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Baker v. Baker

OPINION FILED JULY 26, 1977.

MARILYN G. BAKER, PLAINTIFF-APPELLANT,

v.

ARTHUR E. BAKER, DEFENDANT-APPELLEE.



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

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

Rehearing denied October 11, 1977.

Defendant, Arthur E. Baker, brought a post-decree divorce proceeding against plaintiff, Marilyn G. Baker, seeking termination of his unallocated alimony and child-support payments. Plaintiff then cross-petitioned for an increase in payments. After a hearing on the petitions, the court granted defendant's petition to the extent that defendant was ordered to pay a reduced sum as regular, periodic alimony. Plaintiff's petition for an increase was denied. On appeal plaintiff contends that the court's decision was arbitrary, capricious, and contrary to the manifest weight of the evidence.

Plaintiff and defendant were married on June 3, 1945, and thereafter adopted two children, James and Jean. On March 14, 1968, a judgment of divorce was rendered in plaintiff's favor. The divorce decree awarded plaintiff permanent custody of the two children and set forth the arrangement for alimony and child support. Defendant was ordered to pay alimony and child support "in solido" *fn1 of $12,500 per year, as per the intention and prior agreement of the parties. In addition, the decree provided that plaintiff's income after the entry of divorce would not prejudice her rights to permanent alimony and child support, but that if, and only if, she petitioned for an increase would her income from employment be considered by the court. Defendant was also ordered to pay the medical expenses of his children in excess of $50 per month and to pay for their expenses for camp and college. The decree incorporated a property settlement agreement whereby the jointly owned marital home was to be sold and the proceeds divided 65% to plaintiff and 35% to defendant.

Following the divorce, the parties engaged in lengthy litigation over the provisions set forth in the decree. Following the 1968 divorce, and prior to October 17, 1974, defendant filed at least five petitions for modification of the support provision, and plaintiff countered with at least one petition for an increase in support and one petition to hold the defendant in contempt. During that period defendant went through bankruptcy and relocated his dental practice in California. At one point during this period, the trial court temporarily reduced the monthly payments to $700, and then later reinstated the $1,000 monthly payment.

The instant appeal arises from defendant's petition on October 17, 1974, wherein he petitioned for a complete termination of the alimony and child support. He alleged that no minor children were living with plaintiff; that the son, James, had reached his majority and no longer attended school or communicated with defendant; and that plaintiff was employable and should support herself. Plaintiff admitted that no minor children lived with her but denied that unallocated alimony and child support were not owed her. She also answered that James was still in college and in communication with defendant as to defendant's occasional refusals to pay for James' schooling; and that her earnings as an interior decorator netted her meager profits. Lastly, she alleged that the divorce decree barred defendant's reference to her ability to support herself; and that the judgment for divorce "was part of a package deal" whereby defendant received substantial benefits from the sale of the marital home, in return for which he became obligated for plaintiff's support and that of the children.

Plaintiff also cross-petitioned for an increase in support. She alleged that her expenses had greatly increased; that defendant's income had greatly increased; that the cost of living had greatly increased; that defendant had alienated their son by his refusal to pay for James' college education; and that defendant had permitted their daughter, Jean, to run off and marry an older man of questionable background. On October 23, 1974, the court entered a temporary order of $700 unallocated alimony and child-support per month pending a hearing.

The testimony adduced at that hearing established that plaintiff was living alone in an apartment, and that she occasionally worked as a free lance interior decorator. She owned a bond in the amount of $16,000 and was making payments on an automobile. Although her monthly expenses exceeded $1,300, she had also contributed to the support of her emancipated children. She was under a physician's care for cataracts and a circulatory problem. Defendant was the sole shareholder in a profitable professional corporation which bears his name, is practicing dentistry in California, and has paid off all the expenses incurred in buying that practice. Both defendant and his present wife receive salaries from the corporation, and defendant has set up several pension plans for himself. He had recently purchased a condominium.

Following the evidentiary hearing, the court entered an order allowing defendant's petition and modifying the decree so that commencing August 1, 1975, defendant was to pay plaintiff regular periodic alimony in the sum of $500 per month. The order denied any and all relief requested by plaintiff. She now appeals from the grant of defendant's petition for modification, from the denial of her own petition for modification, and from the denial of her post-trial motion.

I.

• 1 On application, the trial court may alter the allowance of alimony and child support as appears reasonable and proper. (Ill. Rev. Stat. 1973, ch. 40, par. 19.) Such modification of alimony provisions in a divorce decree rests in the sound judicial discretion of the trial court, and unless the record shows an abuse of discretion, the modification will not be reversed on appeal. (White v. White (3d Dist. 1976), 41 Ill. App.3d 758, 762, 354 N.E.2d 486; Page v. Page (3d Dist. 1975), 30 Ill. App.3d 514, 515, 334 N.E.2d 212; Booth v. Booth (1st Dist. 1972), 6 Ill. App.3d 62, 64, 284 N.E.2d 506.) Although the Divorce Act does not specify the conditions on which alimony may be terminated or modified, it has been construed to allow modification of an award upon a showing of substantial change in the circumstances of the parties. (Lane v. Lane (1st Dist. 1975), 35 Ill. App.3d 276, 340 N.E.2d 705; Tuey v. Tuey (1st Dist. 1974), 20 Ill. App.3d 445, 447, 314 N.E.2d 371; Tan v. Tan (1st Dist. 1972), 3 Ill. App.3d 671, 675, 279 N.E.2d 486.) However, the modification may not be made arbitrarily or capriciously. (Baker v. Baker (1st Dist. 1975), 28 Ill. App.3d 680, 681, 329 N.E.2d 408; Bowman v. Bowman (1st Dist. 1973), 11 Ill. App.3d 719, 721, 298 N.E.2d 339.) It must be shown that such a modification is equitable. (Lane, at 279.) These well-established rules are equally applicable to modification of child-support awards. Addington v. Addington (1st Dist. 1977), 48 Ill. App.3d 859, 363 N.E.2d 151, Elizer v. Elizer (5th Dist. 1976), 36 Ill. App.3d 552, 554-55, 344 N.E.2d 493; Thomas v. Thomas (1st Dist. 1974), 23 Ill. App.3d 936, 941, 321 N.E.2d 159.

Plaintiff contends that the trial court abused its discretion by granting defendant a reduction in the "in solido" alimony and child-support award, by denying plaintiff's petition for an increase, and by acting arbitrarily, capriciously, and contrary to the manifest weight of the evidence. For the reasons discussed herein, we agree.

A.

Plaintiff maintains that defendant failed to sustain his burden of proving a material change of circumstances justifying the substantial reduction ordered. In petitioning for modification, the burden of proof is upon the applicant to establish his right thereto. (Daum v. Daum (5th Dist. 1973), 11 Ill. App.3d 245, 249, 296 N.E.2d 614; Glassmeyer v. Glassmeyer (1st Dist. 1971), 131 Ill. App.2d 419, 422, 268 N.E.2d 251; Loucks v. Loucks (5th Dist. 1971), 130 Ill. App.2d 961, 964, 266 N.E.2d 924.) Plaintiff argues that defendant failed to show a change in circumstances in that he introduced no evidence of plaintiff's needs, the needs of the emancipated children, any increase in plaintiff's income, or any decrease in defendant's income. Additionally plaintiff emphasizes that defendant failed to introduce any evidence as to the parties' intent when they originally planned the "in solido" alimony and child support award. What she highlights is that the decree was ...


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