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Cooper v. Cooper

OPINION FILED APRIL 18, 1978.

PHYLLIS L. COOPER, PLAINTIFF-APPELLEE,

v.

LEONARD E. COOPER, DEFENDANT-APPELLANT.



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

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant, Leonard E. Cooper, appeals from two orders entered by the circuit court of Cook County. By the first order, the court sustained a motion by plaintiff, Phyllis L. Cooper, to strike defendant's petition to terminate child support and for other relief, found defendant in arrears in the amount of $1,400 for child support, and ordered defendant to pay plaintiff the arrearage forthwith. By the second order, the court found defendant in contempt of court for his wilful refusal to obey the first order in regard to the payment of the arrearage. The court imposed a fine of $1,000 as a sanction for defendant's contempt of court. On appeal, defendant contends: (1) that the court erred in striking his petition to modify; and (2) that the court erred in holding him in contempt.

Defendant filed a lengthy petition to modify the divorce decree, seeking several forms of relief. In order to provide a background to our opinion, it is necessary to summarize the allegations in the petition. Defendant requested that child support be terminated; that he be relieved of any obligation for the college education of his two minor children, including payment of support while the children attended college; and that he be relieved of the obligation of carrying several forms of insurance. Further, defendant sought an order that required plaintiff to repay defendant the amount of money that he would have been relieved of paying had the children stayed with him during summer visitation. If the court denied his request for relief of the total obligation for the children's college education, defendant then asked for a modification of his obligation due to the children's ability to contribute from funds they will receive upon reaching majority. Lastly, defendant asked for an award of attorney's fees and any other equitable relief found appropriate.

In support of the relief sought, defendant first alleged the existence of the parties' divorce decree and the numerous provisions contained therein. The parties have two children: Lloyd, born to the parties on March 9, 1960, and James, an adopted son, born on October 12, 1959. In part the divorce decree and property settlement agreement provided for plaintiff's custody of the children subject to defendant's visitation rights, defendant's payment of $500 per month child support, defendant's continued payment of support until each child completed college or otherwise became emancipated, defendant's payment of 50% of the child support while also assuming the children's living expenses at school, and defendant's obligation to continue certain insurance policies.

Besides the divorce decree, defendant also alleged the multitude of post-decretal petitions he filed in order to modify the visitation provisions. The petitions had been motivated by defendant's belief that plaintiff had purposely poisoned the children's minds so that they would not want to visit their father. Defendant also appended another petition for modification filed on July 25, 1972, and the order which resulted. The appended petition had sought a change in custody, an order that plaintiff be commanded to submit to psychiatric evaluation, the production of certain documents, and any other equitable relief. That earlier petition both catalogued numerous examples where plaintiff engaged in "psychological warfare" against defendant and set forth other, even earlier petitions whereby the parties had sought changes in the visitation provisions.

In addition, defendant's petition for termination also included the appended order entered on March 27, 1973, as a result of his petition filed on July 25, 1972. In part, the court made adjustments to certain bills which plaintiff claimed that defendant had not paid. The court found that defendant had not been consulted about either orthodonture treatment for the children or tutoring services for them. The amount of child support was increased to $700 per month, but that sum would again be adjusted should the children not be placed in therapy with a child psychiatrist as provided in the order. Although the question of a change in custody was continued generally, the court set up a visitation schedule and ordered that such visitation should be voluntary on the part of the children, subject to review after therapy had commenced. Plaintiff was also ordered to encourage visitation and enjoined from making disparaging remarks about defendant to the children. She was also enjoined from interfering with defendant's visitation with the children. Defendant was permitted to select the psychiatrist for the children, but the doctor was to be located near plaintiff's home.

After setting forth the contents of the earlier petition and the order, defendant's present petition for modification resumed with further allegations. Defendant alleged that he selected a Dr. Lifson as the children's psychiatrist, but that plaintiff refused to cooperate with the doctor in order to set up appointments. A letter from Dr. Lifson was also appended to defendant's petition and the letter corroborated defendant's allegation. Although defendant then filed a rule to show cause against plaintiff, she eventually cooperated with the arrangement of appointments. Dr. Lifson determined that only one of the children needed therapy, but plaintiff refused to submit the child to the needed therapy. Defendant also alleged that the last time he saw his sons was in February of 1973 at a court hearing; and that on Dr. Lifson's advice he has done nothing further, hoping that the children would gravitate toward him in the future. This never happened. Although defendant had written to the children, they never responded by way of either a letter or a phone call.

After this long recital of the history of the case, defendant then moved the court to relieve him of the obligation of child support. He emphasized that plaintiff's wealth would insure that the children's material needs would be met. Moreover, defendant stated in his petition that he had stopped making support payments. Instead, he created a bank account into which he deposited the monthly payments. Defendant also alleged that he does not now seek visitation with his sons. He has since remarried and the children were disruptive forces in the household when they did visit.

Plaintiff filed a motion to strike defendant's all-inclusive petition, alleging that defendant's petition stated no evidence upon which relief could be granted. She alleged that defendant's petition failed to set forth any evidence showing a change of circumstance since the order of March 27, 1973; and that, therefore, there was no basis upon which the court could modify the divorce decree or the earlier order. Even if all of the evidence alleged in defendant's petition were taken as true, plaintiff asserted that the petition set forth no evidence justifying the requested relief. She stated that nonvisitation is not a ground for terminating child support; and that only the children's emancipation or adoption could alter defendant's continuing obligation to support them. Plaintiff's motion noted that defendant did not seek visitation, but instead sought the termination of child support due to his inability to obtain visitation. Thereupon, plaintiff prayed that the petition be stricken, and that defendant be directed to pay child support, rather than depositing the sums in a bank account.

After a hearing held on September 30, 1976, the court entered an order sustaining plaintiff's motion to strike defendant's petition. The court also found defendant $1,400 in arrears for child support, ordered him to pay the sum immediately, and continued all matters still pending to October 5, 1976. Following a second hearing, the court entered another order on October 6, 1976, holding defendant in contempt of court for his wilful refusal to obey the previous order regarding payment of arrearages. As a sanction, defendant was ordered to pay a $1,000 fine. This appeal followed.

I.

A.

Although defendant maintains that the cause must be reversed because the court erred in striking his petition, in essence defendant is seeking a hearing on the merits of his petition. The question then becomes whether defendant has alleged sufficient facts to entitle him to overcome the motion to strike. We note that the earlier petition for modification appended to the current petition alleged a multitude of facts purporting to show that plaintiff's course of conduct was calculated to destroy, and did in fact destroy, the father-son relationship. As plaintiff chose to file a motion to strike, rather than an answer, defendant maintains that plaintiff has admitted those underlying facts. Plaintiff argues that such facts were not admitted because they were not well pleaded; and that she moved to strike defendant's entire pleading because it was substantially insufficient in law (Ill. Rev. Stat. 1975, ch. 110, par. 45).

She argues that the facts alleged in the appended petition were not admitted because (1) they had previously been ruled upon by the court; (2) they were res judicata to the issues raised by the current petition; and (3) they were in direct opposition to the facts alleged in the current petition. To support her contention that the facts had been ruled upon by the court, plaintiff points to a provision in the order of March 27, 1973, which "continued generally" defendant's petition for a ...


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