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In Re Marriage of Szczotka

OPINION FILED AUGUST 1, 1980.

IN RE MARRIAGE OF MARY SZCZOTKA, N/K/A MARY SZCZOTKA MILLON, PETITIONER-APPELLEE, AND RONALD SZCZOTKA, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. RENE GOIER, Judge, presiding.

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

This is an appeal from an order finding respondent in contempt and $8,200 in arrears of child support. The issues he presents are whether the finding as to the amount of arrearage was correct; whether he was deprived of his due process right to a hearing; and whether the trial court should have dismissed the petition for arrearage as a matter of law.

It appears that the parties were divorced in 1974, with the decree granting custody of their 2-year-old child to petitioner and ordering repondent "to pay $30.00 as child support."

In August 1979, a petition was filed seeking a rule on respondent to show cause for failure to pay any child support as ordered in the 1974 decree. The petition asserted that respondent was to pay "the sum of $30.00 per week" and that there was an arrearage of "in excess of $8,280.00." Respondent answered, denying the pertinent allegations of the petition and asserting certain affirmative defenses — pertinent of which was that the decree provided for $30 for child support and not $30 per week. With his answer, respondent filed a motion to dismiss the petition, the merits of which will be discussed later in this opinion.

At the hearing, petitioner testified in pertinent part that on January 18, 1974, respondent was ordered to pay $30 per week child support but has paid nothing and is over $8,000 in arrears.

Respondent, called as an adverse witness under section 60, answered questions as to his earnings in 1977, 1978, and 1979, and admitted that he had paid no child support. He was not asked concerning his financial situation in any year prior to 1977. In any event, immediately after respondent's section 60 examination was completed, the following colloquy took place between his attorney and the court:

"THE COURT: Six months in jail until he pays five thousand dollars ($5,000.00).

MR. BRAUER: I'm not finished.

THE COURT: Take him away.

MR. BRAUER: We have a defense to this.

* * *

THE COURT: There's no defense. You have four defenses; laches, denied; ignorance, denied; estoppel, you didn't prove. Now, —

MR. BRAUER: We didn't present our case. The petitioner presented her case. My client was called under Section 60. I didn't have an ...


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