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In Re Marriage of Moore

OPINION FILED AUGUST 25, 1983.

IN RE MARRIAGE OF BARBARA E. MOORE, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND JOHN D. MOORE, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Respondent, John D. Moore, appeals from that portion of the judgment of dissolution of marriage providing for child support. The issues raised by respondent are (1) whether the trial court's award of $24,000 per year for the support of two minor children constituted an abuse of discretion; (2) whether the trial court erred in providing for automatically escalating child-support payments; and (3) whether the trial court erred in requiring John to pay the two children's post-majority medical and dental expenses. Petitioner cross-appeals, contending that in the event the child support award is reversed, this court should also reverse the judgment of the trial court regarding the division of marital property and remand for another determination of that issue.

The parties were married in 1966 while in college. Petitioner graduated in 1966 with a degree in accounting and subsequently became a certified public accountant. Respondent continued his education until he graduated from medical school in 1971. Following her graduation petitioner worked as an accountant while respondent was in medical school and completing a four-year residency. From 1975 to 1977 the parties were in Ft. Leonard Wood, Missouri, where respondent served in the Army. Work was scarce at Ft. Leonard Wood, and petitioner was able to work only part time in a thrift shop. Two children were born to the parties, Peter in 1971 and Amy in 1976.

In 1977 the parties moved to Carbondale where respondent joined the staff of the Carbondale Clinic as a general surgeon. Petitioner worked part time as a CPA for a local firm. As an associate of the clinic, respondent's gross income increased from $62,000 in 1978 to $110,000 in 1980. The parties separated in 1980. Respondent resigned from the clinic in August 1980. At the time of the hearing on the property disposition, maintenance and child support, he was in the process of moving to Sidney, Montana, where he would establish a medical and surgical practice. He had reached an agreement with a hospital in that city whereby he was guaranteed a gross income for the first year of $120,000. There were also agreements with the hospital relating to moving expenses and support for office overhead expenses.

In 1980 petitioner had returned to school to obtain a master's degree in accounting. It was her stated purpose to teach at the junior college level and it was her expectation to earn $15,000 per year. Although she could expect to earn about $19,000 working as a CPA, she chose to teach to afford herself more time to devote to the raising of the children.

Final judgment was entered on December 21, 1981. Custody of the children was awarded to the petitioner. Respondent as ordered to pay child support in the amount of $12,000 per child per year effective November 1, 1981. Effective January 1, 1983, the child support was to be increased by $1,000 per child per year. Like increases of $1,000 per child per year were ordered until each child reached age 18 or finished high school. Respondent was also ordered to pay higher education expenses of the children, extending through graduate school. Respondent was lastly ordered to keep health and dental insurance for the children or otherwise pay all health and dental costs until each child reaches age 22.

• 1 We consider first the requirement in the judgment that respondent pay for the children's medical and dental expenses past the age of their attainment of majority. Petitioner has conceded that this is error. (Ill. Rev. Stat. 1979, ch. 40, par. 505.) Accordingly, that portion of the court's order directing the payments is reversed.

• 2 Respondent next directs an argument against that portion of the judgment which provided an automatic escalation of the child-support payments. We find that the argument is well taken. The judgment provided that the support payments should increase by $1,000 per child per year "until each child reached his or her eighteenth birthday or finishes high school, whichever occurs last." In the past we have held that escalation provisions in a judgment for child support are improper. We observed that `[b]ecause changes in these facts cannot be anticipated with accuracy, a circuit court should ordinarily not try to anticipate such changes by making its award of child support to increase automatically with the child's age. [Citation.] The self-adjusting aspect of the award of child support must, therefore, be reversed." McManus v. McManus (1976), 38 Ill. App.3d 645, 647, 348 N.E.2d 507.

Petitioner argues that the escalation clause was proper because the "trial court had a right to reasonably expect that John anticipated that his future income would certainly be expected to increase in such a dramatic fashion as it had while he was at the Carbondale Clinic." However, the trial court was not entitled to rely on the possibility or the likelihood of future increases. (Elizer v. Elizer (1976), 36 Ill. App.3d 552, 555, 344 N.E.2d 493.) The court in Coons v. Wilder (1981), 93 Ill. App.3d 127, 416 N.E.2d 785, after quoting McManus with approval, referred to several situations in which automatic increases in support payments based on anticipated gains have been disallowed. The court held that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) is "geared towards a present ability to pay support and does not suggest in its terms that possible future financial resources of a party may also be taken into account." Coons v. Wilder (1981), 93 Ill. App.3d 127, 134, 416 N.E.2d 785, 792.

Petitioner cites several cases in which courts> have "approved" automatic increases in the amount of support payable by the father. Unlike the present case, however, those cases do not involve an arbitrarily fixed increase triggered by nothing more than the passage of a year's time. In fact, the court in In re Marriage of Raidbard (1980), 87 Ill. App.3d 158, 408 N.E.2d 1021, did not approve automatic increases of any kind. Rather, the court fixed payments at $650 per month, a modification sought because of a dramatic change in the father's ability to pay. In Vollenhover v. Vollenhover (1955), 4 Ill. App.2d 44, 123 N.E.2d 114, a situation in which quarterly bonuses caused the father's income to fluctuate, the court did provide for increases in support payments, but these were made contingent upon the increases in his income actually taking place. In addition, the court's order contained a provision for automatic reduction during those months when the earnings decreased. Likewise, In re Marriage of Rizzo (1981), 95 Ill. App.3d 636, 420 N.E.2d 555, and Robbins v. Robbins (1976), 40 Ill. App.3d 653, 353 N.E.2d 110, involved situations in which incomes fluctuated unpredictably from year to year. To accommodate these changes, the court in those cases chose the most convenient method of calculation for both the party paying child support and the custodial parent receiving the payments, i.e., it computed the award on a percentage basis which would cause the payments to adjust according to the increases or decreases in income as they occurred. The court's order in the instant case contains no such adjustments or accommodations. We hold, therefore, that the provision for automatic escalation of support payments was in error.

• 3 Respondent finally argues that the trial court erred in fixing the amount of support at $12,000 per child per year. This amount, he contends, is not justified by the evidence relating to the children's needs and the respondent's ability to pay and is so excessive as to constitute an abuse of discretion. We must agree.

Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)) provides that in a proceeding for dissolution of marriage the court may order either or both parents to pay an amount reasonable and necessary for support, after considering all relevant factors. The relevant factors are stated to include (but are not limited to) the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child, and his educational needs and, finally, the financial needs and resources of the non-custodial parent.

At the hearing held for the purpose of determining the disposition of property and fixing the amount of maintenance and child support, it was established that the net worth of the parties was approximately $200,000. Although the petitioner was unemployed at the time, she anticipated obtaining a teaching position that would pay about $15,000 a year. Petitioner had non-marital property consisting of stocks, bonds and cash equivalents valued at approximately $23,500. She received in the distribution of marital property approximately $48,885 of income-producing property and the marital home in which the equity was $24,440. Petitioner testified that her living expenses were $17,139 per year. Respondent testified that his living expenses totaled $16,608 and that his business expenses, which were estimated to be $24,968, would increase the following year by $12,264 when he was to commence paying his office rent.

The petitioner testified that the annual expenses of the children totaled $32,856 and furnished a breakdown of the several items to show how she arrived at the figure. She stated on cross-examination that she did not believe the amount excessive for children of the wife of a doctor and the daughter of a doctor. The several items listed included $1,956 for medical and dental costs and insurance, $3,600 for vacations, $2,880 for clothing, $2,580 for child care, $12,624 for household operations and $1,296 for transportation costs. Respondent contends that in light of the financial condition of the parties, these amounts are unreasonable. The trial court must have agreed, at least to some extent, for it fixed the amount payable for the two children at $24,000 per year. ...


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