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Wohl v. Wohl

APRIL 25, 1975.

NANCY D. WOHL, A/K/A NANCY D. MICKLER, PLAINTIFF-APPELLANT,

v.

KENNETH S. WOHL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID LINN, Judge, presiding.

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

This appeal arises from an order entered in a post-decree proceeding which granted the defendant a reduction in child-support payments.

On appeal, the plaintiff raises one issue: whether the trial court erred in considering the mother's employment in ordering a reduction in child-support payments due from the defendant father.

The parties were divorced on April 9, 1969. The divorce decree approved and incorporated a property settlement agreement entered into between the parties which provided, among other things, as follows: that custody of the parties' two minor children shall be with plaintiff; that defendant would contribute $225 per child per month for support of the children; that defendant would provide $4,600 to plaintiff in lieu of alimony. The settlement agreement also provided that:

"The husband agrees that he will not advance as a reason for modification of the child support payments provided for in this agreement any future employment the wife may obtain."

At the time of the divorce, plaintiff was unemployed and defendant's income was $18,000 per year.

In July, 1973, defendant unilaterally determined to reduce his child-support payments from the agreed $450 to $300 per month. In October, 1973, plaintiff filed a petition to reduce the then existing arrearage to judgment. Defendant answered the petition and sought a reduction in his child support payments, relying primarily upon the plaintiff's employment and income which first arose subsequent to the entry of the divorce decree. *fn1

Based upon the petition, answer and subsequent hearing, the trial court entered an order which reduced defendant's child support payments from $450 to $350 per month. The order contained the following findings:

"1. The provision in the parties, agreement, dated March 21, 1969, which was incorporated and approved in the Decree for Divorce entered herein on April 9, 1969 and which provides that: `* * * the husband agrees that he will not advance as a reason for modification of the child support payments provided in this agreement any future employment the wife may obtain * * *. is not binding on this Court and does not preclude it from modifying the defendant's child support obligation.

2. The Court considered all matters and evidence presented and the employment of the wife subsequent to the entry of the decree and the earnings derived therefrom and together same represent material changes of circumstances which warrant a modification of the defendant's child support obligation."

Plaintiff appeals from this order, contending that the court's refusal to be bound by the parties' agreement with respect to the wife's employment constitutes reversible error. We agree with plaintiff.

OPINION

On appeal, the single issue raised is whether the trial court erred in considering the mother's employment and income derived therefrom as a factor in ordering a reduction in child support payments due from the defendant father.

Plaintiff argues that the parties knowingly and voluntarily entered into a binding agreement, incorporated into the divorce decree, which precludes defendant from advancing the wife's employment as a change in circumstance justifying the modification of the child support payments due from the father. Defendant contends that the provision agreed upon between the parties violates the public policy of the State in that it absolves the wife from liability for her share of equitable child support. Defendant argues that public policy mandates that contributions to child support should be determined in proportion to the parents' financial ability based on the facts of the individual case. It is ...


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