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Swanson v. Swanson

OPINION FILED AUGUST 31, 1977.

THERESA L. SWANSON, PLAINTIFF-APPELLANT,

v.

RICHARD A. SWANSON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Knox County; the Hon. CHARLES H. WILHELM, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

This is an appeal by the plaintiff, Theresa L. Swanson, from a post-decretal order entered by the Circuit Court of Knox County. That order denied the plaintiff's petition to modify a divorce decree, entered January 9, 1974, as to the amount of child support and granted the petition of the defendant, Richard A. Swanson, to modify the divorce decree. As a result, the trial court set the child support at $180 to be paid on alternate Thursdays and, thereby, eliminated the provision in the divorce decree which stated, in relevant part:

"The father shall pay to the mother, for child support, the sum of $150.00 on alternate Thursdays. * * * If the father's gross income increases, support shall increase proportionately."

The plaintiff now appeals.

• 1, 2 The defendant contends that the modification was justified by the increase in the plaintiff's income. There is no question that the trial court has the power to modify child support provisions of a divorce decree if the modification is shown to be necessary by changes in the conditions and circumstances of the parties occurring subsequent to the divorce decree. (Edwards v. Edwards (4th Dist. 1970), 125 Ill. App.2d 91, 259 N.E.2d 820.) Just as in initially determining the amount of support, the facts to be considered by the trial court in modifying the support provisions of a divorce decree include the ages of the parties, their condition of health, the property and income of the mother, the property and income of the father, and the station in life of the parties. (See Knox v. Knox (1st Dist. 1975), 31 Ill. App.3d 816, 334 N.E.2d 891.) Once the trial court has exercised its discretion and ordered a modification, the order will not be disturbed on review, absent an abuse of discretion. Edwards v. Edwards (4th Dist. 1970), 125 Ill. App.2d 91, 259 N.E.2d 820.

• 3, 4 We believe there has been an abuse of discretion in this case. Since the amount of child support is to be determined "by accomodating the needs of the children with the available means of the parties" (Knox v. Knox (1st Dist. 1975), 31 Ill. App.3d 816, 823, 334 N.E.2d 891, 897), and since increased needs of the children may be presumed from the facts that the children have grown older and the cost of living has risen (Addington v. Addington (1st Dist. 1977), 48 Ill. App.3d 859, 363 N.E.2d 151), the provision in the divorce decree allowing the amount of support to increase proportionately with the father's gross income was a reasonable attempt to ensure that the support of the children be continually interrelated with the ability of the father to contribute to their support. This must have also been what the defendant contemplated, for, even though he was present in person and by his attorney at the divorce proceeding, he did not object to the inclusion of this provision in the decree.

• 5 Although this provision is not as clearly defined as it could be (see Arthur v. Arthur (1956), 147 Cal.App.2d 252, 305 P.2d 171), the history of this case has lent definition to the provision. On February 28, 1975, the trial court modified the divorce decree by increasing support payments from $150 to $163 because, as the parties stipulated, the defendant's gross income increased in 1974 to be 108.7% of his 1973 gross income. From this earlier conduct of the parties, and the court, it appears the increase of the support payments was intended to be based on gross income of the defendant in the previous year. From this, we conclude that the trial court, erred when, in determining child support for 1976, it considered what the defendant had earned in 1976. Based upon the defendant's gross income for the calendar year 1975, the plaintiff's petition sought to increase the child-support payment to $180.46 biweekly, commencing on January 1, 1976. The reasonableness of this request is seen when it is compared to the $180 biweekly support which the court actually ordered. Considering the defendant's earnings for the calendar year 1976, as the trial court did, the application of those earnings to the formula would have resulted in biweekly support payments of $210. This $210 biweekly payment schedule would be applicable to the calendar year 1977 under the automatic increase formula, if the plaintiff requested the increase for 1977. As a result, we can only conclude that the trial court abused its discretion in modifying the divorce decree so as to unnecessarily eliminate the provision allowing for an increase in child support payments proportionate to an increase in the defendant's gross income.

• 6 The last issue raised by the plaintiff is whether the support payments for 1976 should be made retroactive to January 1, 1976. Although this divorce decree is not self-executing and requires enforcement by court order, there is nothing in the record which indicates that the support payments should not have been made effective as of January 1, 1976. Since the support payments are based on the defendant's gross income for the previous year, it is obvious that the gross income of the defendant is established by midnight on December 31 in the preceding year. Nevertheless, it is also obvious that the computation of the defendant's gross income is generally not completed, and the materials for computation are not available, until he files his income tax returns. We do not believe that the ability of the plaintiff to receive increased support for the children should be dependent upon when the defendant files for income tax purposes or whether he seeks an extension of time for filing.

Accordingly, the order of the Circuit Court of Knox County is vacated and the cause is remanded for a redetermination of child support payments not inconsistent with this opinion.

Vacated and remanded.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE ALLOY, dissenting:

I cannot agree with my colleagues that the trial court abused its discretion in not adhering rigidly to the provision of the original decree which measured increased support money solely by increase in the defendant's gross income and not in any manner by the increase in plaintiff's gross income.

On January 9, 1974, a decree of divorce as between the parties to this cause was entered by the Circuit Court of Knox ...


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