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Tilmon v. Tilmon

OPINION FILED JULY 2, 1979.

JAMES TILMON, PLAINTIFF-RESPONDENT-COUNTERPETITIONER-APPELLANT,

v.

LOUISE IRENE TILMON, DEFENDANT-PETITIONER-COUNTERRESPONDENT-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. ROBERT McQUEEN, Judge, presiding. MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the order of the trial court in a post-decree proceeding in which the court (1) held James Tilmon in contempt of court and fined him $1,000 for failure to comply with the court's previous decree regarding alimony payments; (2) denied James Tilmon's cross-petition for child support from his ex-wife, Louise, and (3) assessed the wife's attorney fees against Tilmon in connection with the post-decree hearing.

The Tilmons were married in 1959 and divorced in 1975 on the ground of mental cruelty. They have three children who, at the time of the hearing, were 18, 16 and 15. The divorce decree awarded custody of the two younger children to Louise and provided she was to receive $1,000 per month for 10 years as alimony in gross and $250 per month for the support of each child, as well as the benefit of certain insurance policies.

Tilmon was remiss in the payment of the decreed alimony from time to time and in September 1975, after a rule to show cause was issued against him, the court, while not finding Tilmon in contempt of court, entered an order providing that he comply with the letter of the decree. In January of 1976, Tilmon again being late in making alimony payments, another petition for a rule to show cause was filed by Louise Tilmon, as the result of which the court entered an order which in part provided that Tilmon was to make all future payments of alimony by mail postmarked no later than the fifth day of each month.

In April of 1976, Tilmon petitioned for a change of custody of the two younger children from Louise to him, which was eventually granted in October of 1976, and child support payments to Louise were terminated at that time.

• 1 On June 27, 1977, Louise filed another petition for a rule to show cause, alleging that Tilmon had failed to make the June alimony payment by June 5, as required by the decree. It appears from the testimony adduced at the hearing on the rule to show cause that Tilmon had requested that Louise furnish him the birth certificates of the two younger children, which she had failed to do, and he had informed her that he would, therefore, not make the June alimony payment. This does not appear to be a valid reason to withhold or delay payment, inasmuch as birth certificates are public documents, just as available to James Tilmon as to his divorced wife. The June payment was, in fact, made on June 29, after the petition for rule to show cause had been filed. Louise did not withdraw her petition after the payment was made and a hearing thereon was set for August 18, 1977. On July 22, respondent Tilmon filed an answer and a cross-petition in which he sought child support from petitioner, Louise. Thereafter, the petitioner amended the petition for rule to show cause, alleging that payments provided for in the decree had not been timely made for the months of February through May 1977, and the June payment was not made until the rule to show cause had been filed.

At the hearing, which was actually not held until April 1978, Louise produced evidence of late payments in several months previous to June 1977, beginning, in fact, in January of 1976. Since the rule to show cause had not specified such months previous to February 1977, the trial court sustained Tilmon's objection to the inclusion of such checks as not having been pleaded in the petition. In that hearing, Tilmon attempted to introduce matters in mitigation of the contempt arising out of the late payments of February through May 1977. However, petitioner's counsel objected, saying that such matters had not been set up in the respondent's answer and he should be bound by the pleadings in that regard as petitioner was bound by lack of pleading and denied the opportunity to bring in the late checks, prior to February 1977, into evidence. The trial court sustained petitioner's objection in this regard, which is assigned as error by the respondent. The trial court found the respondent Tilmon in contempt of court and fined him $1,000.

The main question in this case, however, is the court's ruling on the respondent's (Tilmon's) cross-petition for child support from the petitioner which was denied, the court finding "a lack of need on the part of James Tilmon and lack of ability on the part of Louise Irene Tilmon to contribute to their support."

In support of his cross-petition for child support from Louise, respondent invokes section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 505), reading as follows:

"In a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage, or a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct, after considering all relevant factors, including:

(1) the financial resources of the child;

(2) the financial resources and needs of the custodial parent;

(3) the standard of living the child would have enjoyed had the marriage not been dissolved;

(4) the physical and emotional condition of the child, and his ...


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