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In Re Marriage of Mcdavid



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.


This is an appeal by plaintiff from an order in a post-divorce decree proceeding reducing child-support payments nunc pro tunc. On appeal, plaintiff contends that: (1) the court erred in reducing child support payments nunc pro tunc to June 1, 1975, when a later order specifically limited the retroactivity to December 1, 1976; (2) the reduction in child-support payments and the denial of her petition for attorney's fees was contrary to the manifest weight of the evidence; and (3) attorney fees should be awarded for defending post-decree actions and the appeal.

The record reflects that a 1970 divorce decree required defendant to make child-support payments to plaintiff amounting to $25 per week for their two-year-old child. Defendant was a student at that time and shortly thereafter received a masters degree. He also later obtained employment as an instructor at De Vry Technical Institute.

In August 1971, plaintiff filed a petition for a rule to show cause alleging that defendant was $925 in arrears on the $25-per-week child-support payments. The petition further alleged that defendant's salary was approximately $10,000 per year. The court ordered that the arrearage be reduced by a payment of an additional $25 per week, making defendant responsible for a total payment of $50 weekly.

In June 1974, plaintiff petitioned the court for an increase in child-support payments, alleging that defendant's gross income had increased to $16,000 annually. The petition was granted, and the basic support order was increased to $50 per week; defendant was ordered to pay accrued medical expenses; and plaintiff was permitted to move with the child to the State of Alabama.

On December 24, 1974, plaintiff again filed a petition for a rule to show cause alleging that defendant was in arrears in the payment of child support. After the hearing on the petition on January 17, 1975, the court found defendant in contempt for failure to pay $555. This amount was paid in open court and the matter was continued to March 18, 1975. On that date, defendant was granted leave to enter his petition for an order suspending child support payments. He alleged that on September 17, 1974, his employment at Advance Schools, where he had been earning $16,000 per year, had been terminated due to a lay-off and he was unemployed for three weeks. He then obtained employment at Bell & Howell Schools, but was involuntarily laid off from that job on February 7, 1975, and his income was reduced to zero.

At the brief hearing on the petition, the court refused to reduce or suspend the child support payments. Instead, the court ordered that the $50 per week would continue to accrue, but that during defendant's unemployment and until he received either unemployment compensation or employment income, no rule to show cause would be entered against him for nonpayment. The court further ordered that defendant pay $20 per week against the arrearage during the period he was receiving unemployment compensation (the remaining $30 to accure) and that, when he became employed, he notify plaintiff's attorney and a "suitable order on his petition may be entered nunc pro tunc." The order also declared defendant to be current on his child support payments through March 14, 1975.

On October 13, 1976, plaintiff was granted leave to file another petition for a rule to show cause against defendant for nonpayment. At the hearing of this petition on December 1, 1976, defendant's attorney filed an answer alleging that the March 18, 1975, order modified the child support payments, and he was not receiving either unemployment compensation payments or employment income. Additionally, defendant filed his second petition for reduction in child-support payments. The petition alleged that he had been unable to find teaching employment; that he had been devoting his time to his son by a previous marriage, who had a mental condition; that $50 per week was greatly beyond his present earning capacity; and that he believed that plaintiff's income was in excess of $10,000 annually.

At the hearing on the petition, the court's comments disclose that the court considered the March 18, 1975, order and interpreted it to mean that $50 per week had accrued from March 1975 to December 1, 1976. Defendant's attorney, who had also represented him at the March 18, 1975, hearing, requested Judge William E. Peterson to find that December 1, 1976, would be the effective "nunc pro tunc" date for purposes of determining the starting date for any reduction the court might find defendant entitled to should he prove his petition. The court then ordered that should defendant's petition for reduction "be found to be true, any order shall be nunc pro tunc to December 1, 1976."

On June 14, 1977, the cause was transferred to Judge John J. Crown, and the court conducted a hearing on still another of plaintiff's petitions for a rule to show cause. The court, after being apprised of prior orders entered in the matter, indicated that it agreed that the December 1, 1976, order was the proper effective date for the entry of any retroactive support reductions. The court stated:

"`Should the respondent's petition for reduction of child support based on the loss of employment be found true, any order shall be nunc pro tunc to 12-1-76.' It is very clear. Up to 12-1-76 the fifty dollars accrues. He pays the twenty dollars. He is accruing thirty dollars arrearage after December first if the employment situation is as counsel represents. Whatever order is entered today goes back to December 1, 1978, and if the arrearage of thirty dollars would be wiped out if an order of less than fifty would be found."

During this hearing, the parties on June 15, 1977, entered into an agreed order in which a judgment of $3,000 was entered against defendant and he agreed to pay this arrearage judgment over a period of time. This agreed order, however, was later vacated by the court pursuant to plaintiff's petition to vacate which alleged that defendant had misrepresented his income.

Thereafter, on November 14, 15, and 16, 1978, defendant's petition to reduce child support was heard along with plaintiff's petition for a rule to show cause which sought, among other things, a determination of the amount of arrearage due and attorney's fees. Plaintiff again was represented by new counsel, Peter V. Solber. *fn1 Prior to hearing evidence on the petitions, both parties' attorneys informed the court that the starting point for a determination of the matter of child-support reduction or child-support arrearages was the March 18, 1975, order. It also appears that the court had a copy of a petition for reduction of child support filed December 1, 1976, but the record does not indicate whether, at that time, the court was aware of the December 1, 1976, order.

At the hearing, defendant testified as to his income, as established by his tax returns. He stated that his income was $14,345 in 1974, $3,566 in 1975, reduced to an "adjusted gross" income of $929.22 in 1976, a loss of $164, $2,490 in 1977, and in 1978, up to the date of the hearing, slightly more than $3,000. The tax returns were introduced into evidence after cross-examination was completed. Defendant also testified that a list of his debts totaling $19,000 was correct and that his living expenses were approximately $417 per month. This list was later introduced into evidence. Defendant stated that his other son, Charles, had been in mental institutions five times and was currently suffering from mental incapacity. Thus, defendant found it necessary to assist his son with medical expenses, spending approximately $1,500 in 1977 and over $500 in 1978 up to the date of the hearing. He further testified that his position as a teacher at Bell & Howell had terminated March 1, 1975; he received unemployment compensation of $135 per week and paid child support during this period; he was unemployed for six months and, after the unemployment compensation checks terminated, he had no income and stopped his child support payments; he then started working as a handyman at Armitage Hardware and was still working in that capacity.

Defendant also stated that in May 1975, he purchased a one-half interest in two buildings for a price of $2. At the time of his purchase, the buildings had 75 violations pending in Building Court and all of the rents collected from the buildings from 1975 to the present had been used to pay bills on the buildings and correct violations. However, approximately 50 of the violations still existed. He testified further that the two buildings contains four apartments in the rear and five in the front, the gross rent was $685 monthly, and the gross adjusted income in 1975 was $929.22.

On cross-examination, defendant testified as to the exact amount of rent obtained from each room or apartment. The amount totaled $834.80. It was collected in cash by Herman Evans, who lives in one of the buildings without charge and who gives the tenants receipts for the rent collected. Further, defendant stated that he received $6,500 ...

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