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In Re Marriage of Stanley

OPINION FILED JUNE 13, 1985.

IN RE MARRIAGE OF DAWN S. HOENER STANLEY, PETITIONER-APPELLEE, AND STEVE K. HOENER, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Adams County; the Hon. Robert W. Cook, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 16, 1985.

The respondent, Steve K. Hoener (Steve), appeals various aspects of an order concerning maintenance, child support, attorney fees, and owelty entered subsequent to an order dissolving his marriage to the petitioner, Dawn S. Hoener (Dawn).

Following the dissolution of the parties' marriage on June 4, 1981, the court entered a series of orders pertaining to property disposition, child support and custody, and maintenance, as well as attorney fees, marital debts and owelty.

In order to place this case in proper perspective, it is necessary to view in part the actions and orders of the trial court in a somewhat reverse order. This will better dispose of some of the issues and will also tend to moot some of these same issues raised on appeal.

The order, June 14, 1984, appealed from was entered by the trial judge on the defendant's motion for reconsideration and on all other pleadings filed by the parties from the date of the order of October 21, 1983, to the May 16, 1984, hearing date. The trial court took the matter of all motions under advisement on May 16, 1984, and entered the order on June 14, 1984.

Certainly, in a hearing of reconsideration, the court has the opportunity to hear additional evidence which will either further justify the original order or be reason for change. If the court requires additional matters to be brought or pleadings filed during the process of reconsideration, it is appropriate.

On February 15, 1984, the trial court at a hearing on Steve's motion for reconsideration ordered the parties to submit current family budgets, Steve was granted leave to file a petition to modify based upon remarriage of Dawn, Dawn was granted leave to file a petition for increase of child support, and Steve was granted leave to file an affidavit concerning his payments of alimony, child support, maintenance, and owelty (an outdated term not now used, denoting a property division equalization payment. See Black's Law Dictionary 996 (5th ed. 1979)). Pursuant to this order, Dawn, on March 14, 1984, filed a petition to increase child support and her family budget, and Steve filed his petition to decrease child support and maintenance based upon the remarriage of Dawn and his family budget. On April 5, 1984, Steve filed an affidavit as to payments of child support, maintenance, and owelty.

In the order filed October 21, 1983, the court found that Dawn was, at that time, cohabiting with another and on that basis terminated Steve's obligation to provide Dawn with maintenance, with effect from the date of the order. The court further found, however, that the elimination of his maintenance obligation increased Steve's ability to provide child support and on that basis increased his child support obligation to $260 per month. Additionally, Dawn was awarded possession of the marital residence as child support until the children's emancipation.

After noting that it had, in its December 23, 1982, order, reserved the question of attorney fees, and that Dawn sought attorney fees "in connection with the present proceedings," the court awarded Dawn the amount of $750 "against any and all attorney's fees incurred by [Dawn] in this proceeding to date." Furthermore, the court ordered Steve to execute in Dawn's favor a note and mortgage on the marital residence in the amount of owelty, child support, and maintenance arrearages. If Steve did not pay Dawn the $750 for attorney fees within 30 days of the order, that amount was to be added to the amount of the note and mortgage. Finally, noting that Steve had not seen his children for many months, the court modified a prior order by limiting Steve's visitation to each Wednesday from the end of the school day until 8 p.m. and every other Saturday evening from 4 to 8 p.m. Upon Steve's exercising visitation on this schedule for four consecutive weeks, visitation on every other weekend was to be expanded to extend from 10 a.m. Saturday to 8 p.m. Sunday.

It is clear from reading the record in this case that the trial judge did yeoman's work in attempting to resolve all of the problems between the parties.

The defendant asserts eight issues on appeal: (1) Whether the trial court erred in modifying the respondent's child support obligation without a petition's having been filed; (2) whether the trial court erred in modifying the respondent's visitation rights without a petition's having been filed; (3) whether the trial court erred in allowing the petitioner to maintain possession of the marital residence despite her cohabitation and subsequent remarriage, thereby divesting the respondent of a vested property right contrary to the law of the State of Illinois; (4) whether the trial court erred in awarding $750 in attorney fees to the petitioner in light of the relative financial resources of the parties; (5) whether the trial court erred in awarding $750 in attorney fees to the petitioner when such attorney fees were precipitated by the petitioner's cohabitation with another person on a resident, continuing conjugal basis; (6) whether the trial court erred in not terminating maintenance retroactively to the time of the filing of the petition for modification; (7) whether the trial court erred in the determination and setting of owelty, child support, and maintenance arrearages; and (8) whether the trial court erred in ordering the respondent to execute a note and mortgage on the marital residence in favor of the petitioner as security for the payment of attorney fees and arrearages in owelty, child support, and maintenance.

Steve's first allegations of error are that when it entered its October 23, 1983, order, the trial court improperly increased his child support obligation and altered his visitation rights, because, at the time of the order, there were no petitions on file requesting such relief. The events which resulted in the October 23, 1983, order began with Steve's filing a petition on February 4, 1983, requesting termination of his maintenance obligation, a change in the children's custody to himself, sale of the marital residence, and possession of the residence until its sale. This petition further requested that "all ancillary matters concerning support, health needs and other matters relating to the children be so modified as the court deems appropriate and just." The basis for these requests was Dawn's alleged cohabitation with another on a resident, continuing conjugal basis, which created an environment that Steve alleged seriously endangered the children's moral well-being. On the same date, Steve filed a petition stating that Dawn had intentionally interfered with his visitation rights and had refused to allow him to visit his children. This petition requested that Dawn be found in contempt, that she be ordered not to interfere with and to cooperate with all future visitation by Steve, that Steve be awarded reasonable attorney fees with respect to the petition, and that he "have such other and further relief as the court deems appropriate and just."

At the hearing on September 8, 1983, the following dialogue occurred:

"MR. TIMMERWILKE [Steve's attorney]: We have a show cause on the visitation, and I believe that that will also be covered today; that there has been intentional frustration on the part of Mrs. Hoener to allow visitation with the children for Mr. Hoener.

THE COURT: Is that correct, Mr. Schuering, those are the only issues?

MR. SCHUERING [Dawn's attorney]: Yes, your Honor, and our petition that we have filed to show cause on the support.

THE COURT: On the arrearages?

MR. SCHUERING: I think the whole thing. I think the question of support and maintenance are also set, you know, for review. We are requesting that support, in fact, be increased pursuant to the last petition that we filed that is set for review, so I think the Court basically is considering the entire matter on support, maintenance, visitation, change of custody, the whole ball of wax."

(The record does not reflect the filing by Dawn of any petition for increased child support subsequent to the December 23, 1982, order other than the March 14, 1984, petition.) The hearing was subsequently continued to ...


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