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In Re Support of Bayuk

OPINION FILED DECEMBER 28, 1979.

IN RE SUPPORT OF TODD BAYUK. — (JOAN K. BAYUK, PETITIONER-APPELLANT,

v.

WILLIAM K. BAYUK, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM E. PETERSON, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT;

The petitioner, Joan K. Bayuk, appeals from an order of the circuit court of Cook County entered on September 28, 1978, denying her post-trial motion requesting a rehearing on her petition for an increase in child support. On appeal, petitioner contends that the trial court erred (1) in finding that the petition was insufficient as a matter of law based on the separation agreement which barred modification until the respondent's income increased to $53,000; and (2) in not allowing petitioner to present evidence in support of her petition for an increase in child support.

William M. Bayuk and Joan K. Bayuk were married on March 22, 1958. There were two children born during the marriage: Mark Bayuk, born July 17, 1959, and Todd Bayuk, born July 31, 1970. On August 5, 1975, a judgment for divorce was entered dissolving their marriage.

The petitioner was given custody of the two minor children, Mark and Todd, at the time of the divorce. The separation agreement negotiated by the petitioner, and respondent provides for child support payments for Mark and Todd in the amount of $800 per month. The agreement, included as part of said judgment for divorce, specified visitation and custody rights and stated as follows:

"That based upon the husband's present gross income of $43,000 per year, the husband shall pay to the wife, beginning this date, the sum of $400 per month per child, or a total of $800 per month as and for the support of Mark and Todd. There shall be no consideration of change in circumstances until the husband makes $53,000 per year.

This Agreement is made upon the understanding that the wife will be employed outside the home.

[T]he husband shall pay all extraordinary medical, surgical, dental bills, including costs of hospitalization incurred by or for said child or children. The term `extraordinary' as used in this paragraph shall include the parties' understanding that the youngest child, Todd, has severe allergies and an asthmatic condition, all medical costs including doctor's visits, injections, drugs and hospitalizations caused by said conditions shall be included within the term `extraordinary' and paid by the husband * * *."

On September 22, 1977, the petitioner filed a petition seeking an increase in child support alleging that Todd's "asthmatic condition * * * has become more severe in the last several years, requiring more frequent expenditures for drugs and other medicines and requiring that petitioner not work in order to care for said child." The petition further alleged that an increase in the amount of $1,000 per month was necessary to support Todd. The record reveals that the respondent's gross income at the time of the entry of the decree for divorce was $43,000. It should be noted that the record on appeal fails to include a copy of the respondent's 1976 tax return which was supplied to petitioner or otherwise disclose the respondent's income for that year. The respondent, however, admitted at oral argument and in his brief that his income increased to $49,000 subsequent to the filing of the petition for an increase in child support. Mark Bayuk, the other minor, had become emancipated at the time the petition for the increase in child support was filed.

Respondent, William M. Bayuk, filed a counterpetition in lieu of answering the petition, seeking a dismissal based on the provision in the judgment for divorce entered on August 5, 1975, which barred an increase in child support payments until his income increased to $53,000.

On September 1, 1978, the trial court, after reviewing the petition, counterpetition, and the judgment for divorce, dismissed the petition without prejudice and granted petitioner leave to amend. The petitioner subsequently filed a post-trial motion seeking a rehearing on the petition but this was denied by the trial court on September 28, 1978. After denying the post-trial motion, the trial court pursuant to Supreme Court Rule 304 entered an order which stated that "there was no just cause to delay enforcement or appeal." Ill. Rev. Stat. 1977, ch. 110A, par. 304.

• 1 Initially, we should note that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) which became effective October 1, 1977 is applicable to petitioner's case. Section 801(b) of the Act states, "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." (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) The petition to modify the judgment was filed September 22, 1977, and was pending on the effective date of the act; to wit, October 1, 1977. The court did not rule on the petition until September 1, 1978, a year after the new act became effective. Accordingly, we find the Illinois Marriage and Dissolution of Marriage Act is applicable to the petition for an increase in child support. Pierce v. Pierce (1979), 69 Ill. App.3d 42, 386 N.E.2d 1175.

The petitioner argues on appeal that the trial court erred in dismissing the petition for an increase in support without providing petitioner a hearing. Generally, an increase in support will be granted if there is a showing of a material change in circumstances. (Sullivan v. Sullivan (1978), 57 Ill. App.3d 958, 373 N.E.2d 829; In re Sharp (1978), 65 Ill. App.3d 945, 382 N.E.2d 1279.) The proof must show the increased needs of the child and a corresponding ability to pay by the non-custodial parent. (Daniels v. Daniels (1976), 38 Ill. App.3d 697, 348 N.E.2d 259.) The ruling of the trial court was based on the provision in the separation agreement relating to child support payments which stated that there shall be no consideration of change in circumstances until the husband's income increased to $53,000. We find the trial court's ruling erroneous under the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.

Petitioner sought an increase in child support alleging that there had been a substantial change in circumstances pursuant to sections 502(f) and 510(a) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1977, ch. 40, pars. 502(f), 510(a).) Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act states:

"Except for the terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in ...


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