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Matthews v. Matthews

OPINION FILED OCTOBER 15, 1976.

JACQUELINE MATTHEWS, PLAINTIFF-APPELLEE,

v.

ARTHUR R. MATTHEWS, JR., DEFENDANT-APPELLANT.



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

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

This is an appeal by the defendant Arthur R. Matthews, Jr., from post-decretal orders entered by the Circuit Court of Cook County, following a divorce decree entered as between the parties.

The parties to this cause were divorced by a decree entered on September 25, 1970. On October 11, 1974, an order was entered awarding to plaintiff and defendant the joint custody, education and control of four minor children of the parties. On October 29, 1974, plaintiff filed petitions in the Circuit Court of Cook County seeking reasonable child support and reasonable attorney's fees in connection with the child custody proceedings. Thereafter, defendant filed a petition seeking reasonable child support from plaintiff. After the evidentiary hearings had been conducted on the petitions, the trial court ordered defendant to pay plaintiff $100 per week child support during plaintiff's 50-day summer visitation with the children, to pay all medical and parochial school expenses of the children, to pay attorney's fees of plaintiff in the sum of $2,500, and to pay $200 to Saks Fifth Avenue, on a bill to such organization. The trial court denied defendant's petition for child support.

Defendant filed notice of appeal from the orders referred to on December 31, 1974. On January 24, 1975, defendant was ordered, in the Circuit Court of Cook County, to pay plaintiff $750 for attorney's fees for the defense of defendant's appeal in conjunction with the orders referred to, which arose in case No. 61822. The appeal from the order to pay the $750 for attorney's fees for defense of defendant's appeal is noted as case No. 61823.

On June 12, 1970, plaintiff filed a complaint for divorce as against defendant. Service was had by publication. On September 25, 1970, a decree of divorce by default was entered in that cause. The decree reserved all questions relating to child support, alimony, attorney's fees and all other matters relating to the settlement of property for further order of the court. The four minor children of the parties were, at the time the decree was entered, in the actual custody of plaintiff.

The decree of divorce referred to was vacated on April 11, 1973, on the ground that the decree was based on a false affidavit for service by publication. On May 4, 1973, plaintiff filed a petition to vacate the order of April 11, 1973. Plaintiff voluntarily transferred custody of the parties' children to defendant on May 10, 1973. On June 22, 1973, an agreed order reinstating the decree of divorce was entered. On June 22, the trial court by order, provided that the children be allowed to reside with defendant until September 7, 1973, at which time arrangements regarding care, custody and control of the children were to be reviewed by the court. The June 22 order further provided for a lump sum settlement in lieu of alimony and for a payment of $600 to Harry Miller, attorney for plaintiff, as attorney's fees for the original divorce proceedings and the post decree proceedings. In September, 1973, the parties' children were interviewed by the court, but no change was made in the custody arrangements.

On January 18, 1974, plaintiff filed a petition alleging that the custody review, as reserved in the June 22, 1973 order, was never had, and prayed therein that the court enter an order awarding custody of the four children to plaintiff. On February 15, 1974, defendant responded with a petition for an order awarding permanent custody of the children to defendant.

On April 5, 1974, plaintiff filed a petition to "Correct Scrivener's Error," alleging that a provision awarding permanent custody of the parties' children to plaintiff was omitted, due to scrivener's error, from the September 25, 1970, decree of divorce. On that same day, an order was entered correcting this alleged scrivener's error. On May 6, 1974, defendant filed a petition to vacate the April 5 order.

Evidentiary hearings on the custody issue were held on various dates between April 8, 1974, and September 16, 1974. On October 11, 1974, an order was entered in the trial court awarding the care, custody, control and education of the four children to plaintiff and defendant jointly. Under this order, the children were to continue to reside with defendant. Plaintiff was given liberal visitation rights, and was to have custody of the children during vacations, including the summer months.

On October 29, 1974, plaintiff filed petitions requesting that defendant be ordered to pay reasonable child support and reasonable attorney's fees for the child custody proceedings. Defendant responded with a petition for an order for child support from plaintiff. Evidentiary hearings on the issues of these petitions were held on November 20, 1974. The evidence disclosed that plaintiff's monthly salary as a court reporter is $1,000 gross, or $702 net. Plaintiff earns an additional $33 per month typing transcripts. Plaintiff's total net income per month is $735. Plaintiff owes $3,000 on an Illinois Guaranteed Loan, on which she pays $100 per month. Plaintiff's current rent was $75 per month, at the time, but plaintiff had made plans to move to a larger apartment which would accommodate the children during their stays with plaintiff. The rent at the new apartment would be $375 per month. Plaintiff also owed her father $3,600, but no repayment schedule was fixed for this debt. Plaintiff has a food bill of $200 per month and car expenses of $15 to $25 per month.

Defendant testified at the hearing that he earned a salary of $1,228 net per month as a research attorney with the appellate research staff for the State of Illinois. Defendant testified to owning assets of a home being purchased on a contract for deed, a $27 bank account, and a checking account with a modest balance. Defendant also testified that he had filed a disbursements plan in Federal Court under chapter XIII of the Bankruptcy Laws. Under such plan, defendant paid $300 per month to creditors. Defendant testified to monthly expenses totaling in excess of $2,000.

Following this evidentiary hearing, an order was entered on December 5, 1974, ordering defendant to pay child support of $100 per week during the children's 50-day summer visitation with plaintiff, to pay all ordinary and extraordinary medical expenses and all tuition expenses for parochial school education for the children, to pay the sum of $200 to Saks Fifth Avenue, and to pay Harry Miller the sum of $2,500 as attorney's fees for plaintiff for legal services in connection with the custody petitions. On January 24, 1975, the December 5 order was modified, by order of the court, to include findings that defendant is financially able to pay all of the ordered allowances and that plaintiff is financially unable to pay for such expenses.

On December 31, 1974, defendant filed notice of appeal from the December 5, 1974, order and also moved for leave to prosecute the appeal as a poor person. On January 3, 1975, plaintiff moved for an award allowing her attorney's fees for the defense of the appeal. On January 24, 1975, an order of the trial court was entered finding that plaintiff was unable to pay for the defense of the appeal and that defendant was financially able to pay for the costs of the appeal, and ordered defendant to pay $750 to plaintiff as attorney's fees for the defense of the appeal. The court also, rather inconsistently, granted defendant leave to prosecute the appeal as a poor person.

On appeal in this court, defendant assigns error to the action of the court in denying defendant's petition for child support from plaintiff and in requiring defendant to pay plaintiff $100 per week as child support during plaintiff's 50-day summer visitation with his children, and requiring defendant to pay all ordinary and extraordinary medical and parochial school expenses of the children. Defendant also asserts that the trial court abused its discretion in requiring defendant to pay plaintiff's attorney's fees in the amount of $2,500 and the $200 bill to Saks Fifth Avenue, as well as the order relating to attorney's fees for the defense of the appeal now involved ...


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