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In Re Marriage of Gentile

OPINION FILED MARCH 22, 1979.

IN RE MARRIAGE OF JOAN M. GENTILE ET AL. — (JOAN M. GENTILE, PETITIONER-APPELLANT,

v.

FRANK J. GENTILE, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Tazewell County; the Hon. ESPEY C. WILLIAMSON, Judge, presiding.

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

This appeal concerns a post-divorce decree proceeding between petitioner Joan M. Gentile, the wife, and the respondent husband, Frank J. Gentile. Following a hearing in the Circuit Court of Tazewell County on a rule to show cause, petitioner's petition to modify the divorce decree, and respondent's petition to modify the divorce decree and for a moratorium on child-support payments, the trial court entered orders adverse to the petitioner wife's demands and in favor of the respondent husband's demands, while awarding petitioner a judgment for child-support arrearage.

To fully understand the precise nature of the controversy before the trial court and now before this court on appeal a chronological narration of the significant events leading up to the divorce and subsequent thereto will be related.

The petitioner, Joan M. Gentile, filed a complaint for divorce in the Circuit Court of Tazewell County. The respondent, Frank J. Gentile, was personally served with a summons and a copy of the complaint while present in Tazewell County. He thereafter removed himself from the United States and has since resided in Spain. Several notices were subsequently sent to the respondent at an incomplete address in Spain, and the respondent claimed he received no further notice of the proceedings. Mr. Gentile failed to appear or present a defense and a default divorce decree was entered July 6, 1973. The decree provided for the child custody to be placed in the petitioner and for support of the children by the respondent and a detailed disposition of the property of both the petitioner and the respondent. Of importance to this appeal are the findings of fact of the trial court in the decree:

"11. That Defendant is an able-bodied man and is well able to furnish suitable and sufficient support for Plaintiff and the parties' minor children, counsel fees and costs; that the Defendant has not contributed towards the support of the Plaintiff and the parties' minor children, except as by an order assigning an interest in a second mortgage payment, said order being entered on June 23, 1972; that the Defendant has not paid to the Plaintiff the sum of $250.00 as attorneys fees and costs pendente lite as ordered by this Court on June 23, 1972.

12. That the Plaintiff by reason of the lack of financial resources and the failure of the Defendant to provide for her and the parties' minor children has been gainfully employed for more than one year last past and the employment income of the Plaintiff has been the substantial support of the Plaintiff and the parties' minor children; that the Plaintiff did not have steady employment for 13 years prior to 1972, devoting her time to her household duties and responsibilities as wife and mother.

27. That the Defendant, FRANK J. GENTILE, has shown himself to be unworthy of trust and further has wilfully refused to comply with the orders of this Court to pay temporary support for the parties' minor children."

The decree of divorce further provided for the respondent husband to pay child support for the three minor children in the amount of $100 per week. To secure the payment of child support and aid in enforcing said payments the trial court ordered Frank J. Gentile to assign his interest in a Florida land trust, hereinafter referred to as Plantation Trust No. 4, to the Herget National Bank of Pekin, Illinois, as trustee for a children's trust. The trial court also enjoined the respondent from assigning, transferring, conveying, disposing and destroying any real or personal property except in obedience of the decree of divorce. Within 30 days after the entry of the divorce decree the respondent appeared, through his attorney, and filed a motion to vacate the divorce decree. The motion urged that Joan Gentile had not established adequate residency in Tazewell County and therefore the trial court lacked jurisdiction. The motion to vacate was denied and the respondent husband did not appeal from the denial.

Thereafter the respondent did not make any of the required child support payments, with a resulting arrearage of $21,400.00 existing at the time of the hearing appealed from. The respondent also failed to comply with the transfer of his interest in Plantation Trust No. 4 as security for the child support. The petitioner wife filed a petition for rule to show cause why the respondent should not be held in contempt for failure to meet the child support payments and comply with the mandatory requirements of the property disposition aspects of the divorce decree in numerous respects. At the same hearing appealed from the petitioner also requested, in a petition to modify the divorce decree, for a continuation of the child-support payments for one of the children who had reached age 18, but was attending college, and a general increase in child-support payments. The respondent countered with his own petition to modify the divorce decree and for a moratorium on the child-support payments. Joan Gentile also sought a judgment for the accumulated child-support arrearage.

Following a hearing on the various matters before the trial court, the petitioner received her judgment for the $21,400 child support arrearage, but the trial court refused to hold the respondent in contempt of court, terminated the child-support payments for the respondent until such a time as he is demonstrated able to contribute financially to the support of his children, and released the lien of trust on the husband's interest in Plantation Trust No. 4. The petitioner, Joan M. Gentile, thereafter appealed from the trial court's ruling.

On review the petitioner has presented the following issues:

1. Whether the court erred in terminating the child support obligation of the respondent.

2. Whether the court erred in releasing to respondent all of his interest in a land trust when the original decree for divorce ordered respondent to assign said interest to a children's trust to secure and enforce payment of support.

• 1, 2 We believe that the facts of this case present an additional preliminary issue of whether the trial court has the power to impose a lien of trust upon the property of the non-custodial parent to secure and guarantee the enforcement of court-ordered child support. ...


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