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Finley v. Finley





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Marion County, the Hon. Bill J. Slater, Judge, presiding.


Rehearing denied September 26, 1980.

The primary question presented by this appeal is whether a parent who has been ordered by a divorce decree to pay a collective or lump sum weekly for the support of four minor children may unilaterally reduce the amount of such payments pro rata as each child is emancipated. The resolution of this issue also involves the construction of section 510(c) of the recently enacted Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 510(c)).

On October 4, 1965, a decree was entered in the Marion County circuit court dissolving the marriage of Ethel (plaintiff) and Bill (defendant) Finley. The decree provided, inter alia, that plaintiff be granted custody of their four children: Billy Irvin, age 16; Glenda Darlene, age 12; Terry Lee, age 7; and Patty Jean, age 4. The decree further provided as follows:

"That the defendant shall pay to the Clerk of this Court who in turn shall pay the plaintiff herein for the use, support and maintainance 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."

Defendant complied with the decree during the year 1965, paying $30 each week to the clerk of the court. When his older son, Billy Irvin, entered the Army in 1966, defendant decreased the support payments by one-fourth. He enclosed a note of explanation to the circuit clerk with the reduced payment of $22.50. Approximately 4 years later, the older daughter, Glenda Darlene, was married and defendant again unilaterally reduced the amount of child support to $15. He sent another note to the clerk of the circuit court explaining the second reduction. On October 31, 1975, the younger son, Terry Lee, became 18 and another pro rata reduction of $7.50 was made, although Terry Lee remained at home for a period of time thereafter. A note of explanation of the reduction was forwarded to the circuit clerk with the $7.50 weekly payment for the support of Patty Jean, the parties' only remaining minor child.

On December 8, 1977, subsequent to the emancipation of three of the four children, plaintiff filed a petition seeking child-support arrearage, interest on the arrearage, and an award of attorney's fees. Much of the wife's testimony at the hearing was directed toward negating an anticipated laches defense. She stated that, although she sought the advice of various attorneys several times concerning the unilateral pro rata child-support reductions, she was led to believe that there was nothing she could do regarding the payments. She stated that it was not until November 1976 that she learned that the previous legal advice that she had received was incorrect. She also was called to testify as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). She stated that she had confronted her former husband about the voluntary reductions on only one occasion. That conversation took place approximately 2 years prior to the date of the hearing on the petition for arrearage. The evidence further established that there were only one or two occasions where the support payments, albeit reduced, were tardy. On one of these occasions defendant had been hospitalized for burn injuries.

The trial court ruled that a spouse could not reduce the amount of support to be paid without leave of court. The court specifically found there to be no laches which would bar the claim and that the wife was not equitably estopped since the husband did not change his position in reliance on anything the wife did. Accordingly, on April 20, 1978, the court entered judgment for $10,713.75. The amount represented both the arrearage of child support, which was calculated from the time of the first reduced payments in 1966 until February 23, 1978, the date of the hearing, and $2,120.75 in interest. The wife's prayer for attorney's fees was denied. Thereafter the husband filed a petition for reduction of child support. After a hearing the court entered an order that after August 28, 1978, the husband pay $25 per week for the support of the remaining unemancipated child. The husband also appealed from the April 20, 1978, judgment for back child support and interest. On appeal in the appellate court, defendant claimed that the trial court's order to pay child-support arrearage was improper under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, which provides in part:

"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, except as otherwise provided herein, but not by the death of a parent obligated to support the child." (Ill. Rev. Stat. 1977, ch. 40, par. 510(c).)

A majority of the appellate court held that section 510(c) applied to the arrearage that accumulated subsequent to October 1, 1977, the effective date of the new act. The court held that the obligation to make support payments for emancipated children automatically abated under the new act and the defendant was not liable for the support payments for the three emancipated children that had accumulated after October 1, 1977. The appellate court reversed the circuit court of Marion County as to that part of the judgment.

As to those payments due prior to the effective date of the Act, the appellate court found the case of Doty v. Doty (1977), 45 Ill. App.3d 213, to be controlling and affirmed the trial court's order to pay. The court rejected defendant's arguments that the wife was equitably estopped from bringing the suit and that her claim was barred by laches. Finally, the court found that the trial court did not abuse its discretion in awarding interest on the arrearage. The court remanded the cause to the trial court, however, for a recomputation of the interest based on the appellate court's ruling that the defendant was not liable for support for his emancipated children after October 1, 1977. Also, the court ordered that, pursuant to section 508(a)(3) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 508(a)(3)), the wife was entitled to attorney's fees incurred in the defense of the appeal. 75 Ill. App.3d 89.

The question of unilateral pro rata reduction of support orders has been the subject of considerable litigation in our appellate courts>. Although one appellate court has held it to be permissible to reduce, without court order, a portion of the support payment upon emancipation (Snip v. Snip (1962), 35 Ill. App.2d 427), the appellate courts> of this State have generally held to the contrary (Storm v. Storm (1973), 9 Ill. App.3d 1071; Voss v. Voss (1974), 23 Ill. App.3d 312; Venegas v. Venegas (1977), 46 Ill. App.3d 998, 1001; Baker v. Baker (1977), 53 Ill. App.3d 186, 191-92; Doty v. Doty (1977), 45 Ill. App.3d 213; Jozwick v. Jozwick (1979), 72 Ill. App.3d 17, 20; Westerberg v. Stephens (1979), 76 Ill. App.3d 119, 122-23). These cases were decided under the law as it was settled prior to the enactment of the Illinois Marriage and Dissolution of Marriage Act and do not, of course, reflect the effect of section 510(c) of that act.

The parties do not contest the validity of section 510(c) of the new act. That section has recently been upheld by this court. (Kujawinski v. Kujawinski (1978), 71 Ill.2d 563.) We need only determine whether the provisions of that section permit an obligor-parent to proportionately reduce, without leave of court, the amount of support paid upon the emancipation of a child under a decree for the support of more than one child; ...

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