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In Re Marriage of Raidbard

OPINION FILED JULY 28, 1980.

IN RE MARRIAGE OF ALVIN RAIDBARD, PETITIONER-APPELLANT, AND MARILYN RAIDBARD, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

These consolidated appeals have been taken by Alvin Raidbard (petitioner) from post-judgment orders which increase child support from $300 to $850 per month and require petitioner to pay a $5000 fee to attorneys for Marilyn Raidbard (respondent). The trial court also entered a partial stay of the order modifying the support payments. Respondent has cross-appealed from this stay.

A judgment for divorce was entered on November 15, 1972. Respondent was granted custody of the two-year-old daughter of the parties. Petitioner was ordered to pay child support which increased as his income did with a maximum amount of $300 per month if his income reached $12,000 per year. On May 25, 1979, the trial court increased the child support from $300 to $850 per month commencing as of March 1, 1978. The order required respondent to pay all expenses of the child except extraordinary medical, dental, or psychiatric expenses. Petitioner was to pay respondent $4500 to cover the arrearage from March 1, 1978, to May 31, 1979. On July 30, 1979, and on August 17, 1979, respondent filed petitions for attorneys' fees. On August 17, 1979, the trial court entered an order for payment of $5000 to respondent's attorneys. On August 3, 1979, the trial court ordered petitioner to continue to pay respondent the former amount of child support, $300 per month, and to pay the balance of $550 per month and the arrearage of $4500 to the clerk of the circuit court pending disposition of the appeal.

As a preliminary matter, we find these proceedings are governed by the Illinois Marriage and Dissolution of Marriage Act effective October 1, 1977 (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.). This Act by its terms "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. 1979, ch. 40, par. 801(b).) See Staub v. Staub (1978), 67 Ill. App.3d 1004, 1006, 385 N.E.2d 771. Compare In re Marriage of LaSusa (1979), 80 Ill. App.3d 467, 400 N.E.2d 21.

I.

On the issue of child support, petitioner contends the trial court looked only at petitioner's increased income and ignored the actual needs of the child, the improved financial status of the mother, and the indebtedness of the father.

• 1 In Illinois child support is a continuing obligation "`subject to change as the conditions and circumstances of the parties warrant.'" (Sharp v. Sharp (1978), 65 Ill. App.3d 945, 947, 382 N.E.2d 1279, quoting In re Fisher (1958), 15 Ill.2d 139, 151, 153 N.E.2d 832.) In modifying support payments, the court must inquire whether sufficient cause has intervened since the entry of the judgment to authorize the court to modify the allowance. (Swanson v. Swanson (1977), 51 Ill. App.3d 999, 1000, 367 N.E.2d 512, appeal denied (1977), 66 Ill.2d 642.) The new or changed circumstances must be material or substantial. (Sharp, 65 Ill. App.3d 945, 947.) In this regard, courts> consider both the circumstances of the parents and the children. (Sharp, 65 Ill. App.3d 945, 947; Sullivan v. Sullivan (1978), 57 Ill. App.3d 958, 963, 373 N.E.2d 829.) The specific factors to be considered include the financial resources of the child, financial status and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and his educational needs, and the financial ability and needs of the non-custodial parent. Ill. Rev. Stat. 1979, ch. 40, par. 505; In re Marriage of Edelstein (1980), 82 Ill. App.3d 574, 576, 403 N.E.2d 323.

Considering these factors in the case before us, we conclude petitioner's ability to pay has increased substantially since the 1972 divorce judgment. Prior to that time, petitioner had gone to medical school in Europe and was waiting admission to practice in the United States. He was then employed as a temporary elementary school teacher. His salary varied with the number of days he worked. Petitioner earned approximately $8000 in 1972. He was licensed to practice medicine in Illinois on November 29, 1974.

Petitioner presently operates a medical center through a corporation in Chicago. His 1977 corporate income tax return reflected income of $70,000. Petitioner testified his net income for that year was $30,000. This apparent discrepancy remains unexplained. His W-2 form for 1978 stated his personal income as $62,000. He has a savings account of $1800 and a checking account of $1700. Petitioner's corporation has two checking accounts, one with a balance of $3000 to $4000 and the other with an unknown balance. Petitioner claims he has substantial debts because of his business. He also remarried, and he and his present wife have one son.

At the time of the hearing, respondent was employed as a sales representative and earned $200 per week plus commission. She had a savings account of $500. Since that hearing, respondent was transferred to the Los Angeles metropolitan area to assume a new position which was a "substantial advancement" over her previous job. A petition unrelated to these proceedings, filed by petitioner, shows respondent's earnings increased by $100 per week. The respondent calculates her personal expenses at $1039 to $1054 per month. Many of respondent's expenses appear reasonable. Several, however, are vigorously disputed. These include $56 for telephone, $350 for food, $50 to $60 for auto repair, and $140 for auto maintenance.

Respondent testified the expenses of the child, now 10 years old, total from $788 to $828 per month. These expenses include newspapers and magazines, clothes, grooming, educational books, babysitters, various lessons, orthodontist visits, birthday party gifts, synogogue, Hebrew school tuition, drugs, dentist bills, vacation, and social worker bills. Some of these expenses were subject to dispute. Respondent first testified the child needed $25 per month for birthday party gifts; however, on cross-examination she testified the amount was only $6. Respondent listed $100 for vacation cost, but testified this provided for both her and the child. Respondent listed $160 to $200 per month as cost of a "social worker." This item actually had reference to psychiatric or psychological assistance for the child, a need which no longer exists.

Prior to the hearing, these items were not always paid by the respondent. Petitioner testified he contributed approximately $1000 per month for several of these expenses in addition to his regular support payment. The child received free medical care due to professional courtesy, and the child's grandparents paid for her religious education.

• 2 It appears to us many of these various expenses could not have existed at the time of the 1972 judgment for divorce. Quite aside from these matters, the increased needs of the child may well be presumed from the undeniable facts that the child has grown older and the cost of living has risen. (In re Marriage of Ebert (1980), 81 Ill. App.3d 44, 47, 400 N.E.2d 995; Sharp, 65 Ill. App.3d 945, 948; Swanson, 51 Ill. App.3d 999, 1001.) Furthermore, the court may consider the standard of living the child would have enjoyed had the marriage not been dissolved. Ill. Rev. Stat. 1979, ch. 40, par. 505(a)(3).

• 3 Upon detailed consideration of the record, we have concluded that an increase of child support payments to $650 per month is equitable to both parties and required by the evidence. The support payments are ...


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