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In Re Marriage of Runge



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN F. ROSIN, Judge, presiding.


Petitioner Sandra A. Runge (Sandra) sought the issuance of a rule to show cause against her former husband, Charles W. Kohn *fn1 (Charles), for failure to pay the proper amount of child support and otherwise comply with the terms of their divorce decree, and sought an increase in child support. The trial court found that Charles was not liable for the alleged child support arrearages for several reasons and modified his support obligations. Unhappy with both of these results, Sandra appeals, contending that the trial court erred (1) in finding that Sandra was barred by equitable estoppel and laches from recovering any child support arrearages which existed; and (2) in modifying Charles' future child support obligation from a fixed percentage of his income to a set monthly dollar amount.

Sandra and Charles were divorced in Cook County proceedings finalized on June 18, 1971. Incorporated into the divorce decree was a property settlement agreement of the parties. In that agreement, Charles acceded to Sandra having permanent custody of the parties' three minor children, then aged 5 (twins) and 8 months. Charles also agreed to pay a fixed dollar amount of child support per month.

Unfortunately, entry of the decree did not squelch the acrimony existing between the parties. Several post-decree proceedings followed, including Sandra's first petition for a rule to show cause against Charles, filed March 6, 1973. Therein, Sandra claimed that Charles was behind in his child support payments. Charles cross-petitioned for a reduction in his support obligations. After conducting a hearing, the circuit court ordered modification of the terms of the divorce decree by requiring that Charles would thereafter pay 40% of his net income, less certain deductions, per month. Additionally, Charles was to submit with each payment copies of his pay statements and statements of "unreimbursed employment expenses" with receipts therefor. The court also found Charles liable for a small amount of support arrearages. This order was entered June 8, 1973.

Sandra appealed from this order, and this court affirmed the circuit court. (Kohn v. Kohn (1974), 21 Ill. App.3d 117, 315 N.E.2d 52 (abstract).) During the pendency of the appeal, Sandra filed a second petition for a rule to show cause. The outcome of that proceeding is not relevant here.

Between 1974 and 1980, the parties remained in a state of relative tranquility so far as the judicial system was concerned. However, on December 4, 1980, Sandra filed another petition for a rule to show cause for Charles' alleged failure to comply with the terms of the decree as then in effect, and for modification of that decree, seeking an increase in child support. The result of this petition serves as the subject matter of this appeal.

Three witnesses appeared at the hearing on Sandra's petition. Each party appeared on his own behalf and as a section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60) witness for the other. Charles also called his present wife to the stand. Review of the testimony of each party will be consolidated for convenience.

In her testimony, Sandra claimed that she received the monthly sum of $226.34 from Charles after entry of the court order of June 1973. She never received copies of Charles' pay statements or itemizations of expenses. She had reminded Charles of his duty in this regard several times over the years but had received "no real response." Sandra stated that she had not sought judicial enforcement of the terms of the court orders because Charles had threatened to "alienate himself completely from his children, he would vacate the order and flee the state * * * and leave me with the entire burden of paying the expenses for the kids themselves." She did not believe that Charles had ever missed a payment.

Sandra related that she had met with Charles, his new wife, Sandra's then-fiance, and Sandra's and Charles' daughter in June 1974. Sandra stated that the meeting was for the purpose of discussing problems that the daughter was having. Sandra denied discussing alterations in the terms of Charles' child support obligations, and related that the five persons were never separated for any substantial period of time during the meeting.

Sandra also testified as to her then-current economic status. At the time of the hearing (March 1981), Sandra was employed as an operating room supervisor in a hospital, earning about $23,000 per year. In 1973, Sandra earned about $12,000 per year. Sandra estimated her monthly household expenses to be $1,481.90. She stated that the costs of raising the children had changed since 1973. The twins required cheerleading camp every summer. They were also sent on ski trips and to ski lessons. The youngest daughter needed dancing lessons and engaged in several costly school activities. The twins were about to acquire driver's licenses. All the children's clothing needs had increased. Sandra related that her only asset was her home, which she valued at $50,000 and which was mortgage-free.

Charles testified that he stopped paying Sandra 40% of his net income in July 1974. He also stopped tendering Sandra his pay stubs and expenses receipts at that time; prior to that time he had complied with the court order and tendered the data. Charles stated that he had a meeting with Sandra in June 1974. Also present were Charles' wife, Sandra's fiance, and one of Sandra's and Charles' daughters. The meeting was called to discuss problems of the daughter and Sandra's need for a "set budget because of her up and coming marriage." At the meeting, Charles informed Sandra that he was about to receive a pay cut at his job because of loss of business, and that consequently Sandra's child support payments (based upon the "40%" order) would be reduced substantially. Charles and Sandra thus agreed that he would pay Sandra a monthly sum of $226.34 in return for her waiver of her right to 40% of his income and her right to copies of his pay stubs and expenses receipts. Charles related that only he, Sandra, and Charles' wife were present at the time this agreement was reached, the other two having gone off to have their own conversation. The agreement was never reduced to writing, and no court order was ever acquired to modify the 40% clause of the earlier order.

Charles also stated that he was unemployed for six months sometime after the meeting, but that Sandra still received the monthly payment of $226.34. He further stated that he had relied upon the alleged agreement in drawing up his family budget. Charles noted that since 1973, his income had increased substantially, to about $30,000 per year. Finally, Charles denied ever threatening that he would flee the State if Sandra instituted court proceedings due to her claim that he had not complied with the court orders regarding child support.

The third witness at the hearing was Charles' second wife. She testified to the June 1974 meeting much as had Charles. She stated that Charles had initiated the support modification discussion there. She related that Charles was out of work for six months in 1975, but that his payments to Sandra per the 1974 agreement continued. She testified that Charles had mailed Sandra the required copies of pay statements and expenses receipts prior to the meeting. Finally, she noted that the family's monthly budget was based in part upon an expectation that Charles owed Sandra the amount agreed upon at the 1974 meeting.

Following the arguments of the attorneys for the respective parties, the court found no wilful contempt on the part of Charles. Based upon laches and equitable estoppel, the court further barred Sandra from pursuing alleged arrearages. The court found the testimony substantiating the existence of an agreement to be more credible in light of the actions of the parties thereafter. Finally, the court modified Charles' future support obligation to $350 per month, based upon Sandra's income and assets, the children's ages, the cost of living, Charles' obligation to his new family, and ...

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