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Huckaby v. Huckaby






Rehearing denied September 5, 1979.

In determining this appeal we are to consider the effect of an order of court, entered by agreement of the parties, absolving the father of minor children from liability for their support upon the failure of the mother to afford the father court ordered visitation privileges.

The parties were married on November 29, 1965, and, after having two children, divorced on March 16, 1973. The decree for divorce awarded the mother custody of the children, granted the father reasonable rights of visitation and ordered him to pay child support in the amount of $15 per child per week.

Installments of child support subsequently went unpaid because the father was injured and unable to work. After the filing of petitions by both parties, and the entry of interim orders thereon, the court entered an order upon an agreement of the parties on September 11, 1974, which gave the mother the right to remove the children from Illinois to California. The father was to have two weeks of visitation during the summer months and from Christmas Day to January 1, the cost of transporting the children for visitation to be shared equally. The agreement and order further provided that because of the disability of the father the child support would be allowed to accumulate until the father began to receive disability checks. Upon that event, support payments were to resume at $30 per week until the father resumed employment whereupon the payments were to be $30 per week plus $10 for the arrearage. Finally, when the father's Missouri lawsuit was settled, the arrearage was to be paid in full.

Matters apparently did not work out as contemplated in the order of September 11, 1974, each of the parties complaining of the lack of good faith and failure of performance by the other. Negotiations resulted in a written stipulation for an order which was entered by the court upon the stipulation on February 28, 1975. It provided for four weeks summer visitation of the children with the father upon at least 30 days written notice to the mother or her attorney. The second paragraph of this order stated:

"2. In the event the plaintiff fails to allow the defendant the said summer visitation for the year 1975 or any other visitation provided for in the Decree as previously amended, the obligation on the part of the defendant to provide the child support provided for in said Decree shall cease and determine until further Order of Court."

Again, events did not transpire as contemplated in the order with each of the parties blaming the other. However, we would observe that a fair reading of the record discloses that in April 1975 the father made a proper request for visitation in July and August 1975. Just a few days before the visitation was to begin the mother sent the children to Japan for an extended visit with her parents. She later rationalized that the father could have had visitation after the children returned but this proved to be not possible because of conflicts of the father. For this disregard of the mother she was later found to be in violation of the court's order of February 28, 1975, as we will note.

No further visitation was had following the summer of 1975, the mother stating that she tried in vain to contact the father in order to get him to receive visitation and pay support, and the father saying he was unable to find the mother in California in order to exercise his rights of visitation. No child support was paid.

On February 23, 1978, the mother filed a petition for citation for contempt, judgment for arrearages and attorney fees. Evidence established an arrearage in child support payments in the amount of $5,550. Following the hearing the trial court entered an order in which it found that the mother failed to allow visitation by the father in the summer of 1975 and therefore had violated the court order of February 28, 1975; pursuant to the order of February 28, 1975, there was no arrearage due and the father was not in contempt of court; a reasonable amount of child support would be $32.50 per week per child and $200 was a reasonable attorney fee for the mother. The court made further findings respecting future visitation rights and also found it to be in the best interests of the children, and in order to effect the father's visitation rights, that the court adopt paragraph 2 of the order of February 28, 1975. Following these findings by the court, it was ordered that the father was thereafter to pay child support of $32.50 per week per child, that specified visitation be granted the father and that the mother was awarded $200 attorney fees. Paragraphs 5 and 6 of this order provided:

"5. That if said visitation is not made for reason other than respondent's failure to supply one half of the air fare, respondent's refusal to accept the minor children, or illness of the minor children which prevents their travelling and is attested to by a letter from a licensed medical physician, the above ordered support payments shall cease until further order of Court or subsequent completed visitation.

6. That the terms and conditions of paragraph 5 shall apply to all further visitation."

Post-trial motions were filed by both parties, the plaintiff objecting to that portion of the order denying her a judgment for accrued child support payments and the defendant objecting to the amount of future support payments. The trial court denied both post-trial motions and both parties appeal. We reverse the order of the trial court as to plaintiff's appeal and affirm as to defendant's appeal.

As a point of beginning we note the following from Slavis v. Slavis (1973), 12 Ill. App.3d 467, 472, 299 N.E.2d 413, 417:

"An examination of the authorities of this State reveals abundant and consistent authority for the proposition that a violation of the visitation terms of a divorce decree by the mother will not excuse the father's failure to comply with the alimony and child support terms. [Citations.] These cases have also consistently held that past-due installments of support are a vested right, and a court has ...

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