Appeal from the Circuit Court of Champaign County; the Hon.
Arthur D. Nicol, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
On September 8, 1982, petitioner filed for a rule to show cause, claiming arrearages of child support payments. Following a hearing and the filing of points and authorities by counsel, the trial judge entered his judgment on May 5, 1983, in behalf of petitioner for arrearages of $16,850 plus interest on the payments in the amount of $11,663.07. Petitioner filed a post-trial motion seeking attorney fees and stating that the court's May 5, 1983, order on the rule to show cause made no finding as to whether respondent's failure to pay child support was without cause or justification. After hearing on August 8, 1983, the court concluded that respondent's failure to pay child support was not without cause or provocation. The trial judge therefore declined to apply section 508(b) of the Illinois Marriage and Dissolution of Marriage Act and treated attorney fees as discretionary under section 508(a). (Ill. Rev. Stat. 1981, ch. 40, pars. 508(a), (b).) On September 28, 1983, the trial court entered its order on petitioner's post-trial motion, finding petitioner's reasonable attorney fees amounted to $1,680 and ordering respondent to pay $1,200 in light of the relative financial circumstances of the parties. Respondent appeals from the judgment of the circuit court of Champaign County. Petitioner cross-appeals. We affirm and remand the cause.
On appeal respondent argues (1) petitioner's claim is barred by equitable estoppel, or (2) by laches; (3) his 1969 petition to modify the divorce decree should be reinstated; (4) the trial court erred in awarding interest on the support arrearage, and (5) in ordering him to pay a portion of petitioner's attorney fees. On cross-appeal, petitioner argues (1) the trial court erred in not awarding her the full amount of her reasonable attorney fees; and (2) that she is entitled to attorney fees for prosecution of this appeal.
The parties' marriage was dissolved on October 16, 1967. Respondent was ordered to pay $250 each month for the support and maintenance of their three minor children. On April 9, 1969, respondent filed a petition to modify the divorce decree and reduce his support obligation. On May 23, 1969, the parties and counsel appeared and stipulated that (1) for three months respondent would pay petitioner $150 per month with liability accruing but sanctions not being enforced, and (2) respondent's petition would be heard during that period. Accordingly, the trial judge entered a temporary order pending a hearing upon the merits of respondent's petition.
Respondent failed to call his petition for a hearing on the merits, but continued paying child support at the rate of $150 per month. He further decreased his monthly support payments by $50 per month as each of the parties' children attained majority. On November 2, 1976, petitioner filed a petition to increase support payments for the remaining minor. On March 15, 1977, a consent decree was entered under which respondent agreed to increase his payments by $50 per month.
Respondent's 1969 petition to modify the divorce decree and reduce child support payments was dismissed on the court's motion for want of prosecution on March 31, 1978. In 1978, the court terminated its March 1977 consent decree, as the youngest child had attained majority.
Testimony of the February 7, 1983, hearing may be summarized as follows. Respondent testified that his 1967 income was $7,581.80. Thereafter his income fell to less than $5,000 in 1968; $4,542 in 1969; $5,178.24 in 1970; and less than $5,000 in 1971. He said these economic reversals led him to file his 1969 petition to modify the divorce decree. After the May 1969 discussion regarding the petition, he understood he was to pay $150 monthly, or $50 per child per month. He said he had not been aware that the court's docket entry indicated that the child support payments would be reduced for a three-month period only. He said immediately after the May 1969 proceeding, sitting on a bench outside the conference room, petitioner had agreed that he could pay $50 per child per month.
On cross-examination, respondent acknowledged his letter to petitioner dated August 20, 1969, mailed from Milan, New Mexico, wherein he stated, "`I'd like to come back to Illinois sometime but you started in last Sunday about seeing your lawyer, so I had nothing to do but leave. * * * If you can ever see your way clear to see your lawyer to get these things settled, I'll be back and keep paying what I can afford.'" Respondent said he had been to court with petitioner so many times that he did not know the dates or why he had been there. He denied that petitioner had tried to collect child support from him, but recalled being in court on one occasion when she had asserted he had not made a payment and he had produced a check.
In 1980, respondent had sold two acres purchased at $20,000 for $58,500. In 1982, he had acquired warehouse rental properties for about $26,000. Respondent owns and operates Meade Sunoco in Urbana, Illinois. In 1981 he had done approximately $287,000 worth of business. His 1981 income tax return showed he had claimed depreciation on $84,370 worth of personal property, tools, and equipment, including five motor vehicles. As this included leased trucks, respondent estimated that he owned about $45,000 worth of the figure depreciated. He owned his home, valued at $30,000, clear of mortgage, and a building on I-74.
In May 1969, petitioner had agreed with respondent and his counsel to reduced child support payments for a period of three months. She testified that in efforts to collect the child support as it became overdue, she had gone to the State's Attorney's offices in Champaign and Montgomery counties, and to the attorney who had represented her in the divorce. She had made no demand on respondent for the money, as there had been no communication between them. Referring to her failure to include a claim for the arrearages in her 1977 action to increase child support for the remaining minor, she said she had had enough trouble getting money from respondent month to month.
The trial court's order on the rule to show cause, filed May 5, 1983, found as follows:
"By consent decree entered in * * * Case No. 77-L-168, on March 23, 1977, the defendant was ordered to pay $50 twice monthly for [the minor's] support, with that decree expressly stating that its entry would `not supercede any previous order issued by any other court, but the amounts for a particular period paid pursuant to such previous order shall be credited against amounts accruing or accrued for the same period under both.' * * *
The evidence fails to establish that the Court ever modified the original order providing for $250 per month in child support on an unallocated basis. Moreover, the Court is persuaded that the plaintiff did not agree to reduce the defendant's support obligation at any time. The record affirmatively supports the conclusion that the most that the plaintiff agreed to do was to suspend enforcement for a limited period and to [permit] an arrearage in support to accumulate during this period. It is now entirely self-serving for the defendant to claim that any other agreement existed. He clearly knew how to petition the Court for a reduction, initiating such a proceeding but failing to pursue it. He cannot now claim that the plaintiff is barred by waiver, estoppel or laches from collecting past due child support. It would more likely be true that the defendant is guilty of laches for sitting on his right to seek a court order reducing his support obligation. The Court is without authority to retroactively modify child support and the defendant may not unilaterally reduce unallocated child support as each child reaches majority. In re Bjorklund, 88 Ill. App.3d 576 (1980).
The evidence fails to establish that the defendant is in willful and contumacious contempt of Court for his ...