APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
FLECK, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1982.
Respondent, Raymond Skilling, appeals from an order entered in the circuit court of Cook County awarding petitioner, Myrna Skilling, an unallocated sum of maintenance and child support of $16,500 per year payable in equal monthly installments. We vacate this order and remand with directions.
Myrna Skilling cross-appeals from an order entered in the same court which denied her petition for attorney's fees. We reverse this order.
Myrna Skilling's Petition
On December 6, 1977, Myrna Skilling filed her petition in this case seeking an "original" order for custody and child support of the parties' only child, Keith, age six. In the petition, Myrna alleged that Raymond and she had been divorced in London, England, by a consent decree entered on March 21, 1975. Myrna contended that she presently had custody of Keith and that Keith and she had been living in Chicago since the entry of the London decree. She also alleged that Raymond Skilling had been a resident of Chicago since the entry of the London decree. Myrna contended that she did not have sufficient funds to adequately support Keith and that Raymond had failed and refused to contribute to Keith's support. She asked the trial court to enter an order awarding custody of Keith to her and requiring Raymond to pay child support. She also asked that attorney's fees be awarded to her at the conclusion of the case.
Following a pretrial motion filed by Raymond, Myrna's request for child custody was stricken, apparently pursuant to agreement of the parties, and the case proceeded only on the issue of child support.
The primary issues raised by the parties at trial level and on appeal are the following:
(1) Did the trial court have subject matter jurisdiction to entertain Myrna's petition for child support?
(2) Did the London decree bar Myrna's petition for child support?
(3) Should the trial court have exercised "equitable jurisdiction" in this case and entered an "original" order for child support?
(4) Was the trial court prohibited from awarding Myrna attorney's fees?
Myrna is a citizen of Illinois and the United States. Raymond and Keith are citizens of the United Kingdom. From 1963 until 1975, Myrna and Raymond lived as husband and wife in London. Keith was born in London in 1971. The parties were divorced in London pursuant to a consent decree entered on March 21, 1975. Shortly before the decree was entered, all the parties moved to Chicago and have resided in Chicago since then. Raymond is an attorney and an officer of an international corporation and is presently earning more than $120,000 per year. At the time of the divorce, Raymond was earning approximately $90,000 per year. Myrna was unemployed before the divorce but was working full time at the time these proceedings were brought and was earning approximately $13,000 per year.
Under the London decree, the parties were awarded "joint custody" of Keith with Myrna having the responsibility of "care and control" over Keith. Apparently, under English law, this meant that Myrna was to be primarily responsible for Keith's daily care and control, but Raymond was to be allowed to have Keith with him on a reasonable and frequent basis and Raymond was to share in all major decisions concerning Keith's upbringing. The record shows that Raymond usually had Keith with him two to three days a week on the average. Raymond frequently traveled on business and thus in some weeks he would not see Keith but in others he would have Keith for more than two or three days.
The London decree required Raymond to pay all of Keith's educational expenses and to keep in force a life insurance policy in which Keith was the beneficiary. Raymond was also required to pay Myrna "as periodic payments for herself during their joint lives until such date as she shall remarry or further order" the sum of 5,000 pounds per year in equal monthly installments on or before the 21st of each month beginning March 21, 1975. Myrna admitted at trial, and the trial court found, that this was actually an order for unallocated maintenance and child support. Myrna alleged that the parties had agreed that 500 pounds per year would represent child support. Raymond denied this but made no attempt to show what amount was intended as child support.
Under English law the 5,000 pounds were taxable to Myrna. However, Myrna would not personally pay the taxes. Raymond was required to withhold the amount of taxes, approximately 33 percent, from the payments he made and then pay the taxes on Myrna's behalf. Hence, under the decree, Raymond was required to turn over to Myrna approximately 3,350 pounds per year. The exchange rate in effect at the time of the parties' divorce was approximately $2.30 per pound. Thus, when the decree was entered the entire award was worth $11,500 per year, of which Myrna was to receive approximately $7,700, or $650 per month. Of course, Myrna also had to declare the full $11,500 a year as "alimony" taxable to her under United States tax laws. (See 26 U.S.C. § 71 (1976).) However, she was allowed a credit for foreign taxes up to the amount of Federal taxes due on the payments, and the net effect was that Myrna's tax on the 5,000 pounds was only the 33 percent withheld by Raymond.
It appears that before Myrna brought her petition, Raymond had actually paid the full amount required by the London decree. However, his monthly payments varied to extremes. For example, in January 1977 he made two payments totaling $800, then in February he made one payment for $120. In June through September 1977, he made equal monthly payments of $812.50, then in October and November, he made no payments. This failure to make payments in those months caused Myrna to file her petition.
Though Raymond was making payments, the overall amount Myrna was receiving between the time of the decree and the time of the trial court proceedings decreased. Raymond was paying 5,000 pounds per year in varying monthly payments, but the value of the pound in relation to the dollar decreased to approximately $2 per pound. Thus, at the time of the trial court proceedings, Myrna was entitled to receive approximately $6,700 per year rather than the $7,700 she was originally entitled to based on the exchange rate in effect at the time of the parties' divorce. Thus, in dollar amounts, Myrna's payments actually decreased over the years. Moreover, the purchasing power of Myrna's dollars decreased over the years because of inflation.
Several months before Myrna filed her petition in this case, Raymond and she came to a tentative agreement that the total amount of the payments should be increased to $15,000 per year less the amount of the English taxes. The London decree was to be modified by consent to reflect this change. This ...