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In Re Marriage of Potter

OPINION FILED SEPTEMBER 12, 1980.

IN RE MARRIAGE OF AILEESHA POTTER, PLAINTIFF-APPELLEE, AND DONALD C. POTTER, DEFENDANT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS, Judge, presiding. MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this appeal, the issue presented by defendant is whether the trial court improperly denied his supplementary petition seeking suspension and/or termination of alimony and child support.

When the parties were divorced in 1966, after 13 years of marriage, the decree gave custody of their seven minor children to plaintiff and required defendant to make monthly payments of $150 as alimony and $300 for child support. On petition of plaintiff in 1973, the monthly payments were increased to $200 for alimony and $450 for the support of the five children who were still minors, with a proviso that there be a decrease of $25 in alimony and $50 in child support as each of the three eldest children reached majority. In 1977, defendant petitioned for the termination or suspension of alimony and a decrease of child support. An answer and counterpetition were filed by plaintiff, but both petitions were eventually continued generally, and it appears that no other action was taken by the court concerning them.

The next activity appearing in the record was the filing by defendant on February 28, 1979, of a supplementary petition seeking the denial, termination or suspension of alimony and the suspension of child support for the two remaining minor children. It alleged in pertinent part that the awards of alimony and child support in 1973 were predicated on monthly net incomes of $1,440 for defendant and $300 for plaintiff; that since March 1, 1979, he has been unemployed and is receiving a gross income of only $65 per month from the rental of a vacant lot. The supplemental petition also asserted, on defendant's information and belief, that plaintiff received a $10,000 profit on the sale of their house and that she was now earning an income substantially in excess of $300 per month.

A hearing was held June 26, 1979, on the supplemental petition, at which plaintiff and defendant were present and both were sworn, but defendant was the only witness to testify. He stated that he has been unemployed since March 1, 1979, and that his present income was only $65 per month from the rental of a trailer lot; that his present wife owned six rental apartment buildings but she acquired all of them from her own funds; that he was an attorney and had been associated with a law firm for 17 years before his resignation on March 1, 1979; that although he became a partner in 1974 and was receiving a yearly income of $50,000, he resigned from the firm on February 28, 1979, because he had been "passed over" a number of times in the sense that each year younger attorneys had been put at higher levels in the firm; that he had made no effort to find new employment since his resignation; and that he and his present wife have an 11-year-old son.

The supplemental petition was denied, and defendant then filed a timely motion to vacate the denial order and for a rehearing, which was supported by his affidavit stating, in relevant part, that he terminated his law firm relationship because he received inequitable treatment; that due to his present wife's independent wealth he had not sought reemployment or unemployment compensation; that only two of the children were still residing with plaintiff; and that, upon his information and belief, plaintiff had a yearly employment income in excess of $12,000.

A hearing on this motion was held March 7, 1980, which consisted entirely of colloquy between the court, plaintiff's attorney, and defendant — who appeared pro se in all the trial court proceedings (as he is here), during which defendant stated that his resignation was voluntary and his take-home pay from the firm when he resigned was about $2,700 a month; that although he did not look for employment for many months thereafter and was still unemployed, he had started a small business in January 1980 which had earned only $136. The motion for rehearing was denied *fn1 and a timely notice of appeal has been filed from that order.

OPINION

In his supplemental petition, defendant sought termination or suspension of maintenance and child support. He agrees that under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(a)) termination or suspension is permitted "only upon a showing of a substantial change of circumstances," and we note that the burden of demonstrating such circumstances is on the person seeking the relief. See Glass v. Peitchel (1976), 42 Ill. App.3d 240, 355 N.E.2d 750; Daum v. Daum (1973), 11 Ill. App.3d 245, 296 N.E.2d 614.

Defendant initially contends that at the hearing on the supplemental petition, the trial court failed to give him "an adequate opportunity to present evidence concerning substantial changes of circumstances as relating to plaintiff." In support of this petition, he states only the following:

"Although the Court listened to testimony from the Defendant regarding the change of circumstances as they related to Defendant by the termination of his employment, the Court indicated at the hearing of June 25, 1979, that because of Defendant's voluntary termination of employment, the Court was not sympathetic to the changes that may have related to the Plaintiff. [Page reference given.] With such an expression by the Court and the denial of Defendant's Petition [page references given] it was apparent to Defendant that to persist further in an endeavor to delve into any change of circumstances as they related to the Plaintiff and the needs of the children would be to of no avail."

Our examination of the record reveals, however, that defendant did not raise any question in the trial court as to whether he had been given an adequate opportunity to present changes in plaintiff's circumstances. Neither does the motion for rehearing or the affidavit in support thereof raise any question in that regard. Moreover, it appears that plaintiff did not intend to present additional evidence in this regard, as in his affidavit supporting his motion for rehearing he states:

"24. That inasmuch as the allegations of defendant's supplemental petition were not denied prior to the hearing on said supplemental petition on June 25, 1979, defendant did not put on testimony concerning anything other than the facts surrounding his unemployment, and thus the Court was not fully advised of the substantial change of circumstances as they relate to plaintiff."

• 1 Because an issue not presented to or considered by the trial court cannot be raised for the first time on appeal (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 324 N.E.2d 417; Kirsch v. Rochford (1977), 55 Ill. App.3d 1042, 371 N.E.2d 899), we reject defendant's contention that he was not given the opportunity to present evidence as to plaintiff's change of circumstances.

• 2 In any event, we have examined the report of proceedings, including the page references mentioned above, and we find no support for this contention. Indeed, it appears that defendant made no request of the court at any time that he be permitted to present any evidence concerning a change in plaintiff's circumstances, and the record reveals no indication that he was in any manner obstructed or limited in the presentation of his case. To the contrary, we note in the quote above from his affidavit that because the allegations of his supplemental petition were not denied, he "did not put on testimony concerning anything other than the facts surrounding his unemployment." That this ...


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