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Addington v. Addington

OPINION FILED MAY 6, 1977.

MARGO C. ADDINGTON, N/K/A MARGO C. FAIRBANK, PLAINTIFF-APPELLANT,

v.

KEANE H. ADDINGTON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN CROWN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the trial court's denial of her petition for modification of a divorce decree to increase child support. The sole issue on appeal is whether plaintiff has adequately demonstrated an increased need to warrant modification. We reverse and remand.

The parties to this suit were divorced in 1968. The divorce decree granted custody of the couple's four minor children to plaintiff. A written agreement by the parties was incorporated into the decree which adjusted their property rights, and provided for the support and education of the children, and for alimony to plaintiff. The agreement provided in relevant part that defendant was required to pay plaintiff $250 per month for the support and maintenance of each child until the child attended a school which necessitated living away from home, married or died. Defendant's support payment to plaintiff for any child attending school away from home was to be reduced to $100 per month. The agreement also stated that each child is the beneficiary of a trust which paid for his or her tuition and school expenses. However, defendant was required to pay the reasonable expenses of schooling (e.g., tuition, books, room and board, transportation, activity fees and personal expenses), in the event that a child's trust became insufficient to meet such expenses.

Plaintiff filed her petition for modification of the divorce decree on January 31, 1975. It is undisputed that defendant had been meeting his obligations under the decree, making payments of $850 per month to plaintiff for child support while the oldest child was away at college. The petition alleged inter alia that plaintiff's expenses for the children are in excess of $1400 per month, that she is without independent income to support the children, and that defendant has substantial income with which to "additionally" support the children. A schedule of expenses was attached to the petition. A revised petition and schedule allege that these expenses are in excess of $2000 per month; further, that since entry of the decree defendant has been relieved of his obligation to pay plaintiff $666 per month alimony, and that his income has substantially increased.

Defendant filed a response to the petition and a schedule, contending that in addition to the child support payments that he was required to make by the divorce decree, he has made voluntary contributions to the children in the form of allowances, membership fees, cash gifts, vacations and clothing.

At a hearing on the petition it was established that since her divorce from defendant, plaintiff remarried, and the $666 per month alimony payments she had been receiving from defendant were thereby terminated. Thereafter, plaintiff was divorced from her second husband, and at the time of the instant hearing was receiving $1200 per month as alimony from him. Defendant also remarried after the 1968 divorce, and had two children with his present wife. The four children born of the marriage between plaintiff and defendant ranged from 14 years to 19 years of age at the time of the hearing. The three younger children lived with plaintiff and attended private school in the area; the oldest child attended college out of State and lived with plaintiff only during vacations.

After considering the pleadings in the cause, the deposition transcripts of both parties, defendant's summary of deposition testimony, and argument of counsel, the trial court made certain oral findings of fact and conclusions of law. The court found that defendant's income is "materially greater" and that he has the ability to pay additional support. The trial court also found that plaintiff has shown a material change of circumstance, but that the change was brought about by inflation and the fact that as the children grew older it cost more to raise them. The trial court then stated:

"Where is the material change in circumstances other than inflation and the increased age? Those two warrant the change in the child support with nothing else being shown if on the husband's side or on the non-custodial parent's side, there is an additional ability to pay and the initial support payments were less than adequate."

The trial court also noted that the alimony that plaintiff was currently receiving from her second husband constituted "income" to her to the same extent as if she had been working. The trial court stated:

"It [plaintiff's alimony] is not relevant to the consideration with the respect to child support. But it is income, and it has to be taken into consideration because she has an obligation."

The trial court observed that having taken on all the rights of a custodial parent, plaintiff has the corresponding duty of support to the extent of her ability. The trial court further noted that the childrens' trusts paid for certain of their expenses, and that the only expenditures made by plaintiff on behalf of the children were for their clothing and for housing and food while they were home. The trial court then stated that it was "accepting the expenses that [plaintiff] is spending."

Defense counsel stated that in addition to the funds provided by the trusts and defendant's support payments, defendant pays each of the children regular allowances and that he has assumed other "voluntary obligations." The trial court orally found:

"[T]here is a material change of circumstance. I find that [defendant] is in a position where he can pay more child support but I do not find that it has been demonstrated that there is additional need. I find that the amount of child support awarded in `68 was in `68 more than adequate and is still more than adequate. This, in combination with the voluntary payment, and if the voluntary payment should cease, I would think it would not be inappropriate for there to be a reapplication to the Court."

However, the trial court then reviewed the provision in the divorce decree which referred to certain costs and expenses to be paid by defendant in the event that a child's trust income or assets become ...


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