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Coons v. Wilder





APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM E. BLACK, Judge, presiding.


Respondent, cross-petitioner George W. Wilder, appeals from orders which were entered by the circuit court following enrollment of an out-of-state judgment dissolving his marriage to petitioner, Pamela K. Coons. He seeks reversal of orders modifying child support and visitation and the award of attorney's fees granted his former wife on grounds the court (1) lacked jursidiction over his person and the subject matter and (2) abused its discretion once it reached the merits.

The parties' marriage was dissolved in 1973 by a circuit court in the State of Oregon. Respondent was there ordered to pay $280 monthly child support and allowed visitation with his two children one weekend per month and for one week at either spring or Christmas vacation in alternating years. On November 21, 1977, Mrs. Coons, then an Illinois resident, petitioned the circuit court of Du Page County seeking to enroll the Oregon judgment and recover past due child support from respondent. Mr. Wilder answered and also filed a cross-petition requesting the court to extinguish his child support obligation and expand his visitation privileges to eight consecutive weeks each summer. Respondent maintained he was then unemployed and without substantial income and assets due to his enrollment in law school and an $18,000 investment loss. Lengthy summer visitation was sought by respondent because he had moved to Florida with his second wife, and this circumstance precluded monthly trips to see the children in Illinois.

The circuit court enrolled the Oregon judgment and determined respondent to be in arrears in his child support payments. Following the filing of numerous petitions concerning the arrearage and hearings thereon, the arrearage through November 1977 was ascertained and then paid by respondent. The hearing of respondent's visitation and child support modification petition filed in 1977 was postponed by the court and did not occur until August 1979; during the delay Mrs. Coons petitioned for increased child support. At the hearing on both parties' petitions, the unpaid arrearage from December 1977 to August 1979 was calculated. The amount owing was not reduced to judgment, however, as it had accrued during the period following the filing by respondent of his petition seeking extinguishment of his support responsibility which, if granted at the hearing, would revert back to December 1977, thereby eliminating the arrearage.

In the August 1979 hearing respondent testified he had recently been awarded his law degree and had passed the Florida bar examination, though he was not yet licensed to practice law in that State. He also disclosed his yearly gross earnings: $14,400 for the prelaw years 1972 to 1976; $1,400.00 for 1977; $6,600 for 1978; and $4,840 for the first eight months of 1979. Respondent further testified he had been paying $100 monthly child support pursuant to a Florida court's Uniform Reciprocal Enforcement of Support Act (URESA) order. The evidence disclosed that Mrs. Coons' net income fluctuated between $260 and $350 per month during the period in question. Evidence was also presented that as of August 1979, respondent and his second wife owned a home and automobile, as did Mrs. Coons and her second husband. Respondent also had $2,000 on deposit in his checking account in August 1979.

The petitions of each party to modify child support were denied, but the court ordered that one-half of the $280 monthly support obligation of respondent was to abate from December 1977 until January 1, 1980, at which time his support obligation would resume at 1 1/2 times the original $280 monthly sum until all abated payments were made up. Visitation was modified to three weeks each summer with alternating spring and Christmas vacations as provided in the original judgment. Respondent was ordered to pay $1,000 towards his former wife's attorney's fees on the basis that she had to initiate and litigate her enforcement claim against respondent for child support accruing between December 1977 and August 1979.

• 1, 2 Respondent raises preliminary challenges to the circuit court's in personam and subject matter jurisdiction. He correctly relies on Kulko v. California Superior Court (1978), 436 U.S. 84, 56 L.Ed.2d 132, 98 S.Ct. 1690, in asserting that the due process clause of the fourteenth amendment operates as a limitation on the power of Illinois courts> to modify sister State dissolution of marriage judgments so as to affect the rights of nonresident defendants lacking minimum contacts with this State. Respondent acknowledges he appeared generally in this matter, but maintains that he otherwise has had no contact with Illinois to support personal jurisdiction over him. This contention is clearly without merit as any defect in jurisdiction over his person was waived by appearing generally without objection to jurisdiction. People v. Securities Discount Corp. (1935), 361 Ill. 551, 554, 198 N.E. 681, 682; Mullaney, Wells & Co. v. Savage (1975), 31 Ill. App.3d 343, 347, 334 N.E.2d 795, 799.

• 3 The court also had subject matter jurisdiction to enter the orders appealed from in this case. Illinois circuit courts> have jurisdiction in all justiciable matters (Ill. Const. 1970, art. VI, § 9) and may exercise jurisdiction in cases involving enforcement or modification of out-of-state divorce decrees when they are registered as statutorily provided. (Thomas Thomas (1974), 23 Ill. App.3d 936, 938, 321 N.E.2d 159, 161.) This case became justiciable when the Oregon judgment was enrolled in the circuit court pursuant to the procedures set forth in section 511(c) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 511(c)).

• 4, 5 Respondent next questions the circuit court's power by suggesting that the Illinois court was bound by an interviewing URESA decision of a Florida court which reduced his child support obligation to $100 per month. Respondent argues that as Mrs. Coons first filed an action seeking arrearages in Illinois but did not wait for it to be heard before seeking URESA enforcement against him in Florida, she should be bound by the Florida court order. We disagree. When a support order is issued by another court before a URESA responding court renders its decision, the latter must conform its order to the amount granted in the prior proceeding. (People ex rel. Kerl v. Kerl (1979), 75 Ill. App.3d 347, 349, 393 N.E.2d 1305, 1307.) The uniform act was designed to be a supplementary mechanism directed at enforcing previously entered orders rather than a device for terminating or modifying child support. (Super v. Armstrong (1980), 83 Ill. App.3d 1062, 1064-65, 404 N.E.2d 1008, 1010.) To permit the URESA court to modify what it is called upon to enforce would thwart the laudable objectives of the statutory scheme. (Littrell v. Littrell (Tex. Civ. App. 1980), 601 S.W.2d 207, 209.) Indeed, Florida courts> as responding courts> under the Act are forbidden from entering support enforcement orders which supercede any previous order issued in a dissolution of marriage action. (See Ray v. Pentlicki (Fla. App. 1979), 375 So.2d 875, 878.) We conclude the circuit court was not bound by the Florida court's modification as that court was without subject matter jurisdiction to reduce respondent's child support obligations existing under the Oregon judgment. Littrell, at 209.

• 6 We now turn to the merits of the orders on appeal and first consider whether the trial judge abused his discretion in modifying respondent's visitation rights. The governing standard in modification of visitation cases is the best interests of the children (Crichton v. Crichton (1979), 75 Ill. App.3d 326, 329, 393 N.E.2d 1319, 1321; Taraboletti v. Taraboletti (1978), 56 Ill. App.3d 854, 856, 372 N.E.2d 155, 156; Blazina v. Blazina (1976), 42 Ill. App.3d 159, 167, 356 N.E.2d 164, 170-71), and the party seeking to increase the visitation rights he was originally granted bears the burden of showing that such an alteration is in the best interests of the children. (See Doggett v. Doggett (1977), 51 Ill. App.3d 868, 366 N.E.2d 985; Keefer v. Keefer (1969), 107 Ill. App.2d 74, 245 N.E.2d 784.) Respondent sought to increase his visitation to eight consecutive weeks each summer, but the trial court found that such a lengthy, concentrated visitation would prove traumatic to the children. Respondent failed to offer evidence in support of the expanded visitation he sought, expressing only that he feared the children would become estranged from him. We find no abuse of the trial court's discretion in denying respondent increased visitation and will not disturb its order. See Flanagan v. Flanagan (1970), 123 Ill. App.2d 17, 259 N.E.2d 610.

• 7 Respondent notes for the first time in his reply brief that the modification order actually reduced his visitation from one weekend each month to three weeks each summer, although Mrs. Coons had not requested his visitation rights be restricted. The point will be considered waived (In re Marriage of Thornton (1980), 89 Ill. App.3d 1078, 1092, 412 N.E.2d 1336, 1347), and, in any event, the adjustment appears reasonable under these circumstances as respondent had sought a more concentrated visitation period because of the expense of travel from Flordia monthly to see the children. Compare In re Marriage of Solomon (1980), 84 Ill. App.3d 901, 907, 405 N.E.2d 1289, 1293.

Respondent also seeks reversal of the order modifying his child support obligation. The court denied respondent's cross-petition to extinguish his child support responsibility, finding that his decision to attend law school was voluntary and unilateral and thus could not be considered as a basis for modifying the support obligation. Also, his $18,000 investment loss was considered by the trial court as not chargeable against the mother and children who had not consented to the venture.

• 8, 9 We do not agree with the trial judge's rationale for denying respondent's petition, as the voluntariness and consent standards he used were erroneously restrictive. It is well established that a voluntary change in occupation or employment made in good faith may constitute a material change in circumstances sufficient to warrant modification of a child support order. (In re Marriage of Ebert (1980), 81 Ill. App.3d 44, 46-47, 400 N.E.2d 995, 997; In re Marriage of Uphoff (1980), 80 Ill. App.3d 145, 147, 398 N.E.2d 1243, 1245; Glass v. Peitchel (1976), 42 Ill. App.3d 240, 242, 355 N.E.2d 750, 754.) The crucial consideration in testing "good faith" is whether the change in status was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests. (Graham v. Graham (1974), 21 Ill. App.3d 1032, 1036, 316 N.E.2d 143, 146; see Nelson v. Nelson (1960), 225 Ore. 257, 357 P.2d 536.) Substantial economic reverses resulting from investments or employment are proper circumstances to be considered in determining whether child support might be reduced or terminated. (See Elizer v. Elizer (1976), 36 Ill. App.3d 552, 555, 344 N.E.2d 493, 496.) The change in circumstances must, however, be fortuitous in nature and not the result of deliberate action or conduct of the party seeking the reduction. (Shellene v. Shellene (1977), 52 Ill. App.3d 889, 890-91, 368 N.E.2d 153, 154; see also Miller v. Miller (1978), 65 Ill. App.3d 844, 847, 382 N.E.2d 823, 826.) While in this case the unfortunate investment was obviously a deliberate act on the part of respondent, we doubt the ultimate loss sustained from it can be termed anything but fortuitous; it has not been suggested respondent did not hope for and expect to improve his financial status by this means. If he had done so, certainly his then increased assets would be considered in determining his ability to pay child support.

• 10 We think these factors should have been considered even though respondent did not ask his former wife and children for permission to attend law school or before investing $10,000 in securities. Child support obligations may be modified if the circumstances fairly warrant alteration, and the judgment of what is possible and fair must necessarily include consideration of the children's welfare in light of the father's abilities. (Nelson, 225 Ore. 257, 263-64, 357 P.2d 536, 539.) Ordinarily a man makes an investment or changes his occupation with the hope of improving his prospects for the future, including raising his own standard of living as well as that of his children. (See Fogel v. Fogel (1969), 184 Neb. 425, 168 N.W.2d 275.) Following dissolution of marriage, the custodial parent and children cannot be allowed to freeze the other parent in his employment or otherwise preclude him from seeking economic improvement for himself and his family. So long as ...

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