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In Re Marriage of Taylor

OPINION FILED SEPTEMBER 25, 1980.

IN RE MARRIAGE OF EDYCE L. TAYLOR, A/K/A EDYCE L. LUNTZ, PETITIONER-APPELLEE, AND MARVIN N. LUNTZ, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The respondent, Marvin N. Luntz, appeals from orders of the circuit court of Cook County requiring him to contribute toward the education and maintenance expenses of his adult daughter, Gail, requiring him to pay an increase in his contribution toward the education and maintenance expenses of his adult daughter, Donna, and requiring him to pay a portion of the attorney's fees of the petitioner, Edyce Taylor (formerly Edyce Luntz). On appeal he contends (1) the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) (Marriage Act) precludes the award of support for adult children absent physical or mental disability; (2) the trial court failed to consider the statutory factors in ordering him to contribute toward the education and maintenance expenses of his adult daughters; (3) the petitioner failed to show a change in circumstances to warrant the order requiring him to increase his contributions toward the education and maintenance expenses of his daughter Donna; (4) the trial court erred in refusing his request for a continuance; and (5) the court erred in awarding attorney fees.

The parties were married on June 13, 1954. They had three children, Julia, born June 12, 1958, Gail, born February 18, 1961, and Donna, born August 8, 1959. On July 2, 1973, the parties were divorced. The child support portion of the divorce decree contain the following provision for the education of the parties' three children:

"If one or more of the minor children of the parties is educable and if it is within the ability of the defendant [Luntz] to pay in whole or in part for this education, defendant shall remain liable for the education of such child or children after that child or children reaches majority. The question of whether or not the child is educable and whether it is within the ability of the defendant to pay for this education shall be subject to further order of the court."

On August 15, 1977, on the petition of Taylor, the trial court ordered Luntz to pay $100 toward the education and maintenance expenses of Donna Luntz for each month that she was attending college beginning September 1, 1977. This order was not appealed.

On December 16, 1978, Taylor filed a petition seeking contributions from Luntz toward the education and maintenance expenses of Gail Luntz from February 18, 1979, her 18th birthday, until June of 1979, her date of graduation from high school and also seeking contribution for Gail's anticipated college expenses.

Taylor's petition was set to be heard on February 8, 1979. Luntz failed to appear in court on that date, although he had been notified. The court entered an attachment order against Luntz. Luntz obtained counsel, the attachment order was never executed and the matter was set for hearing for July 27, 1979. Luntz filed his response on July 17, 1979. On July 27, 1979, the court continued the cause to August 17, 1979, at the request of Luntz' counsel. On August 7, 1979, Taylor filed a petition seeking an increase in the amount that Luntz was paying toward the college expenses of Donna. A by agreement continuance was entered, to September 17, 1979. On September 17, 1979, the cause was continued to October 3, 1979, for a status report. On September 28, 1979, Taylor moved that there be immediate trial on October 3, 1979. On October 3, 1979, the trial court specially set the matter for trial on November 16, 1979, at 2 p.m. Throughout the proceedings extensive formal discovery was conducted.

On November 14, 1979, Luntz' counsel delivered a letter to Taylor's counsel requesting a continuance because of a conflict he had with another trial on November 16, 1979. A copy of the letter was sent to the trial judge. Luntz' counsel was notified that the letter had been received by Taylor's counsel but no response was made to the request for a continuance. On November 16, 1979, Luntz' counsel's office telephoned the trial judge, who stated that no decision would be made on the continuance pending a determination of what Taylor's counsel wanted to do.

On November 16, 1979, at 2 p.m., Taylor and her counsel appeared in court before Judge Lassers and answered ready for trial. Neither Luntz nor his counsel appeared. The trial court requested that Taylor's counsel telephone the office of Luntz' counsel. Taylor's counsel did so at 2:15 p.m. Luntz' counsel was told to be in court with his client "immediately." Luntz' counsel appeared immediately thereafter but Luntz was not present.

Luntz' counsel explained to the trial court that he had been on trial in Federal court, that the Federal court matter had been continued so that the attorneys could prepare for jury selection, and that he was at that time preparing for jury selection. Luntz' counsel then made an oral motion for a continuance on the ground that he was actually engaged in another trial. The motion was denied. Luntz' counsel stated he would leave the courtroom if the trial commenced. Trial commenced, and Luntz' counsel left the courtroom.

According to the evidence, Gail's college expenses at the University of Illinois in Champaign-Urbana would be $3,824 including tuition, fees, books, room and board. Donna's expenses at the University of Indiana would be $4,730 including tuition, books, supplies, food and rent. Gail earned $1,075 gross in 1977 and $2,591 gross under a high school work study program in 1978. Donna's gross earnings were $1,475 in 1977 and $1,276 in 1978. Taylor had not worked since March 3, 1979. She had been earning $156 net per week of $8,112 per net per year. Luntz' take home pay is $24,526 per year.

The trial court entered an order requiring Luntz to pay $130 toward the education and maintenance of Gail from the date of her 18th birthday to the date of her graduation from high school and $6,415 per year towards the college and maintenance expenses of Gail and Donna. The court also ordered Luntz to pay $1,500 of Taylor's $2,737 attorneys' fees.

In ordering Luntz to pay $6,415 toward the college expenses of Gail and Donna the trial court noted that each party was therefore responsible for the expenses in proportion to his or her income. The court also noted that $6,415 was 26% of Luntz' income or 1% less than the circuit court guideline for child support payments for minor children.

On January 23, 1980, Taylor moved under section 508(a)(3) of the Marriage Act for attorneys' fees for the defense of the appeal of the post-judgment orders. On February 28, 1980, after a full hearing, ...


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