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In Re Marriage of Erickson

OPINION FILED SEPTEMBER 23, 1985.

IN RE MARRIAGE OF TONI D. ERICKSON, A/K/A TONI D. FLESVIG, PETITIONER-APPELLANT AND ALAN R. ERICKSON, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Petitioner, Toni Erickson, currently known as Toni Flesvig, appeals from certain orders the circuit court of Du Page County entered in this post-dissolution proceeding. She raises four assignments of error in this court: (1) the trial court abused its discretion when it ordered respondent, Alan Erickson, to pay her $430 per month for child support; (2) a recent amendment to section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat., 1984 Supp., ch. 40, par. 505(a)), which took effect during the pendency of this appeal, requires that the cause be remanded for a redetermination of the child support; (3) the court below erred when it dismissed petitioner's petition for a rule to show cause; and (4) the trial court abused its discretion when it ordered respondent to pay only $445 of the fees of counsel the petitioner incurred in the post-dissolution matter.

On December 30, 1980, petitioner filed a petition for dissolution of marriage. Respondent filed a counterpetition for dissolution of marriage, which the trial court dismissed at his request. On September 10, 1982, the court below entered a judgment dissolving the parties' marriage. In its order, the court awarded custody of the parties' minor child to petitioner; ordered respondent to pay her $1,000 per month in unallocated maintenance and child support for the first 24 months and, thereafter, $800 per month as unallocated maintenance and support until the child became 18 years old; and divided the parties' marital property. In particular, among other things, the court awarded petitioner the former marital home, situated in Glen Ellyn, Illinois, and respondent a condominium that was located in New Hampshire. Also, the trial court ordered each party to pay one-half of the fees of counsel the petitioner incurred.

On February 8, 1984, respondent filed a petition for a redetermination or modification of unallocated maintenance and child support. The petition alleged that petitioner had remarried on November 20, 1983, and requested that the court eliminate maintenance as of November 20, 1983, and enter an award of support for the minor child.

Six days later, petitioner filed a petition for an order requiring respondent to show cause why he should not be held in contempt of court for his failure to pay the full $1,000 monthly sum in unallocated maintenance and child support. In her petition, petitioner admitted that she had remarried on November 20, 1983, and stated further that respondent had unilaterally reduced the monthly payment in question from $1,000 to $400 as of December 1, 1983. That same day, the trial court entered an order requiring respondent to show cause why he should not be held in contempt of court as a result of his failure to pay the $1,000 monthly sum for unallocated maintenance and support.

On May 23, 1984, the trial court held a hearing to adjudicate these matters. The evidence adduced at that time established that petitioner called respondent on November 17, 1983, to inform him that she was going to be remarried three days later. Petitioner was remarried on November 20. Respondent related that he tried to resolve the question of the amount of unallocated maintenance and support with his ex-wife. However, petitioner denied that respondent ever contacted her regarding this matter.

Prior to December 1, 1983, respondent had paid the full $1,000 monthly sum of unallocated maintenance and support. On that date, without a court order, he unilaterally reduced his monthly payment from $1,000 to $400; he paid petitioner the reduced amount from that date until the time of the instant hearing. According to petitioner, respondent was in arrears in the sum of $3,900 regarding the payment of unallocated maintenance and support. In addition, she admitted that she did not inform the court that she had remarried.

During the course of their marriage, the parties had one child, who was almost 16 years old at the time of the hearing. Respondent was self-employed as a sales representative for Techni-Cal of Camrio, California. In this position, he was guaranteed a monthly draw or gross salary of $4,500. However, he was required to repay his monthly draw from his sales commissions. In 1983, he drew $45,000 as salary, but earned only $15,332 in commission, leaving a deficit of $29,667. During the first five months of 1984, he drew $22,500 in salary, but made only $5,529 in commissions, for a debit of $16,170. The total amount he owes Techni-Cal as a result of those deficits is $46,638. Although he had not yet filed an income tax return for 1983, because he had received an extension of time within which to file, he stated that his gross salary for 1983 was $54,389. He related, in addition, that he incurred $17,000 in work-related expenses.

Respondent sold the condominium he owned in New Hampshire and experienced a $7,000 loss as a result of the sale. Currently, he does not own any real estate, a car, stocks, or bonds. However respondent has a checking account with a balance of $218. Also, he owns a sailboat that is encumbered with a loan in the sum of $29,900. Including this debt, respondent has existing debts amounting to $49,860. Respondent, who has remarried, has monthly expenses of $4,607. His current wife earns an annual gross salary of $25,500.

In March 1983, petitioner terminated her employment due to stress; at that time, she was making $12,000 per year. Recently, she has been looking for new employment, without success. Neither she nor her son has any assets, except the $1,500 she has in her checking account.

Petitioner and her son currently reside with her new husband, Robert Flesvig, and his son. Before moving in with her current spouse, she sold the marital home which the trial court had awarded her in the decree of dissolution. She related that her projected annual monthly expenses were $943, while those of her child amounted to $858. Based on those calculations, she requested $800 per month in the form of child support.

She listed as specific expenses for both herself and her child one-quarter ($88.35) of the monthly real estate taxes owing on her husband's home and one-quarter ($290.25) of the monthly mortgage payment due on Mr. Flesvig's residence. The testimony established that Mr. Flesvig owned the home prior to marriage to the petitioner and that he deducted from his income tax the interest payments associated with the mortgage. His marriage to petitioner did not increase either his monthly mortgage payment or his real estate tax liability. Petitioner did not know whether the title to her husband's home was in her name.

In 1983, Robert Flesvig received total wages in the sum of $36,922. His adjusted gross income for that year amounted to $34,690.

In its order of June 18, 1984, the trial court determined that, due to petitioner's remarriage, respondent was absolved from making maintenance payments from the date of her remarriage, November 20, 1983. Accordingly, the trial court ordered that maintenance was terminated on the date of her remarriage. In addition, the court modified the original judgment of dissolution of marriage by requiring respondent to pay monthly child support in the sum of $430 and made the support order effective nunc pro tunc to November 20, 1983. Also, the court decreed that the substance of the rest of his order rendered moot petitioner's petition for a rule to show cause and, therefore, declined to issue the rule.

Approximately two weeks later, petitioner filed a petition for the payment of the fees of counsel she incurred in the post-dissolution proceeding. After respondent filed a response to the petition for fees, the trial court held a hearing on July 3, 1984, to adjudicate the matter. Petitioner sought fees in the amount of $1,753.10. However, the court determined that reasonable fees of counsel were $445. After declaring that respondent had a far greater ability to ...


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