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Simmons v. Simmons

OPINION FILED OCTOBER 30, 1979.

JOHN C. SIMMONS, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

EILEEN M. SIMMONS, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOSEPH M. McCARTHY, Judge, presiding. MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Respondent, John Simmons, appeals from a post-divorce decree entered by the Circuit Court of Kane County increasing the amount of maintenance. Petitioner, Eileen Simmons, cross-appeals from the trial court's refusal to hear evidence of respondent's increased income and from the refusal to hear her petition for attorney's fees.

Petitioner and respondent were divorced on March 10, 1970. The order incorporated the parties' property settlement agreement which included the following provisions:

"(b) The husband further agrees to pay to the wife as alimony for her own support the sum of Seventy-five Dollars ($75.00) every second week, commencing the first payday as aforesaid and continuing every second Friday thereafter, until her remarriage or death.

(c) While it is recognized that child support payments may be subject to modification by court order under appropriate proofs of changed circumstances, wife agrees to seek no increase based on increased earnings of husband, and husband agrees to seek no decrease based on his own remarriage or birth of other children; and in no event is the amount of alimony to be modifiable except for death or remarriage of wife."

On June 9, 1977, petitioner filed her request for modification of alimony. Respondent filed a motion to dismiss which was denied on June 19, 1978. A hearing was held on September 29, 1978, at which petitioner and respondent both testified. The trial court apparently refused to hear any testimony with respect to respondent's increase in income.

On December 11, 1978, the trial court entered an order finding that the petitioner had proven a material change in circumstances and the ability of the respondent to make additional payments. On the basis of these findings, the trial court ordered the respondent to pay petitioner $50 per week in alimony.

On December 15, 1978, at 8:24 a.m., respondent filed his notice of appeal. At 9:13 a.m. on that same day, petitioner filed her request for attorney's fees. Respondent moved to strike the petition for attorney's fees on the ground that the trial court lacked jurisdiction by reason of the earlier filing of a notice of appeal. On January 9, 1979, the trial court entered an order denying petitioner's motion for attorney's fees and granting respondent's motion to strike.

Respondent appeals from the order increasing the amount of alimony he is to pay the petitioner. Petitioner cross-appeals from the denial of attorney's fees and from the refusal to hear evidence of respondent's increased income.

As a preliminary matter, the parties are not in agreement as to whether or not the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) applies to this case. Section 801 of the Act governs its application. In pertinent part this section provides:

"(a) This Act applies to all proceedings commenced on or after its effective date.

(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.

(c) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act."

(Ill. Rev. Stat. 1977, ch. 40, par. 801.)

The effective date of the Act was ...


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