should "pay all household expenses and utility payments."

In February 1973, the wife filed a petition for citation seeking to hold her husband in contempt for failure to comply with said order, and requesting a judgment for the amount he was in arrears, plus attorney fees and court costs. On April 9, just prior to the hearing on the citation petition, the husband filed a petition to modify the original order, requesting a reduction in his support and alimony payments because of a drastic reduction in his income, and further asking for an interpretation of that portion of the order referring to payment of household and utility expenses. The court refused to hear the petition to modify, stating it would be set for a later time, and then proceeded with the hearing on the citation. Mrs. Green testified that her husband was in arrears $3200 in weekly payments and that he had not paid any household or utility expenses. These latter expenses she interpreted to mean mortgage payments, house and individual insurance policy premiums, repairs, utility bills, donations, vacations, books, magazines, etc., and she estimated them to be $1072 per month. Mr. Green did not testify but from his answers to interrogatories previously filed in the case it was apparent that at the time of the original order he was making $600 per week. However, within 5 days after the entry of this order his company was placed in receivership, causing him to lose not only his income but all of his assets. His counsel admitted that since plaintiff made no effort to seek a modification of the order his wife probably did have a vested right to the unpaid support money at the rate of $200 per week, but he argued that she was not entitled to household and utility expenses as that provision was intended to apply only to such expenses due at the time the order was entered and not to future expenses, and certainly not to expenses of the type enumerated by Mrs. Green. The court commented that the order relative to these expenses appeared to him to be ambiguous and that he was concerned with what it really meant. However, after a recess, the court announced from the bench that having considered all of the testimony, and the answers to the interrogatories as well, he found that the evidence supported an arrearage of $3200 in weekly payments and $10,720 in household expenses, or a total of $13,600 up to the date of filing of the petition for citation. He then stated that, "* * * the court enters judgment for defendant and against plaintiff for said amount." In addition, the court found that the failure to pay household expenses was not wilful, but that the failure to pay the weekly amounts was wilful, and plaintiff was sentenced to serve 7 days in the county jail. Further, the clerk was directed to set a date for a hearing on plaintiff's petition to modify and also a date for a hearing of the case on its merits.

These pronouncements from the bench show up on the docket for April 9, 1973, as follows:

"Hearing held on Pet. for Citation filed on Feb. 2, 1973. Parties and attorneys present and ready. Witnesses sworn. Testimony presented. (Tape 144-side 2) Order entered. See Order. A. Greenwood."

The order referred to, hand-written and signed by the judge, is also dated April 9, 1973, and reads as follows:

"Hearing held on Pet. for Citation filed Feb. 2, 1973, court finds:

(1) Arrearage owed by Plaintiff to Defendant as of date of Pet. for Cit. Feb. 2, 1973 to be $13600.00.

(2) Judgment should be entered for Defendant against Plaintiff for $13600.

(3) Defendant's request for Atty Fees and Costs reserved.

(4) Plaintiff in wilful contempt for failure to pay as ordered and specifically the willfulness in paying only $100/wk. rather than 200.00/wk. as ordered.

(5) Plaintiff in technical contempt but not wilful for failure to pay the household ...


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