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In Re Marriage of Butler



APPEAL from the Circuit Court of Cook County; the Hon. JAMES J. MEEHAN, Judge, presiding.


Rehearing denied June 21, 1982.

This is a consolidated appeal. In case No. 81-0145 Judith Butler appeals from a judgment entered October 31, 1980, ordering her to pay $250 per week in child support to Leonard Butler and from an order entered December 18, 1980, denying her motion to vacate the October 31, 1980, judgment. In case No. 81-0667 Judith Butler appeals from an order entered March 5, 1981, denying her petition for modification of the October 31, 1980, judgment.

Judith and Leonard Butler were married on August 18, 1962. There were three children born during the marriage: Leslie, Valerie and Adam. On July 24, 1972, a divorce decree which incorporated a property settlement agreement dissolved their marriage.

Under the terms of the decree and agreement, Judith Butler was given custody of the couple's children. Pursuant to a subsequent order entered on July 31, 1973, Leonard Butler assumed custody of the couple's three children. Seven years later, on September 29, 1980, Leonard Butler filed a petition requesting that Judith Butler be ordered to pay him child support.

On October 14, 1980, a hearing was held on Leonard Butler's petition for child support. The parties stipulated to the following facts: Leonard Butler had a net monthly income of $1371.04. Judith Butler's gross income was $30,899 in 1977, $47,742 in 1978, $63,628 in 1979 and during the first 9 1/2 months of 1980 her gross income was $32,882. Judith Butler's net income was $25,599 in 1977, $37,368 in 1978 and $47,840 in 1979. Because Leonard Butler was employed on a full-time basis, he chose to place the children in a learning center, where they stayed and slept all week long, returning home only on weekends. The children's school expenses for a period of 10 months in 1980 totaled $9100. The ages of the children at the time of the hearing were 14, 12 and 10.

Leonard Butler testified that his total monthly living expenses were about $3000, $2000 of which, he concluded, were expenses "directly or indirectly" attributable to the children. He had submitted to the court an affidavit listing $3722 in monthly expenses. The affidavit set forth that $1460 per month were expenses attributable to the children. He testified that he did not presently pay his sister the $750 per month listed in the affidavit to be applied toward the $29,600 he borrowed from her to maintain and support the children.

Leonard further testified that Judith had given him a total of $3000 in child support over the prior 3-year period; further, that he received unemployment insurance for approximately six months in 1980 and received Aid to Dependent Children during February of 1980 because he could not find a job. At the time of the hearing he did not have any money in the bank or own any stocks or bonds.

On cross-examination, when asked how he determined that two-thirds of his expenses were attributable to the children, Leonard responded that when he first assumed custody of the children in 1973, their expenses were $10,000 to $11,000 a year, but that those expenses had increased to about $22,000 or $23,000 a year at the time of the hearing. Leonard stated that he no longer had title to the parties' marital home and that he had conveyed his share of their equity to his sister in 1972. He stated that between 1977 and 1978 Judith sent him $50 a week in response to his requests for her assistance in supporting the children.

Judith Butler testified that she is employed as a full-time salesperson for Shaker Advertising Agency, receiving approximately $300 per week against a commission dependent upon her sales. She had approximately $5000 in the bank, a $34,000 mortgage on a house valued at approximately $60,000 and stock purchased at $2000.

During a 14-month period in 1979 and 1980, Judith had the sole care and custody of Leslie, one of the couple's three minor children. Judith stated that except during the period when she had custody of Leslie, she paid Leonard child support in the amount of $50 per week for 2 1/2 years. During this period, in addition to the weekly payments, she bought clothing, shoes and glasses for the children. In June of 1979, Leonard told her that if she would take care of Leslie he would not require her to pay $50 per week. In 1977 she had a conversation with Leonard at which time he told her that he needed only $50 per week from her in meeting the children's expenses. Besides those two conversations Leonard never asked her for child support and never asked her for more than $50 per week.

Judith testified further that her present living expenses were about $1570 per month. Her 1980 earnings to and including September of 1980 equaled approximately $32,882. She projected her remaining 1980 earnings might be as little as $3000 due to the fact that the advertising business had declined in view of the economy and the fact that she had lost some accounts. She further testified that she determines how many people she sees in her job and how hard she works. She agreed with the conclusion that she was earning about $3200 monthly at the time the child-support proceedings were instituted as opposed to about $4000 a month earlier.

On October 31, 1980, the trial court granted Leonard Butler's petition for child support and ordered Judith Butler to pay him a total of $250 per week in child support.

Judith then filed an emergency motion to vacate the order of October 31, 1980, and for a rehearing on the child-support petition pursuant to section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 68.3.) After argument, the trial court denied Judith's petition, stating that "as soon as she sits down and prepares her tax returns for the year 1980, ...

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