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In Re Estate of Neirinck

OPINION FILED JULY 31, 1978.

IN RE ESTATE OF ALBERT J. NEIRINCK, DECEASED. — (SYLVIA MAIER, F/K/A SYLVIA NEIRINCK, PLAINTIFF-APPELLANT,

v.

JUDY C. FONSECA, EX'R OF THE WILL OF ALBERT J. NEIRINCK, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Rock Island County; the Hon. FREDERICK P. PATTON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Albert J. Neirinck, now deceased, and the plaintiff, Sylvia Maier, were married on March 23, 1946, and a son and daughter were born of that marriage. The parties were divorced on April 22, 1953, and Albert J. Neirinck was ordered to pay $20 per week for child support for both children. Subsequent to the divorce the plaintiff married John Maier.

Commencing on October 19, 1959, Lloyd A. Schwiebert, an attorney was instructed by the plaintiff to collect all moneys payable to her as child support. Schwiebert, as attorney for the plaintiff, collected the child-support payments, kept records as to payments received, payments due, and disbursed amounts collected to the plaintiff. The decree of divorce between the plaintiff and Albert J. Neirinck was never modified by order of court but attorney Schwiebert reduced the amount of child support to $10 per week for the period of June 10, 1960, through January 27, 1962, when the daughter was residing away from the plaintiff's home as the result of being placed in another home under court supervision. After the daughter was returned to the home of the plaintiff and until she was eighteen years of age the amount of child support determined by Schwiebert as due and owing was the sum of $20 per week. After the daughter attained the age of 18 years the records of attorney Schwiebert reflected that he determined that the sum of $10 per week was to be paid as child support for the son. At the age of 18 years the son entered military service and was deemed to be emancipated from the custody of his mother, the plaintiff. After Albert J. Nierinck departed this life on October 28, 1976, the plaintiff filed a claim against his estate for unpaid child support in the amount of $2,095.90 plus $966.69 interest and filed a complaint in the circuit court of Rock Island County in which she prayed that the decedent's estate be ordered to pay her this amount plus further accrued interest. The plaintiff subsequently filed an amended complaint in which she claimed unpaid child support due and owing her to be in the sum of $9,300.44 plus interest.

The records of attorney Schwiebert reflect that the last payment made by the decedent Neirinck occurred in January of 1969 and that a balance of $1,735.90 was due and owing. No demand from 1969 until his death was ever made by the plaintiff or her attorney upon Neirinck for the payment of the child support arrearages under the decree of divorce.

While this case was pending in the trial court the parties concerned entered into a stipulation as to facts. In the stipulation the plaintiff was referred to as Sylvia and the decedent as Albert. We believe that certain portions of the stipulation are pertinent to the determination of this appeal and should be set forth in their entirety. These provisions are as follows:

"10. There is no record that Albert maintained a separate set of records apart from and independent of the records maintained by Schwiebert. It is fair to presume that Albert probably relied upon the figures as Schwiebert from time to time told Albert about them.

11. With the possible exception of some hearings on rules to show cause Albert never engaged private and independent counsel to represent him regarding any arrearages due under the terms of the decree of divorce. Schwiebert does not recall that Albert ever retained independent counsel after 1961.

12. Sylvia and Albert relied upon the advice of Schwiebert as to all amounts of support due to her for the children under the terms of the decree. She did not instruct Schwiebert as to how much support was owing nor did she ever tender any corrections, modifications, or adjustments in the amount of support.

13. There is no evidence to support the proposition that Sylvia personally advised Albert that she would ever accept any sum other than what she thought was owing under the decree of divorce. She assumed that Schwiebert was maintaining an accurate record of all payments and all arrearages. Sylvia never objected to any of the amounts determined by Schwiebert to be due her from Albert.

14. There is no written agreement between Sylvia and Albert modifying the terms of the decree of divorce. Schwiebert never thought it was necessary to go to court to modify the decree nor did he ever advise either Albert or Sylvia that the decree should be modified to conform to the adjustments in child support payments made by him as hereinafter provided.

15. Neither Sylvia nor Albert nor any person on their behalf ever moved for the modification of the decree of divorce."

During the proceedings before the trial court and in this appeal it is the plaintiff's position that attorney Schwiebert made mistakes when he unilaterally reduced the child support payments on various occasions and that she is entitled to a greater sum than that reflected on the records of Schwiebert. The trial court disagreed with the plaintiff and held that the claim of the plaintiff should be barred insofar as it asks for any additional sums beyond the $1,735.90 shown due by the records of Schwiebert. The trial court further disallowed an award of interest upon the arrearage. The trial court based its decision upon the doctrine of equitable estoppel.

The first issue presented to us for determination is whether or not the trial court was correct in applying the doctrine of equitable estoppel to defeat the plaintiff's claim for a greater sum of past due child support.

• 1 It is well settled in this State that past due installments for child support are a vested right and the court is without authority to modify the amount due of such installments. (Strum v. Strum (1974), 22 Ill. App.3d 147, 317 N.E.2d 59; Stark v. Stark (1971), 131 Ill. App.2d 995, 269 N.E.2d 107.) The proper procedure to modify child support payments is to file a petition with the court praying for such modification. (Gregory v. Gregory (1964), 52 Ill. App.2d 262, 202 N.E.2d 139.) In the proper case, however, our reviewing courts> have indicated that they will give effect to an agreement by the parties to waive payments or accept a lesser amount or they will apply the doctrine of equitable estoppel where that doctrine is appropriate. ...


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