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In Re Marriage of Donahoe

OPINION FILED MAY 3, 1983.

IN RE MARRIAGE OF MARIE DONAHOE, A/K/A MARIE KEANE, PETITIONER-APPELLANT, AND RICHARD H. DONAHOE, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of McHenry County; the Hon. Susan Hutchinson, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Marie Donahoe, now known as Marie Keane (Marie), appeals from that portion of an order terminating the child-support obligation of her former husband, Richard H. Donahoe (Richard), for the support of Margaret Donahoe (Margaret), one of the parties' children, and from a subsequent order denying her petition for attorney fees incurred in the child-support matters.

On appeal, Marie raises three issues: (1) whether the trial court erred in terminating child-support payments for Margaret Donahoe on the basis that she was emancipated; (2) whether the date on which Margaret was found by the trial court to be emancipated was incorrect; and (3) whether the trial court erred in denying her petition for attorney fees.

The marriage of the parties was dissolved by a judgment entered on October 7, 1977. A marital settlement agreement, incorporated by reference into the judgment of dissolution, provided that Marie would have custody of the parties' minor children and that Richard would pay child support of $125 per week per child "until each child shall have reached the age of eighteen years, die [sic] or become emancipated, whichever first shall occur." On October 16, 1981, Richard filed a petition to terminate support, alleging that Margaret Donahoe, the parties' only remaining minor child, refused to attend high school and was not working, and requested that she be declared emancipated according to the terms of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) and that his child-support obligation be terminated or, alternatively, that his obligation of child support be abated until she returned to school on a full-time basis. Marie moved to dismiss the petition and filed a petition for a rule to show cause alleging $1,125 in child-support arrearages and requesting attorney fees.

At the hearing on these matters on January 21, 1982, Richard testified that, under the original judgment of dissolution of marriage, Margaret was supposed to attend Marian Central Catholic High School, but that he had received reports from the school that she was not attending school. At the end of the 1980-81 school year, he had a conversation with Margaret and Marie. At that time he agreed to let Margaret transfer to Woodstock High School because he thought she would complete her high school education there. Margaret only attended two days of school at Woodstock. At that time he filed his petition, Margaret was not going to school and was not working.

Richard further testified that he felt an obligation to support Margaret if she were a full-time student. He had stopped making support payments to "force her to go back to school or have her emancipated." He said that he thought she was emancipated because she was now working and not going to school. He admitted that there was nothing in the original judgment which required her to go to school in order to be entitled to support. He also said that he did not know how much she made at her job. He believed that Margaret was still living with her mother.

He testified that he was a self-employed commodities broker; that at the time of trial he was in the middle of an anticipated two-month layoff because of an operation; that his only current income was $475 per month from a partnership; that when working his income varied depending upon the condition of the economy; and that he had recently reduced an outstanding $25,000 debt to $5,500. It was stipulated that Richard was in arrears in child-support payments since September 1981.

Margaret testified that she was 17 years old and would be 18 on October 1, 1982. She stated that she missed 59 1/2 days of school at Marian Central Catholic High School during the 1981-82 academic year; that "quite a bit" of it was because of injuries she received in two automobile accidents; that she attended Woodstock High School for one or two days during the 1980-81 school year, but quit when she contracted mononucleosis; that she was ill during September and October of 1981; and that near the beginning of November her doctor said that she could return to school, but that she decided she missed too much school to complete the semester. She said that she had initially planned to return to school in the second semester, but then decided to pursue a General Educational Development certificate (commonly known as a GED or high school equivalency certificate) when she became 18. She said she did not intend to return to high school and this decision was made by her on her own.

She testified that three to four weeks before the hearing she had begun working at a Jewel Food store; that she worked 15-20 hours a week and was paid $4.12 an hour; that her largest weekly paycheck was $41; and that she gave her mother $10 to $15 a week for food. She stated that she had applied for one other job, but was turned down for health reasons. She said that she planned to continue working at Jewel and living with her mother. She said she would be unable to support herself on the money she earned.

On January 27, 1982, the trial court, in a memorandum opinion, found that Margaret was dependent on both her parents; that she had voluntarily dropped out of high school and taken a part-time job; that she used her earnings for her own needs and contributed some of them to her mother; that Margaret's actions were not caused by a failure of her father to make support payments; that through her voluntary action Margaret caused the termination of her education; and that Margaret's actions had "accomplished a course of conduct designed to attain economic self-sufficiency" and had worked a severance of the filial relation. The court, therefore, found that Margaret was emancipated and that her father no longer had to pay support after November 4, 1981, the date on which her doctor said she could return to school. The court found that although it did not condone Richard's unilateral cessation of support payments after August 1981, it could not find that his failure to pay was "wilful and wanton" under the circumstances of the ongoing dispute concerning Margaret's education.

On March 30, 1982, the trial court entered a written order dismissing Marie's petition for a rule to show cause, terminating Richard's child-support obligation as of November 4, 1981, and awarding Marie $1,153.94 for child-support arrearages from September 1, 1981, through November 4, 1981.

Also, on March 30, 1982, Marie filed a petition for attorney fees of $747.50 which she alleged she had incurred prosecuting her petition for a rule to show cause and defending against Richard's petition to terminate child support. Her attached affidavit showed that she received $604 a month in income, expended $1,029 a month for expenses, and had $80,000 equity in her home. No further testimony was offered in addition to Richard's testimony of his financial condition at the prior hearing.

On April 12, 1982, the trial court denied Marie's request for attorney fees, finding that there was no specific evidence that she was unable to pay her attorney fees or that Richard was in a better financial situation to pay them.

Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(c)) provides, inter alia, that "[u]nless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child * * *." The legislative purpose behind section 510(c) is to permit the parties to agree to remain liable for the support of the child beyond emancipation. (Finley v. Finley (1980), 81 Ill.2d 317, 326, 410 N.E.2d 12.) We also note that the court may award support for a child who has attained majority and is not otherwise emancipated when such child is mentally or physically disabled, and may make provision for the education and maintenance of a child whether of minor or majority age. (Ill. Rev. Stat. 1981, ch. 40, par. 513; see also In re Marriage of Taylor (1980), 89 Ill. App.3d 278, 282, 411 N.E.2d 950.) However, although the intent of section 510(c) is clearly to allow the parties to agree that ...


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