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04/16/87 In Re Marriage of Marianne Piccione

April 16, 1987

IN RE MARRIAGE OF MARIANNE PICCIONE, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and JOHN J. PICCIONE, Respondent-Appellee

511 N.E.2d 1157, 158 Ill. App. 3d 955, 110 Ill. Dec. 837 1987.IL.503

Appeal from the Circuit Court of Du Page County; the Hon. Michael Galasso, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal arises from orders entered in post-judgment proceedings for increased child support and attorney fees. Marianne Piccione (petitioner) brought a petition for an increase in child support and for attorney fees. The trial court granted petitioner an increase in support and reserved judgment on attorney fees. Petitioner sought reconsideration of the support order, contending that the increase was too low. The trial court denied reconsideration. The trial court subsequently denied attorney fees. Petitioner appeals from both orders. We affirm.

Petitioner and John J. Piccione (respondent) were divorced pursuant to a judgment of dissolution of marriage entered on July 1, 1981. At the time of the judgment, the parties had three children. The parties entered into a property settlement agreement which provided, inter alia, that respondent pay $1,500 per month in child support for the parties' three children. On November 29, 1982, an agreed order modifying judgment was entered which required respondent to pay, inter alia, an additional $200 per month as unallocated child support. The additional $200 was consideration for petitioner's waiver of the right to borrow from the children's trust fund, provided for in the property settlement agreement.

On November 21, 1984, petitioner brought a petition for post-judgment relief seeking an increase in child support and an award of attorney fees. Petitioner's attorney at this time was Howard W. Broecker. On March 4, 1985, Broecker filed a substitution of attorneys and petition for attorney fees. On May 8, 1985, the court entered judgment in Broecker's favor against petitioner and respondent for attorney fees and costs in the amount of $1,000 and reserved the issue of enforcement and allocation of the judgment pending final Disposition of the support petition. Petitioner then hired attorney Lyle Haskin to represent her. Haskin was subsequently disqualified, and petitioner hired the law firm of Jon Beermann & Associates, Ltd.

The trial court conducted hearings on petitioner's petition to increase support on December 17 and 20, 1985, and January 17, 1986. The court heard testimony and received evidence which established the following facts.

Both petitioner and respondent have remarried. Petitioner was remarried in May 1985. Respondent was remarried in June 1982. The parties' youngest child, Lianne Piccione (Lianne), born October 17, 1977, was diagnosed at six weeks of age as having hydrocephalus, a congenital defect commonly known as water on the brain. At that time, she was fitted with a shunt leading from the right lateral ventricle of the brain to the abdominal cavity to drain out the spinal fluid and thereby relieve the pressure on her brain. The shunt is still in place. At age two, Lianne began having seizures. The seizures consisted of head drops which lasted from 3 to 20 seconds. They ranged from a minor, glassy stare to a temporary loss of consciousness. Lianne would experience 20 to 100 seizures daily. Since July 1984, she has been taking medication to control her seizures. The medication is administered orally four times daily.

Various witnesses, including Lianne's teachers, baby-sitters, family members, and medical personnel, testified regarding Lianne's progress over the years and future needs. The testimony indicated that as recently as 1984, Lianne was still experiencing frequent seizures, was not well coordinated, could not identify colors or letters, and could not count. Petitioner testified that Lianne was difficult to handle, had no sense of cleanliness, and sometimes required carrying. However, petitioner further testified that Lianne has fewer seizures now than when she was younger. Respondent and his current wife testified that Lianne has been seizure-free since June 1985.

Further, testimony indicated that Lianne can now dress and undress herself, swim, roller skate, and although accompanied by someone else, she can brush her teeth and take care of her own bathroom needs. Lianne has also made progress intellectually and can occasionally recognize colors, numbers, and her own name. Petitioner testified that although she would like to begin using professional medical personnel as sitters for Lianne, she has been utilizing teenagers for that purpose for years. Petitioner introduced testimony of a nurse who concluded, after a 10-minute interview with Lianne, that a licensed nurse should be utilized to take care of her. Additional testimony indicated that neither the teenage sitters nor Lianne's teachers have had any trouble administering Lianne's medication. After hearing testimony from the witnesses, the trial court conducted its own in camera interview with Lianne.

Additional testimony received at the hearings indicated that respondent had custody of the three children, including Lianne, every Wednesday morning through Thursday night and on alternate weekends, beginning Friday night and running through Monday morning. Furthermore, it was established that respondent had the three children for a six-week period in fall 1985, during which time petitioner ...


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