Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jozwick v. Jozwick

OPINION FILED MAY 14, 1979.

THERESA JOZWICK, N/K/A THERESA CLELLAND, PLAINTIFF-APPELLANT,

v.

WALTER JOZWICK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES L. GRUPP, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

The plaintiff-petitioner appeals from an order of the circuit court of Cook County denying her petition for an arrearage of child support payments. She contends that: (1) child support payments cannot be automatically reduced pro-rata as each child reaches the age of majority; and (2) her suit for past due installments of child support is not barred by equitable estoppel and laches. We reverse and remand.

The following facts are pertinent to the disposition of this appeal.

The plaintiff, Theresa Jozwick, and the defendant, Walter Jozwick, were married on January 31, 1952, and thereafter had two children, Deborah and Jerri Ann. On June 18, 1962 a divorce decree was entered which directed, in part, "that the defendant, Walter Jozwick, pay to the plaintiff, Theresa Jozwick, the sum of forty-five ($45.00) dollars per week, which represents fifteen ($15.00) dollars per week for the support of the minor child, Deborah, and fifteen ($15.00) dollars per week for the support of the minor child, Jerri Ann, and fifteen ($15.00) dollars per week for alimony."

On June 17, 1963, an order modifying the June 18, 1962, decree was entered. It ordered that effective June 21, 1963, the defendant pay to the plaintiff $20 per week for each child of the parties and $15 for alimony.

On August 18, 1966, the plaintiff filed a petition in the trial court for, among other things, an increase in support due to a change of circumstances and for an arrearage of child support payments in the amount of $105. In his answer the defendant requested that the child-support payments be reduced due to a change of circumstances and that the alimony payments be stricken from the support order. On September 27, 1966, at the hearing on the petition and the answer the court ordered "that the defendant pay to the plaintiff the sum of $40.00 per week, each and every week as and for child support for two children," that the alimony be abated and that the defendant pay to the plaintiff $180 for an arrearage of child support payments in weekly installments of $5.

Pursuant to the September 27, 1966, order the defendant made weekly payments of $40 for child support. On April 21, 1972, when the defendant's oldest child reached the age of majority, the defendant unilaterally reduced the child support payments to $20 per week.

On April 12, 1977, the plaintiff filed another petition in the trial court alleging that although the defendant was required to pay to the plaintiff $40 per week for child support for two children pursuant to the September 27, 1966, order, he willfully failed and refused to comply with said order in that commencing on April 21, 1972, he reduced the payments from $40 per week to $20 per week. The plaintiff asserted that the defendant should be required to pay her the sum of $5,200 for the arrearage of child support.

In his answer the defendant stated that he had fully complied with the order and that he had properly reduced the total support payments from $40 per week to $20 per week because the oldest child had reached the age of majority. The answer further stated that at all times the parties understood that the $40 payments were in fact payments of $20 per week for each child. The defendant also argued that the plaintiff had accepted $20 per week for over five years and, therefore, she should be estopped from alleging an arrearage of child-support payments at this time.

The parties agreed that the youngest child, Jerri Ann, reached the age of majority on September 16, 1977. It is also undisputed that the defendant had been employed at Clark Equipment Co. for approximately 19 years when the present action was instituted. At the September 27, 1966, hearing the defendant admitted that he had received periodic salary increases over the years. His present salary was approximately $18,000 per year. Finally, the record reveals that from September 27, 1966, until July 21, 1977, the plaintiff's and the defendant's only contact or communication with each other was at the wedding of their oldest child. At the wedding neither party discussed the issue of an arrearage of child-support payments.

Following a full hearing on July 21, 1977, the trial court found that the parties contemplated and understood that the order of September 27, 1966, provided for child-support payments of $20 per week per child. The court further found that the plaintiff was estopped from asserting an arrearage on the September 27, 1966, order, that she was guilty of laches, that to find an arrearage would do irreparable harm and damage to the defendant, and that the defendant was current and not in arrears in his child-support payments. Accordingly, the court entered an order on September 7, 1977, dismissing the plaintiff's April 12, 1977, petition and denying all of the relief requested.

• 1, 2 We cannot agree with the trial court's finding that the defendant was not in arrears in his child-support payments. This court has generally recognized that a party may not unilaterally terminate child-support payments when there is a change in circumstances. (Doty v. Doty (1977), 45 Ill. App.3d 213, 359 N.E.2d 784; Voss v. Voss (1974), 23 Ill. App.3d 312, 319 N.E.2d 72; Trimble v. Trimble (1958), 16 Ill. App.2d 408, 148 N.E.2d 612; Strum v. Strum (1974), 22 Ill. App.3d 147, 317 N.E.2d 59.) The modification of child-support payments is a judicial function which is to be administered solely by the court and at its discretion. (Baker v. Baker (1977), 53 Ill. App.3d 186, 368 N.E.2d 379.) It is well established that past due installments for child support are the vested rights of the designated recipients and the court lacks the authority to modify those amounts which have already accrued. (Lewis v. Lewis (1977), 48 Ill. App.3d 281, 363 N.E.2d 106; Doty; Ellingwood v. Ellingwood (1975), 25 Ill. App.3d 587, 323 N.E.2d 571; Strum.) Therefore, any modification in child-support payments will only act prospectively. Strum; Chalmers v. Chalmers (1961), 31 Ill. App.2d 1, 175 N.E.2d 613.

Recent Illinois decisions have held that amounts due for child support cannot be reduced pro rata automatically as each child reaches majority. (Doty; Storm v. Storm (1973), 9 Ill. App.3d 1071, 293 N.E.2d 633. See also Baker.) A party directed to pay child support must obtain a court order to modify such payments. (Voss.) "[I]t is not for him to determine when and for what reasons he shall stop payments." (Doty v. Doty (1977), 45 Ill. App.3d 213, 215, 359 N.E.2d 784; accord, Voss; Trimble.) In the case at bar the proper procedure for the defendant to have followed would have been to have filed a petition with the court praying for a modification. In re Estate of Neirinck (1978), 62 Ill. App.3d 189, 379 N.E.2d 356; Strum; Gregory v. Gregory (1964), 52 Ill. App.2d 262, 202 N.E.2d 139.

• 3 The defendant requests that this court overrule its decisions in Doty, Voss and Baker. However, the defendant has failed to present any facts or grounds which would compel us to reverse our decisions in these cases. We support the rationale presented in these recent decisions and conclude, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.