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In Re Marriage of Pauley

OPINION FILED MARCH 3, 1982.

IN RE MARRIAGE OF JOYCE ANN PAULEY, PETITIONER-APPELLEE, AND GARY LEON PAULEY, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Divorce.

Unilateral reduction of child support by the father.

Under the decree here — we reverse and remand.

FACTS

Gary and Joyce Pauley were divorced on June 18, 1976. Physical custody of their three sons — Mike, Kevin, and Scott — was awarded to Joyce. With respect to child custody, the divorce decree stated that:

"H shall pay W child support equal to 35% of his net income * * *. [W]hen the oldest child of the parties leaves home or reaches age 18, said child support shall be reduced to 30%; when the second oldest child leaves home or reaches age 18, said child support shall be reduced to 25%; when the youngest child reaches age 18 or leaves home, said child support shall be re-examined by the Court in light of college expenses and other matters.

The Court reserves for future consideration any obligation by H or W with regard to college expenses * * *."

In September 1977, Mike (the oldest child) became 18 years old and the father reduced support payments to 30% of his net income. In February 1978, the mother petitioned the court seeking additional funds for Mike's education at Illinois Wesleyan University. The trial court determined that she was entitled to 35% of the father's net income as child support and as contribution to Mike's college expenses. The court had found that the mother was not entitled to an amendment or modification of the divorce decree but rather ordered the award pursuant to the terms of the decree which reserved the question of college expenses.

In May 1979, Kevin (the middle son) became 18 years old and the father reduced the support to 30% after Kevin graduated from high school that year. The mother did not contest this reduction. In September 1979, Kevin began residing with his father, who is voluntarily contributing to Kevin's educational expenses. As a consequence, there is no question on payment with respect to Kevin.

In May 1980, Scott (the youngest child) became 18 years old. His father continued paying 30% until Scott completed high school and then reduced support to 5%. Scott began classes as a freshman at Illinois Wesleyan in August 1980 and on September 11, 1980, his mother filed a petition seeking, inter alia, additional support for Scott and Mike who were both attending college. On February 13, 1981, their mother filed a rule to show cause for past-due child support. An amended petition for rule to show cause alleged that the father's deficiencies in support payments from 1977 through 1980 amounted to $9,440.11. Of the alleged arrearage, $6,271.56 had accumulated in 1980 which was when the father had reduced payments from 30% to 5%.

The court found that the father was not entitled to reduce support from 30% to 5% and determined that there was an arrearage of $7,715.20 representing the period of time from March 29, 1980, to April 2, 1981. This amount was reduced to a final judgment against the father.

ISSUE

The sole point of contention is whether the father was entitled to reduce support payments from 30% to 5% when his youngest son, Scott, graduated from high school. Two arguments are presented that assert he was not entitled to reduce support. First, the trial court interpreted the divorce decree as providing that child support was to be re-examined when Scott turned 18 and was not to terminate at that time. The second argument, made by the mother, is that the 1978 court order raising support from 30% to 35% did not ...


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