APPEAL from the Circuit Court of Cook County; the Hon.
EDWARD J. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Plaintiff initially brought this action seeking the modification of a separate maintenance decree, but the proceedings were expanded to include petitions filed by both plaintiff and defendant in which each charged the other with violating the provisions of a decree. After a hearing, the trial court modified the decree and found plaintiff in arrears in child-support payments. From this judgment he appeals, contending that the trial court erred in failing to hear evidence from him, in failing to order the children to visit him, and in ordering support payments in excess of his ability to pay.
The decree of separate maintenance gave defendant sole custody of the parties' three children and ordered plaintiff to pay the sum of $466.67 per month as and for child support and the sum of $233.33 per month in alimony. This decree was later modified to require child-support payments of $75 per week if plaintiff earned less than $300 per week, but the payments would increase to $100 per week if his weekly earnings were more than $300. The decree was then again modified directing him to pay 40% of his net pay as child support, and a finding was entered that he was then in arrears in the sum of $11,754.60. The proceedings in question resulted in an arrearage finding of $13,250 and an order that plaintiff make a weekly payment of 40% of his net income per week, with a minimum of $75 per week, as and for child support.
At trial, plaintiff called no witnesses; however, he and his present wife were called by defendant under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 60.) While their testimony was in agreement that plaintiff's gross earnings were $200 per week, there was substantial disagreement as to his weekly net income. His wife testified that his net earnings varied between $100 and $150 per week, but when plaintiff was questioned concerning such income his attorney interjected that payroll stubs had been produced which indicated a net income of $170 per week. Plaintiff and his wife further testified that it was his practice to deposit amounts which would fulfill his child-support obligations in a separate bank account and then commingle the remainder of his salary with that of his wife's in a second account from which their living expenses were paid.
Defendant testified that she was presently unemployed and that her only separate resources had been loans from her brother and unemployment compensation. Should she remain unemployed, she intended to seek public assistance.
Although plaintiff alleged that the children had been forbidden by defendant from speaking to him and that mail and gifts addressed to them by him had been returned by defendant without the knowledge of the children, no such evidence was produced at trial. When plaintiff requested that the children be ordered to visit with him during the appointed visitation periods, the court called the children and counsel into chambers for questioning. Thereafter, it refused to render such an order, stating:
"For the record, I will state that I had the two younger girls, Lisa, age twelve and Patty, age fourteen, separately in my chambers in the presence of the two attorneys. I asked them with regard to the question of visitation with the father and the extent of their sentiment for or against the father and so on in the presence of the attorneys and they told me that the father in the past neglected them [sic] to show them any interest, but on the contrary displayed interest in some other member, not of this family that they don't care to see him or to visit with him.
I am not calling the oldest girl, because she is seventeen and in a few months, she will be an adult. Unless Counsel wishes to call her in chambers, you are free to do so, but based on what I heard in response to my questions and in response to the attorneys' questions to these two girls, I have to conclude that the scars that they apparently suffered, rightly or wrongly, I don't know, would make it very difficult for me to say to them that I would put you through some form of command."
Plaintiff first contends that "the trial court erred in failing to hear evidence from plaintiff." The entirety of his argument on this point is stated in his brief in two sentences, as follows: "Due process in Illinois includes the right to call witnesses in one's behalf. Refusal of this right has been held to be reversible error." In support, he cites only Marr v. Marr (1963), 43 Ill. App.2d 25, 192 N.E.2d 559.
• 1 The general rule, as stated in Marr, is that a litigant's right to produce witnesses on his behalf is basic to our system of justice and a court should be most circumspect in placing any restriction on the exercise of this right where the testimony sought to be produced concerns a controlling or controverted fact. A trial court, however, is not required to demand the production of evidence by a litigant who, although present and represented by counsel, does not offer such evidence. Kinzora v. Kinzora (1976), 37 Ill. App.3d 290, 345 N.E.2d 499.
• 2 Here, the only testimony produced was that of defendant and that of plaintiff and his present wife, who were called by defendant as section 60 witnesses. Plaintiff did not choose to exercise his right to call further witnesses, and neither he nor his wife again testified as they had the right to do. Not only does the record contain no order of the trial court restricting these rights; but, also, there is no indication in the record nor any contention by plaintiff here that he even attempted to call any other witnesses. Therefore, we reject the first contention of plaintiff.
• 3, 4 Defendant also argues that the trial court's examination of the children was improper. In a divorce proceeding, it has been held to be reversible error for the trial court to examine the parties' children in chambers without the attendance of counsel where their testimony concerns the contested grounds for divorce. (Albert v. Albert (1950), 340 Ill. App. 582, 92 N.E.2d 491.)
"However, since Oakes v. Oakes, 45 Ill. App.2d 387, 195 N.E.2d 840, the rule has been that the welfare of the child is paramount in custody decisions and, in that regard, interviews with the children by the court are permissible. [Citation.] Thus, the rule presently appears to be that a private interview with children involved in a divorce proceeding is permitted to assist the court in determining custody but `[t]o protect the right to appeal, the court upon motion should state for the record, if that becomes necessary, the ...