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In Re Marriage of Carls

OPINION FILED DECEMBER 23, 1986.

IN RE MARRIAGE OF CATHERINE CARLS, PETITIONER-APPELLEE, AND JEFFERY THOMAS CERESA, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of La Salle County; the Hon. Donald E. Norton, Judge, presiding.

PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Respondent, Jeffery Thomas Ceresa, appeals from an order entered by the circuit court of La Salle County on March 27, 1986, which denied his petition to reduce the amount of his payments of child support.

The parties' marriage was dissolved on February 15, 1985. The respondent was ordered to pay $60 per week for support of his minor daughter Nicole and $45 per week as and for rehabilitative maintenance to the petitioner, Catherine. The order further provided that after a 12-month period, or sooner if the petitioner should remarry, maintenance payments were to terminate and child-support payments would be increased to $75 per week.

At the time of the dissolution, the respondent was residing in Oglesby, Illinois, and employed by Consolidated Freightways earning $13 per hour and his medical insurance was paid by the employer through the Teamsters Union. Respondent had maintained this employment for approximately seven years.

In August of 1985 respondent voluntarily terminated his employment and moved to Florida where his parents, a brother, sister-in-law, and nephew resided. Respondent resided with his parents, where he received meals and laundry service. This room, board, and laundry service was provided at no cost to respondent. Respondent does not possess an automobile but has the use of a 1977 Chrysler, which is provided by his parents.

In Florida the respondent, at the time of the hearing, had secured employment with Fort Meyers Express, and his earnings were to be $5 per hour. He had previously worked for another company for the same rate of pay.

The respondent's petition to reduce child-support payments is predicated upon a change of circumstances, to wit, his reduced income resulting from a change of employment. As previously stated, respondent's petition was denied, and the issue in this appeal is whether such denial by the trial court was proper or improper.

The Fifth District Appellate Court, in addressing this issue, made the following observation:

"While substantial economic reverses resulting from employment or investments are proper circumstances in considering whether support obligations should be reduced or terminated, such changes in economic circumstances must be fortuitous in nature, and not the result of deliberate action by the party seeking the reduction. (Coons v. Wilder (1981), 93 Ill. App.3d 127, 132, 416 N.E.2d 785.) Respondent's resignation from his job in this case was entirely voluntary, occurred within two months of the judgment of dissolution, and came at a time when respondent still had over five months remaining in his term of employment. Under these circumstances, we agree with the trial court that the voluntary change in respondent's economic conditions did not mandate abatement of his maintenance obligations." In re Marriage of Stephenson (1983), 121 Ill. App.3d 698, 700-701, 460 N.E.2d 1, 3.

In the instant case the trial court acknowledged that the reduction of respondent's income constituted a substantial change of circumstances, but such change was not a fortuitous one, rather one that was deliberately brought about by the respondent. The trial court further noted that respondent, prior to his move, was well aware of the prevailing wage in the State of Florida, yet he gave up a job paying $13 per hour in Illinois to accept a $5-per-hour job in Florida.

The record in this case fully supports the findings and observations of the trial court. The sole reason that respondent gave for his move was that he wanted to be with his family, which included his mother, father, brother, sister-in-law, and nephew. During cross-examination of the respondent, he was questioned as to whether he had any knowledge as to whether he would be improving his employment at the time he was leaving the Oglesby area to go to Florida. The respondent made the following reply:

"Well, it's kind of hard to improve on what they were paying here, and with the union scale and that. I assumed it would be lower, but I wasn't sure just how low it would be."

The respondent further testified to the effect that prior to his move he knew that his brother found employment in Florida cutting grass for $5 an hour.

The respondent, at age 27 with seven years' experience, was well employed, earning $13 an hour or $520 a week, with health insurance coverage paid by his employer through his union. For the sole reason that he wanted to be with his family and, as he stated, "I felt I would be happier there," he relocated himself in another ...


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