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Hursh v. Hursh

MARCH 4, 1975.

RUTH ANN HURSH, PLAINTIFF-APPELLEE,

v.

JOHN PAUL HURSH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

John Paul Hursh, defendant-appellant, brings this appeal from the denial of his petition for an order requiring Ruth Ann Hursh, plaintiff-appellee, to contribute an equitable amount to the support of their son.

The issues presented by the appeal in this case are: (1) do divorced parents share financial responsibility under Illinois law for the support of their minor children; and (2) did the trial court abuse its discretion in denying the defendant's request to require the non-custodian mother (plaintiff) to contribute an equitable amount in the support of their minor child.

The facts were as follows. Ruth Ann Hursh (plaintiff) and John Paul Hursh (defendant) were married in 1960. On September 22, 1969, plaintiff was granted an uncontested divorce and given custody of their son, then 8 years old. An agreement, entered into by the parties on June 27, 1969, was made a part of the divorce decree. The pertinent parts of that agreement for this appeal are: "Article Two — Child Support," wherein the defendant agreed to pay plaintiff $50 per week for the support of their 8-year-old son; and "Article Three — Custody," which gave the plaintiff the sole care, custody, education and control of the minor child, with reasonable visitation rights to the defendant.

On January 12, 1973, the defendant filed a petition for a change in the custody order, alleging that for a number of reasons the plaintiff was no longer fit to care for the boy. On March 1, 1973, an agreed order was entered which changed the physical custody of the minor child from the plaintiff to the defendant; provided visitation rights for the plaintiff and abatement of the support payments; and specified that defendant's present wife terminate any and all employment and that defendant not move from Cook County without the consent of the plaintiff or the permission of the court.

On June 29, 1973, defendant filed the petition from which this appeal stems. Defendant requested that plaintiff, who allegedly had an excellent position with good income, be required to contribute an equitable amount to the support of their son, and to turn over certain articles which the child possessed when living with her, but which she refused to let him take to the father's home. The petition further alleged that defendant requested support from plaintiff because of the custody change which altered his financial circumstances since his present wife was ordered to terminate all employment; that a rental arrangement which previously provided income of $200 per month was now undesirable because of the boy's presence in the home; that the growth of the child caused an increase in the cost of maintaining the child; and finally that the improved financial ability of the plaintiff enabled her to contribute to the support of the child.

At a hearing on the petition, after learning the defendant earned $16,000 a year, the trial judge stated: "The petition is denied." At counsel's request, defendant was allowed to put on some evidence supporting his petition. At the close of this evidence, the trial court once again denied the petition. However, the plaintiff was ordered to make available to the defendant the child's tape recorder and bicycle.

Thereafter, defendant filed a post-trial motion for a new hearing alleging eight ways in which the trial court erred. In summary, these errors concerned the conduct of the hearings, the rulings of the trial court, and the conclusion of the trial court in ruling that the mother need not contribute regardless of her earnings.

At the hearing on defendant's motion for rehearing, defendant pointed out to the trial court that the evidence introduced at the 1973 hearing indicated that plaintiff, an employee of I.B.M., was earning $20,000 per year and defendant was earning $16,000 yearly. In denying defendant's motion, the trial court said: "You take it up to the Appellate Court and let them prove that the wife should contribute if she is making more money."

I.

The Illinois statute pertaining to custody and support arrangements accompanying a divorce decree (Ill. Rev. Stat. 1973, ch. 40, par. 19) specifies that:

"When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just and, in all cases, including default cases, the court shall make inquiry with respect to the children of the parties, if any, and shall make such order touching the care, custody, support and education of the minor children of the parties or any of them, as shall be deemed proper and for the benefit of the children."

The statute further provides:

"The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the ...


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