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Giamanco v. Giamanco

OPINION FILED DECEMBER 13, 1982.

FRANCES GIAMANCO, PETITIONER-APPELLEE,

v.

PAUL D. GIAMANCO, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Jefferson County; the Hon. Jan Fiss, Judge, presiding.

PRESIDING JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Paul D. Giamanco (hereinafter referred to as the defendant) appeals from three separate post-divorce orders of the circuit court of Jefferson County. The central issue in each of these causes is whether the defendant's written admission of his ability to pay precludes him from introducing evidence controverting that admission at any future time. For the reasons which follow we affirm the judgment of the circuit court in case No. 82-256 (disposition of Frances Giamanco's petition to modify) and reverse the judgments in case Nos. 82-365 (contempt judgment against the husband) and 82-481 (disposition of the husband's petition to modify) and remand these causes for further proceedings.

The parties were divorced on June 12, 1972, and Frances Giamanco (hereinafter referred to as the plaintiff), pursuant to the parties' separation agreement, was granted custody of the couple's daughter, Samantha. The divorce decree obligated the husband to pay the wife the sum of $300 per month child support and $60 per month maintenance. On July 23, 1980, the plaintiff filed a petition for modification of the 1972 decree. The petition alleged that substantial changes in her physical and financial circumstances had occurred and therefore sought an increase in maintenance. On October 8, 1980, the plaintiff filed a petition for attorney fees incurred in connection with the modification proceeding. On January 12, 1981, defendant filed a written admission of "his financial ability to pay in this cause and understands that by so admitting that that issue will be resolved by this court and that a judicial finding of his ability to pay will be made and that the only remaining issue in this cause will be the financial needs of the Petitioner." The document concluded with a motion that the court order that defendant no longer need produce financial records. This motion was granted on February 5, 1981. On April 10, 1981, the plaintiff filed a petition for modification of child support alleging that substantial changes in circumstances had occurred which warranted an increase in payments.

Hearings were held on December 16 and 28, 1981. The plaintiff testified that her 10-year-old daughter suffers from asthma, which was not diagnosed until after the parties were divorced. She testified that the daughter's condition sometimes causes her to miss school, at which times plaintiff must take care of her. The plaintiff is self-employed in a small advertising business. She had formerly been employed as a college teacher and as a radio time salesperson. In 1977, she underwent surgery for a hernia repair which apparently induced blood clots to form in one of her legs. She also suffers from a slipped disc. These conditions limit her physical activity.

She testified that her gross expenditures between June of 1980 and December 15, 1981, were about $47,000 and her gross receipts during that period were about $42,000. The gross receipts included about $9,000 in loans from her father. The gross receipts in her business were about $22,475 and gross expenses were about $19,687. The pending bills of her business were about $1,833, and her personal bills at the time of trial were about $3,412.

She further testified that around 1978 her ex-husband voluntarily increased his total monthly payments by $50. She testified that she was able to finance the successive purchases of three Lincoln automobiles by selling one car and then re-investing in a new one. She was able to do this because interest rates at the time were very low. In 1980 she sold the last Lincoln and bought a Cougar. She also testified that while she was married she was able to buy many clothes but that since the divorce she had bought very few new clothes. She has also been forced to buy less expensive food. She testified that during her marriage she generally did not work and that she has not investigated the possibility of obtaining a teaching job at the college where she formerly taught.

Dr. Rosemary Walker, an economist, testified that from the time of the divorce in 1972 until May of 1981, the consumer price index had increased from 125 to 269, or about 215%. Additionally, she testified that during this time the needs of a child increased about 11.5% between the ages of one and 10 years.

Plaintiff's attorney submitted itemized bills for services rendered during the litigation. Included in the bills were 172 1/2 hours at $60 per hour, and $2,396.14 in expenses, for a total bill of $12,896.14. The defendant testified that, in his opinion, the hours billed were excessive and, in some instances, inaccurate.

The trial court found that the plaintiff had proved a substantial change in circumstances since the 1972 divorce decree. The court ordered an increase in maintenance from $60 to $150 per month, an increase in child support from $300 to $700 per month, and payment of plaintiff's attorney fees in the amount of $9,996.92.

The defendant filed a post-trial motion seeking, inter alia, leave to present additional evidence pertaining to his financial circumstances. On April 15, 1982, the trial court denied this motion and on May 10, 1982, the husband filed a notice of appeal from that denial. On May 6, 1982, the plaintiff filed a petition for rule to show cause why defendant should not be held in contempt of court. A hearing was held on May 27, 1982, at which the defendant testified that he had made three payments totaling $100 toward an arrearage of about $1,290 accrued during February, March, and April. The defendant testified that he failed to pay because he did not have the money to pay. The trial court sustained the plaintiff's objection based on the prior finding of the defendant's ability to pay. The defendant then made an offer of proof that, if allowed to present evidence on the subject, the defendant would testify that his liabilities exceeded his assets by $82,000 and that because of his current financial circumstances he had not wilfully failed to pay. The trial court accepted the offer of proof and denied admission of the evidence to which it pertained.

The trial court found the defendant in wilful contempt of court and sentenced him to 30 days in jail with an opportunity to purge himself of the contempt by paying the underlying judgment. On July 1, 1982, the defendant filed a notice of appeal from the June 10, 1982, order holding the defendant in contempt of court.

On May 26, 1982, the defendant filed a petition to modify the trial court's previous orders, alleging that his financial circumstances had changed. The plaintiff filed a motion to dismiss and on July 29, 1982, the trial court dismissed the defendant's petition to modify. On August 16, 1982, the defendant filed a notice of appeal from that order.

I. CASE NO. 82-256

This appeal raises three issues for review. First, the defendant contends that the trial court erred in ordering the increase in maintenance. Second, he challenges the propriety of the trial court's order increasing the amount of child support. Third, he ...


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