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In Re Marriage of Van Winkle

OPINION FILED JUNE 16, 1982.

IN RE MARRIAGE OF LYDIA VAN WINKLE, A/K/A LYDIA CARPIO, PETITIONER-APPELLEE, AND COLONEL VAN WINKLE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Henry County; the Hon. SUSAN B. GENDE, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The appellant, Colonel Van Winkle, initiated a petition for modification in the circuit court of Henry County requesting that the court terminate his obligation to pay child support on behalf of his minor child, Gary Van Winkle. This was followed by a petition filed by appellee, Lydia Carpio, the child's custodial parent, requesting that the court order Colonel to reimburse her for legal and medical expenses paid by her in connection with defending Gary in a juvenile proceeding which resulted in an adjudication of delinquency and placement with the Department of Corrections. The court denied Colonel's petition for modification and further ordered Colonel to reimburse Lydia for one-half of the extraordinary legal and medical expenses incurred on Gary's behalf. It is from this order that Colonel appeals. The two issues before us are: (1) whether the trial court erred in denying Colonel's petition for modification; and (2) whether the trial court erred in ordering him to reimburse Lydia for medical and legal expenses incurred for Gary.

Colonel and Lydia were finally divorced on October 30, 1968. Lydia was awarded custody of their minor children and Colonel was ordered to pay child support which, at the time of the instant proceedings, amounted to $30 per week for the one remaining minor child, Gary.

On April 23, 1981, Gary was adjudicated a delinquent and committed to the Department of Corrections, Juvenile Division, as a result of juvenile proceedings brought against him in Rock Island County. Custody and guardianship were transferred to the assistant director of the Department accordingly.

Incidental to the juvenile charges, Gary underwent psychological and neurological evaluation. Pursuant to the terms of the original divorce decree, the bills for these services were submitted to the carrier of health insurance provided by Colonel. After the carrier had discharged its obligation under the policy, there remained $481.07 in non-covered medical expenses, and this amount was billed to Lydia. In addition, counsel retained by Lydia for Gary's defense charged Lydia $2,000 for his services.

The change in Gary's custody and the extraordinary expenses incurred on Gary's behalf prompted the petitions which are the subject of the instant litigation. Upon consideration of the parties' oral and written arguments, the trial court entered its written findings and determination as hereinbefore indicated. Because we are unable to determine from the record on appeal whether or not the trial court considered reducing the amount of child support to reflect the change in circumstances brought about by Gary's juvenile placement, we remand this cause to the trial court on this issue. We reverse the order of the trial court respecting reimbursement for medical and legal expenses.

It is well settled that a substantial change in circumstances will warrant modification of child support. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) The transfer of custody of a child has been determined to be such a change in circumstances. See Lamp v. Lamp (1980), 81 Ill.2d 364, 410 N.E.2d 31.

The sole substantial change in circumstances alleged by Colonel Van Winkle in support of his petition for modification was the fact that Gary was no longer in the custody of his mother. Evidence was introduced to establish that the Department of Corrections makes no charges to parents for the support of juveniles placed in the care of its juvenile division. Other evidence was admitted which tended to demonstrate that Lydia sustained certain fixed expenses for the maintenance of her home to which, presumably, Gary would return upon his release from the Department of Corrections.

• 1 The trial court's written order contains the following finding respecting Colonel's petition: "[B]ased on the pleadings, evidence, stipulated facts and law, the order earlier entered on July 21, 1980 [fixing the amount of support at $30 per week] as to support of said minor should not be modified, and is therefore in full force and effect." We agree with the trial court's finding as a matter of public policy that the placement of a minor child with the Department of Corrections does not relieve the parents of their duty of support. The trial court correctly denied Colonel's request that his support obligation be terminated. The fact, however, that Gary's current needs, while in the custody of State juvenile authorities, have substantially decreased cannot be denied. If, in fact, $30 per week represented a proper balance between Gary's needs and Colonel's ability to support him prior to his delinquency adjudication, then it would appear that an imbalance may have been achieved upon Gary's placement with the Department of Corrections. If so, reduction in child support is appropriate. (See Dull v. Dull (1979), 73 Ill. App.3d 1015, 392 N.E.2d 421.) While we recognize the wide discretion accorded the trial judge in such matters (Sullivan v. Sullivan (1978), 57 Ill. App.3d 958, 373 N.E.2d 829), we nonetheless must remand this cause because we cannot determine based on the record on review whether the judge in this case did in fact exercise her discretion in denying in toto Colonel's petition. Although not specifically requested in his prayer for relief, it was unquestionably within the scope of the trial judge's discretion to reduce child support payments in consideration of the change of circumstances even if termination was not warranted by the facts. The record is silent as to why the trial court chose to deny any form of relief whatsoever for the non-custodial parent. By remanding this cause, we do not intend to imply that continuation of $30 per week child support during the minor child's placement in the Department of Corrections would be an abuse of discretion in this case. (See Breuer v. Breuer (1972), 4 Ill. App.3d 179, 280 N.E.2d 518 (non-custodial father required to pay child support to custodial parent for periods when child was absent from home to attend college).) We observe merely that the record does not disclose that a reduction in child support was considered by the trial court in its determination and that we cannot determine on the record before us that such a reduction was not warranted under the circumstances presented.

We next consider whether the trial court's award of reimbursement to Lydia Carpio for medical expenses and attorney fees was erroneous. It is Colonel's position that the trial court lacks authority to award any reimbursement for medical and private attorney fees expended on Gary's behalf in the absence of a specific statutory provision therefor. He relies upon section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510) in asserting that Lydia is barred from recovering reimbursement for expenses incurred prior to the date of filing her petition therefor in the trial court.

Lydia, on the other hand, argues that the public policy of Illinois is to protect minors against whom juvenile proceedings are initiated (Ill. Rev. Stat. 1979, ch. 37, par. 701-20) and to require parents to provide, to the extent possible, for the support of their minor children (Ill. Rev. Stat. 1979, ch. 40, par. 506). Therefore, the argument continues, any extraordinary expenses in the nature of necessaries, including reasonable fees incurred by the custodial parent in defending a minor child, should be reimbursable from the non-custodial parent.

The issue presented to us in the instant case appears to be one of first impression in Illinois. The record discloses that the original divorce decree dated October 30, 1968, provided that Colonel would pay $20 per week in child support and that he would maintain health and accident insurance on the minor children. No further provisions were made as to extraordinary expenses of the children. On September 8, 1972, Lydia filed a petition to modify, requesting an increase in support. This petition was disposed of by the parties' stipulation increasing the weekly support payment to $40 per week.

A second petition to modify was filed on November 18, 1977, in which Colonel requested a reduction in support because of the emancipation of one minor child. The court, accordingly, modified the weekly payment to $20. On June 23, 1980, Lydia filed a petition to modify, requesting an increase because Colonel's income had increased and Gary's needs had increased with age. Pursuant to the parties' stipulation, the court increased Colonel's weekly support payment to $30.

Between this last order and the petitions in the instant cause, juvenile proceedings were commenced against Gary on a burglary charge. Private counsel for Gary was retained on January 27, 1981, and the $2,000 paid by Lydia as a retainer on that date was disbursed as fees for services rendered on May 6, 1981. In preparing Gary's defense, psychological services were required which extended from December 19, 1980, through April 7, 1981. Fees for these services totaled $556.07, of which $481.07 was not covered by insurance. On April 30, 1981, Colonel ...


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