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Scott v. Scott





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.


Rehearing denied May 21, 1979.

Dorothy Scott Humphrey (petitioner) filed a petition against William J. Scott (respondent) to modify a judgment for dissolution of marriage entered September 8, 1970. Petitioner requested an increase in child support and other post-decretal relief. After considerable litigation, the trial court entered orders for an increase in child support payments of $75.00 per child per month; denial of petitioner's attorney's fees; refusal to entertain petitioner's post-trial petition for rehearing; and amplification of the trial court's order of September 2, 1977, pertaining to the increase of child support.

On appeal, petitioner contends that the trial court erred in (1) finding that it lacked jurisdiction to entertain petitioner's post-trial petition for rehearing; (2) ordering a modification of the marital settlement agreement; (3) granting an insufficient increase in child support; (4) not ordering that the increase in child support be retroactive; (5) refusing to grant a hearing on petitioner's petition for attorney's fees and other relief and on respondent's motion for sanctions; and (6) denying petitioner attorney's fees and costs.

A property settlement agreement executed by the parties on September 3, 1970, was incorporated into the judgment for divorce. The agreement provided, among other things, that respondent would pay $1000 "per month in solido" to petitioner with the condition that if she remarried the payments would be reduced to $250 for each child as support only. Petitioner and respondent have two children, who in 1970 were 10 and 7 years old.

In her petition to modify the judgment, filed February 6, 1976, petitioner requested that the court order respondent to pay such additional support as the court deemed just. Respondent filed his answer to the petition. On July 19 and 20, 1977, the trial court conducted a hearing during which both petitioner and respondent testified concerning their then current economic status.

At the time of dissolution of the marriage, respondent, as the Attorney General for the State of Illinois, received a salary income of $31,800. His adjusted gross income was $33,122 and his net income after taxes was $27,386.66. His combined alimony and child support payments totaled $12,000 per year. These payments were reduced to $6000 per year upon the remarriage of petitioner on August 2, 1975. Respondent remarried in 1974. In 1976 respondent received salary of $42,500 as Attorney General. His adjusted gross income was $45,845 and his net income after taxes was $33,221.

Respondent maintained two residences. One in Springfield was paid for by the State of Illinois. He paid rent of $877 per month for the other in Chicago. Respondent maintained $52,000 of life insurance with the children as beneficiaries as required by the original judgment. Respondent's income-producing assets included: a certificate of bank deposit for $1500; a corporate bond for $5000; United States government securities of $15,000 and a loan to his present wife of $7000. Respondent also had $38,000 in the mandatory State Pension Fund which produced no income.

Respondent spent the following each month for personal living expenses for himself and his present wife: $877 rent; $88 for cleaning and laundry; $45 for telephone; and $89 for electricity. After deductions for withholding and child support, respondent stated that he had a net of $1.54 per month. On July 15, 1974, respondent had investments in savings of $59,500 and on July 19, 1977, the amount had diminished to $28,500.

Petitioner testified that in 1970 she was employed as the manager of Holiday Travel House, Inc., and received a salary of $7200 per year. In 1976 her gross income from this source was $8720.40. She became the sole shareholder of that corporation in 1974 when respondent remarried. In addition, in 1976, petitioner received $5400.60 from interest and $302.40 from dividend payments on stock.

Petitioner further testified that the marital residence had been awarded to her by the judgment. She sold the property and used the proceeds to purchase a condominium. She and the children lived there until she remarried in 1975. She then sold the condominium and invested the proceeds in savings accounts. The judgment also awarded petitioner a $10,000 certificate of deposit and 36 shares of stock valued at $75 per share.

At the time of the hearing, petitioner had $33,340.37 in a savings account, four $10,000 certificates of deposit, and another savings account that earned $375.38 in interest in 1976.

Petitioner further testified that in accordance with her present standard of living approximately $800 per month is expended for the benefit of each child. This figure was arrived at by estimating the total expenses of the family and dividing by four. For example, petitioner estimated that the apartment in which her family presently lives would rent for $650 per month, although she does not actually pay rent. Her present husband owns the three-flat building in which she and the children live. She divided $650 into four parts to obtain a cost of housing of $163 per month per child. Utilities, cleaning supplies and the cost of using the automobile were similarly computed. Petitioner also included the cost of replacing dishwashers and washing machines at $600 per year. Using that figure, she estimated that the replacement cost was $13 per month for each child. Petitioner further estimated that it would cost about $900 to take a 2-week vacation in Florida similar to the vacations that the children took with petitioner and respondent during their marriage. The standard of living to which the children had become accustomed before dissolution of the marriage is approximately equivalent to what they presently enjoy.

On September 2, 1977, the trial court filed its memorandum opinion and entered an order for an increase in child support of $75 per month per child and for each party to pay his own attorney's fees. On September 21, 1977, respondent filed a motion to amplify the above order. On September 30, 1977, a petition for rehearing and other relief was filed by petitioner. She requested further hearings with regard to an additional increase in child support and that respondent be required to pay petitioner's attorney's fees. On October 3, 1977, before the petition for rehearing was heard, petitioner filed a notice of appeal praying that the order of September 2, 1977, be reversed "insofar as it denies an increase of child support in excess of $75.00 per month per child, denies retroactivity of any increase in child support and denies attorney's fees and costs incurred on behalf of Plaintiff-Appellant."

On October 12, 1977, the trial court entered its order pertaining to respondent's motion to amplify. This order incorporated therein the previous order of September 2, 1977, but augmented it in accordance with the property settlement agreement.

On October 14, 1977, the respondent filed a motion to strike and dismiss petitioner's petition for a rehearing and for imposition of sanctions on petitioner and her attorney and a supplemental motion for issuance of a rule to show cause and for ...

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