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Winter v. Winter

OPINION FILED JUNE 20, 1978.

NANCY WINTER, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

JOHN WINTER, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH E. WILSON, Judge, presiding.

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

Rehearing denied July 17, 1978.

This matter comes before the court from a post-decree proceeding to modify the child support provisions of a judgment for divorce entered between plaintiff, Nancy Winter, and defendant, John Winter. Defendant appeals from an order of the circuit court of Cook County denying his petition for a decrease in child support payments. Plaintiff has filed a cross-appeal from a similar order denying her cross-petition for an increase in such payments. The trial court also ordered that defendant pay plaintiff the sum of $1,000 as attorney's fees to defray the cost of legal expenses incurred by plaintiff in connection with the several post-decree proceedings but denied plaintiff's petition for attorney's fees resulting from her defense of the instant appeal. The parties also seek review of these orders.

The following issues are presented for our consideration: (1) whether the trial court's finding that insufficient evidence had been presented to warrant a modification of child support payments was contrary to the manifest weight of the evidence; and (2) whether the trial court properly exercised its discretion in ruling on plaintiff's petitions for award of attorney's fees.

A review of the record indicates that plaintiff and defendant were married on July 12, 1963, at Wilmette, Illinois. The couple lived together as husband and wife for approximately 10 years before plaintiff sued for divorce alleging that defendant had been guilty of mental cruelty. One child, six years of age at the time the complaint was filed, was born to the parties.

After various continuances, this cause was set for disposition on the contested trial call of May 31, 1974. Prior to this date the parties arrived at an oral agreement settling and disposing of the alimony and property rights stemming from the marital relationship. A prove-up hearing ensued during the course of which testimony was elicited from both plaintiff and defendant.

A judgment for divorce was entered on June 10, 1974. In accord with the terms of the oral agreement, the decree provided, inter alia:

"B. The Defendant will pay to Plaintiff, as and for support of their minor child, the sum of $550.00 per month, in the manner set forth in Paragraph D herein, in addition to paying for the child's extraordinary medical, dental and related expenses; the aforesaid being based upon Defendant's stated gross income of $1,850.00 per month.

D. Defendant will pay the aforementioned child support to Plaintiff as follows:

(1) $250.00 directly to plaintiff on the 15th day of each month, and

(2) Paying the balance of $300.00 directly to the mortgagee on their residence to include the payment of their annual real estate taxes, which said defendant receiving the income tax benefits therefrom.

F. The aforesaid marital residence, remaining in the parties' joint names, will be sold upon the first of the following to occur:

(1) The parties' child reaching his majority or otherwise being emancipated.

(2) The plaintiff remarrying or having a male individual living with her who ...


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