APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
CROWN, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff wife from two orders in a post-divorce decree proceeding, one abating the father's child support payments and the other modifying his visitation rights. On appeal, it is contended that (1) the court erred in abating child support payments because of unemployment where no finding was made as to his ability to work or whether he was acting in good faith in not seeking other employment; (2) the court's finding that defendant had not wrongfully dissipated certain assets was against the manifest weight of the evidence; (3) plaintiff was not given an adequate opportunity to conduct discovery; and (4) the court abused its discretion in modifying defendant's visitation schedule.
The record reflects that a 1963 divorce decree required defendant to make child support payments aggregating $55 per week for two minor children. In June, 1975, plaintiff defendant's former wife petitioned the court for an increase in child support payments, alleging that his gross income had increased from $12,000 in 1963 to $18,000 per year. The petition was granted, and the support payments were increased to a total of $80 per week. A request for attorney's fees was not heard at that time and was still pending when, on September 17, 1975, defendant petitioned to advance the hearing on the fees and to terminate or reduce the child support payments. He alleged that as a result of the prior hearings he had become "sick, ill and depressed, his job was terminated, his sidelines terminated, and his income reduced to nothing." Further, it was alleged that his wife, on whose income he was then living, was moving to California on October 1 and that he would have to move with her to save their marriage.
At the hearing on the petition on September 22, defendant's attorney first filed an answer which generally denied the allegations of the petition and he then informed the court that he had taken the deposition of defendant who, among other things, had testified he had withdrawn money from a joint savings account and had given it to his present wife. Counsel then stated that he had issued a subpoena requiring her appearance to testify at the hearing. It appears that her attorney was also present, and a motion to quash the subpoena because of improper service was granted.
At the hearing, defendant testified that he had been discharged by his employer. He stated that he lost his job when he was unable to perform his duties because he could not "get hold of myself" as a result of the child support hearings. He was physically fine but had an emotional problem from which he said he could not "get myself in gear." He stated also that in the several months prior to the hearing, he had received no income from a side business and that he was going to California with his wife to save his marriage. The only assets he had were some stock and a 1975 automobile with a $4,000 mortgage and for which he paid $6,000.
He further testified that some money in a joint savings account, amounting to roughly $10,000, belonged to his present wife and that he had transferred it to her at her request because she was moving to California. After his discharge from work, he took trips to California and Canada, and although he sought no medical attention concerning his mental condition, he did talk about his condition to his brother-in-law, who is a psychiatrist in California.
An order was entered abating the child support payments but requiring defendant to report monthly to plaintiff on his employment status and to send her a copy of his income tax returns. His stock, valued at about $800, was ordered to be sold and the proceeds applied to the support of his children. In addition, the court modified the visitation schedule by granting defendant six weeks visitation in California during the summer and two weeks every other year during the Christmas season.
• 1 Plaintiff first contends that the court erred in abating the child support payments without determining whether defendant was able to work or whether he was acting in good faith in not seeking other employment.
Section 18 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 19) provides that a trial court may terminate or alter child support provisions previously ordered; however, only a material change in circumstances will justify any such modification (Kelleher v. Kelleher (1966), 67 Ill. App.2d 410, 214 N.E.2d 139), and the burden of demonstrating circumstances warranting modification is on the person seeking it (Daum v. Daum (1973), 11 Ill. App.3d 245, 296 N.E.2d 614).
In support of her contention that the court erred in abating the payments here, plaintiff refers us to Martinec v. Martinec (1974), 17 Ill. App.3d 402, 308 N.E.2d 161 (abstract opinion); Graham v. Graham (1974), 21 Ill. App.3d 1032, 316 N.E.2d 143; Kohn v. Kohn (1974), 21 Ill. App.3d 117, 315 N.E.2d 52 (abstract opinion); Commonwealth v. Mazon (1949), 163 Pa. Super. 502, 63 A.2d 112. A reading of those cases discloses that they stand for the general proposition of law that unless good faith is shown, a voluntary change in or termination of employment will not be considered a sufficient material change to warrant abatement or modification of child support payments. In the present case, however, the record indicates that defendant's termination of employment was involuntary, and the parties have cited no case, nor have we found any, which have applied the good faith rule in cases involving an involuntary termination or change of employment.
We note that the cases requiring a showing of good faith in voluntary situations are concerned with whether the termination or change was "prompted by a desire to evade his responsibility." (Graham, at 1036; see also, Martinec; Kohn.) In Mazon, the court held that a party "may not refuse to occupy his time profitably" to avoid making support payments. (63 A.2d 112, 114.) We subscribe to the reasoning of these cases, and we are of the opinion that it should also be applied where abatement or reduction of payments is requested because of an involuntary loss of employment. It appears to us that in either situation a parent should not be permitted to avoid responsibility for such payments by the bad faith refusal to earn income.
We believe, however, that there should be a different application of the good faith rule where involuntariness is shown. For example, it appears to us that child support payments may properly be abated or reduced where an inability to pay results from involuntary loss of employment, but we think that such relief should be temporary in nature in the sense that the petitioning party should be required within a reasonable time to establish that continued unemployment was in good faith; i.e., was the result of mental or physical disability or unsuccessful attempts to obtain other employment.
Here, it was within the discretion of the trial court to abate the child support payments on the uncontradicted testimony of defendant that he was discharged from his employment and had no other income. We note that the court recognized the continuing responsibility of defendant under the previous court order to make those payments by requiring that his stock be sold and the proceeds used as support payments; that he notify plaintiff monthly concerning his employment status; and that he provide her with a copy of his income tax returns. However, it seems to us that such a solution is inadequate in that it would permit a party to refrain from seeking employment, or to earn income in any manner, in order to avoid making payments. It has the effect of a permanent abatement because, by refusing to occupy his time profitably, the party could avoid ever making payments. This is particularly so in the instant case, where defendant is being supported by his present wife and needs only wait a few years until his children, now ages 16 and 14, become of age.
Although it is the rule that modification of child support provisions generally rests in the sound discretion of the trial court (Scalfaro v. Scalfaro (1970), 123 Ill. App.2d 23, 259 N.E.2d 644), such an order may be reversed when manifest injustice has been done (16A Ill. L. & Pr. Divorce § 253 (1971)). Here, at the time the abatement order was entered, defendant had already been unemployed for about five weeks, and it does not appear from the record that defendant established good faith in his inability to provide support. This, of course, placed the burden on his wife, who had not been ordered to do so although she had a "joint and severable" financial responsibility with defendant to support their children. (Hursh v. Hursh (1975), 26 Ill. App.3d 947, 326 N.E.2d 95.) Thus, we are of the opinion that defendant's alleged inability to pay, absent a showing of good faith, has resulted in not only manifest injustice to plaintiff, but perhaps also to the children, in view of the fact that there was no evidence in the record concerning plaintiff's ability to support them. We hasten ...