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Dunn v. Dunn

OPINION FILED MAY 1, 1979.

JACQUELINE A. DUNN, PLAINTIFF-APPELLEE,

v.

MELVIN E. DUNN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. FLECK, JR., Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

On March 22, 1977, pursuant to a petition filed by plaintiff, the trial court modified a divorce decree entered on August 16, 1972, by ordering an increase of $25 per month in alimony to plaintiff. On April 15, 1977, defendant filed a notice of appeal from the March 22, 1977, order. Subsequently, on August 9, 1977, the court entered an order modifying the order of March 22, 1977. Defendant appeals from both the March 22 and August 9, 1977, orders. *fn1

The issues for consideration on review are: (1) whether the trial court's grant of an increase in alimony was against the manifest weight of the evidence; and (2) whether the trial court had authority to modify its March 22, 1977, order after a notice of appeal from such order had been filed.

We reverse.

On August 16, 1972, a judgment of divorce was entered terminating the marriage of plaintiff Jacqueline A. Dunn and defendant Melvin E. Dunn. Each party was awarded custody of one of the parties' two minor children. The decree provided that defendant pay $300 per month as combined alimony and child support.

The decree of divorce was modified by agreement of both parties on November 26, 1975, whereby defendant assumed custody of both minor children and agreed to pay plaintiff alimony of $400 per month for 12 months and $300 per month thereafter.

On December 27, 1976, plaintiff filed a petition for an increase in alimony, alleging that a material change in circumstances of the parties had occurred. Plaintiff contended that her income had decreased substantially due to the expiration of her social security disability payments, and that defendant's income had increased substantially.

At a hearing held on March 15, 1977, the court found that the cost of living provided no basis for modification. The court also stated:

"Neither does the ground regarding the income of Respondent indicate a basis for modification or material change, a showing that he might have had a greater ability to pay a greater sum.

The only material change that the court could take into consideration at this time would be the termination of the social security payments."

The court noted that plaintiff's income from employment had increased $150 per month since the November 1975 order. The court then stated:

"According to the court's rule that there is no material change in circumstances, that the ability to pay of the Respondent has remained unchanged, and that the demands, even viewing the expenses of both, increased according to both parties. Considering the fact that social security has diminished, the Court will modify it to a limited expense of twenty-five dollars per month."

In its order of March 22, 1977, the court found "that plaintiff [had] failed to show a material change in circumstances since the entry of the order" of November 26, 1975, but ordered defendant to pay $325 per month as alimony. On April 15, 1977, defendant filed a notice of appeal from the March 22 order.

On August 9, 1977, while the appeal of the March 22, 1977, order was still pending, the court changed the March 22 order by specifically adding the following: (1) "that the only material change it could consider would be the termination of plaintiff's social security benefits," and (2) that there was no substantial change in defendant's income since the ...


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