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Fogliano v. Fogliano

OPINION FILED APRIL 14, 1983.

JILL M. FOGLIANO, PETITIONER-APPELLANT,

v.

ANTHONY T. FOGLIANO, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Tazewell County; the Hon. Arthur H. Gross, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The parties were divorced on July 12, 1976. Custody of the parties' minor child was given to the petitioner, Jill M. Fogliano. The decree provided that the respondent, Anthony T. Fogliano, pay a sum of $25 per week for the support of the minor child. The support payments were to increase to $40 per week after the respondent completed an apprenticeship.

On January 28, 1982, the petitioner filed a petition for rule to show cause why the respondent should not be held in contempt for wilfully failing to pay the weekly child support payments. The petition alleged that $9,835 in arrears was due her. She also asked the court to award attorney fees and court costs.

The respondent stated his reasons for his failure to make support payments in his response to interrogatories put to him by the petitioner. He alleged that the petitioner came to him in 1979 and told him "it was more important that the Respondent be a father to the minor child than the actual money." The respondent said he was in poor financial condition at that time. He claimed that the petitioner said that if "he saw and kept the minor child for the Petitioner the Petitioner would not take Respondent into Court to collect this money."

The respondent also stated in his answers to the interrogatories that he did not complete the apprenticeship program mentioned in the divorce decree.

On April 6, 1982, the respondent filed a petition to suspend child support because he was being "laid off" from his job at Caterpillar Tractor Company. He filed a motion for specific visitation of the minor child on April 14, 1982.

After a hearing on petitioner's petition for rule to show cause, the court entered an order on June 7, 1982. The order stated that the respondent had failed to prove his asserted defense of equitable estoppel. The duty of support was due and owing from the respondent to the petitioner at all times since the parties' divorce. The amount of support was $25 per week and not $40 per week, so that the amount in arrearage was $6,160. The order provided for a judgment against the respondent in the amount of $6,150. The court found the respondent in wilful contempt of court for failing to pay child support.

The order provided that the respondent pay the $25 per week support for so long as his supplemental unemployment benefits were received. In the event that the benefits ceased during his unemployment, the duty to pay support would abate. The respondent was ordered to use his best efforts to obtain employment. When the respondent became employed, he was to pay the petitioner $25 per week as support and an additional $25 per week towards the arrearage.

The respondent's motion for specific visitation was denied in the order.

The order further stated: "That Petitioner's request for attorney's fees is denied and that each party is directed to pay his and her own respective fees."

The petitioner filed a timely appeal. She asserts that the trial court did not have the discretionary power to deny attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 508(b)). The petitioner argues that while the court had discretion to determine reasonable fees, it had no authority to deny fees. She asks this court to vacate the order denying her request for fees and to remand the cause to the trial court for a determination of a reasonable amount of attorney fees.

The respondent argues that the petitioner's appeal cannot prevail because she has failed to file a complete record of the trial court's proceedings; that her issue cannot be reviewed without a report of proceedings or bystander's report. The respondent also argues that the awarding of attorney fees was discretionary with the court. He points out that the trial court acted properly in denying the petitioner's attorney fees, because there was no evidence presented, either in the trial court or in the record, concerning the basis of reasonableness of the fees requested. There is no response to these allegations as the plaintiff did not file a reply brief.

The respondent filed a motion to dismiss the appeal on the ground that an inadequate record has been filed by the petitioner. He alleges that the petitioner has not filed a report of proceedings and has failed to comply with Supreme Court Rule 323 (87 Ill.2d R. 323). This motion, along with the petitioner's objection to the motion, are taken with the case.

The petitioner argues against the respondent's motion to dismiss on the ground that the June 7, 1982, order constitutes a sufficient record for review ...


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