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Finley v. Finley

OPINION FILED JULY 13, 1979.

ETHEL FINLEY, PETITIONER-APPELLEE,

v.

BILL FINLEY, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Marion County; the Hon. BILL J. SLATER, Judge, presiding. MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 14, 1979.

Respondent appeals from an order of the circuit court of Marion County entering judgment against him for accrued child support in an action brought by his former wife, petitioner. He asserts three issues on appeal: (1) whether section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 510(c)) prohibits the entry of a judgment for delinquent child support accruing prior to the effective date of the Act where the cessation of payment was predicated upon the emancipation of the children; (2) whether such judgment is precluded by laches or equitable estoppel; and (3) whether the trial court abused its discretion in awarding interest on delinquent support.

The marriage of respondent and petitioner was terminated by a decree of divorce on October 4, 1965. Petitioner was granted custody of the four children: Billy Irvin, age 16; Glenda Darlene, age 12; Terry Lee, age 7, and Patty Jean, age 4. She also was to receive $30 per week child support from respondent. The manner and duration of payment was specified in the decree as follows:

"[T]he defendant shall pay to the Clerk of this Court who in turn shall pay the plaintiff herein for the use, support and maintenance of said minor children the sum of Thirty ($30.00) Dollars per week, said payments to start on Friday, October 8, 1965, and continue until further order of this court."

When the oldest son, Billy Irvin, entered the Army in 1966 respondent made a pro rata reduction of $7.50 in his child support payment. He continued to pay $22.50 per week to petitioner for the support of the three children still living with her. A second weekly reduction of $7.50 occurred two years later when Glenda Darlene got married, and a final $7.50 reduction was made in late 1975 when Terry Lee became 18. Respondent continues to pay $7.50 per week for the support of Patty Jean.

These reductions in child support were initiated in the absence of the authority of a court order.

Petitioner filed a petition on December 8, 1977, for child support arrearage. At the hearing on the petition respondent defended his payment practices by explaining that as a child left home petitioner was no longer entitled to receive support for that child. Thus, when Billy Irvin joined the Army, Glenda Darlene got married and Terry Lee left home by his 18th birthday, respondent lowered his weekly payment by $7.50 respectively. According to him, $7.50 represented the amount of his support obligation per child per week under the decree.

There was no dispute with respect to the departure of Billy Irvin and Glenda Darlene from home; however, petitioner contradicted respondent's testimony when she stated that Terry Lee was still living at home with her when respondent made his final support reduction.

Respondent testified further that, except for one instance, petitioner never made any demands or requests for past-due child support. The one instance was approximately a year before the commencement of this action when respondent was hospitalized for burn injuries. Although her request concerned a two-week period during respondent's confinement in which she received no payments, she never expressed any dissatisfaction with the payments themselves.

Petitioner denied this in her testimony. She stated that on one occasion prior to respondent's hospitalization she requested the support money that respondent withheld after the children left home.

In a judgment entered on April 20, 1978, the trial court found respondent in arrears for reducing the support payments without leave of court in violation of the divorce decree and ordered him to pay petitioner $8,593. This amount represented the total arrearage from respondent's first support reduction in 1966 up to the hearing date on the petition, or February 23, 1978. The court also assessed against him $2,120.78 in interest on the unpaid support.

Initially, respondent contends on appeal that by virtue of section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 510(c)) the trial court erroneously ordered him to pay child support arrearage where that arrearage consisted entirely of support money which accrued after the emancipation of three of the children. In support of this contention respondent argues that since the petition for arrearage was filed after October 1, 1977, this cause is controlled by the new Act in general (Ill. Rev. Stat. 1977, ch. 40, par. 801(a)) and section 510(c) in particular. Section 510(c) provides in part:

"(c) Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child * * *."

Respondent asserts that Billy Irvin, Glenda Darlene and Terry Lee became emancipated for purposes of section 510(c) the moment they permanently left home. Therefore, on the basis of section 510(c) respondent concludes that the ...


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