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In Re Marriage of Roth

OPINION FILED AUGUST 19, 1981.

IN RE MARRIAGE OF LESLIE LEVIN ROTH, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND IRWIN LEVIN, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. HYDE and the Hon. JOHN J. CROWN, Judges, presiding. MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Leslie Levin Roth (Leslie), the petitioner-appellant and cross-appellee, and Irwin Levin (Irwin), the respondent-appellee and cross-appellant, seek review of certain orders of the circuit court of Cook County in connection with a post-decree proceeding to modify child support payments.

The parties were divorced on March 14, 1974. Leslie was awarded custody of the parties' three minor children and Irwin was ordered to pay $225 per week for child support.

On December 14, 1977, Leslie filed her petition seeking an increase in child support and other relief. Thereafter, Irwin filed his petition for reduction of the amount of child support. Following a lengthy hearing on the petitions, the trial court entered orders on May 8 and May 29, 1977, which increased the award of child support by $180 per month, reduced Irwin's obligation to pay for certain Bar Mitzvah and summer camp expenses, and awarded Leslie $1500 in attorney's fees. Leslie appeals from these orders, and Irwin cross-appeals from the award of attorney's fees.

On August 16, 1979, Leslie filed a petition for a rule to show cause in which she alleged that Irwin refused to pay the increase in child support retroactive to December 9, 1977. On February 4, 1980, the trial court entered an order which stated that the order increasing child support was not retroactive, and Leslie appeals.

CHILD SUPPORT AWARD

Leslie testified that the children's needs in 1974 were $225 per week, the amount of Irwin's child-support payments. She asserted that in 1978, the needs of the children had increased significantly due to their advancing years and the effects of inflation. Leslie introduced into evidence cancelled checks which indicated that the cost of providing for the children had risen to over $600 per week. This figure including the children's share of the salary of a maid employed by Leslie. In her brief, Leslie asserts that the children's needs increased to approximately $2000 per month ($462 per week).

A property settlement agreement incorporated in the judgment of divorce indicated that the $225 child support award was "predicated on the husband's representation that his 1972 gross income was approximately $47,000." At the time of the divorce, Irwin owned stock in five currency exchanges. Although there was conflicting testimony and argument concerning his current income and net worth, Irwin's 1977 tax returns revealed his salary as $67,000. In addition, Irwin conceded that his net worth was at least $834,000. This figure includes the value of a home in Glenview, stock in three additional currency exchanges and interests in commercial real estate, all of which Irwin acquired subsequent to the divorce.

There also was some dispute concerning Leslie's present income and net worth. Pursuant to a settlement in lieu of alimony, Leslie received Irwin's 50% interest in the East St. Louis Currency Exchange which provides her with substantial income. According to her tax returns, Leslie's income subsequent to the divorce was as follows:

1974 $23,750 1975 57,700 1976 43,071 1977 55,750

Leslie testified that her income in 1978 was $36,000. According to a financial declaration statement prepared by Leslie in this cause, her net worth was $530,090.

The trial court found that there has been a material change in circumstances since the entry of the judgment of divorce and ordered Irwin to pay the additional sum of $180 per month for child support.

Leslie argues that the trial court abused its discretion in ordering such an inadequate increase in support. She asks this court to increase the payments by $100 per week, from $225 to $325 per week.

A party seeking modification of a provision for child support must show that there has been a substantial change in circumstances since the entry of the previous judgment. (Ill. Rev. Stat. 1977, ch. 40, par. 510(a).) In order to establish a substantial change in circumstances, the petitioning party must show an increase in the needs of the child and an increase in the ability of the supporting parent to pay. (In re Marriage of Schmerold (1980), 88 Ill. App.3d 348, 410 N.E.2d 629.) Where the supporting parent's ability to pay is shown, the fact that the child has grown older and the fact that the cost of living has risen are proper bases for establishing increased need. Schmerold.

In determining the amount of the increase, the trial court considers the same factors it considers in forumulating an original support order. (Winter v. Winter (1978), 69 Ill. App.3d 359, 387 N.E.2d 695.) These factors include the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and his educational needs, and, the financial resources and needs of the non-custodial parent. (Ill. Rev. Stat. 1977, ch. 40, par. 505.) Considerable discretion is placed in the trial court, and its order of modification will not be disturbed on review, absent an abuse of discretion. Winter.

• 1 We agree with the trial court that there was a substantial change in circumstances since the entry of the previous judgment. Although Irwin's payments covered all of the children's needs in 1974, Leslie testified that in 1978 it ...


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