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09/01/87 In Re Marriage of Margaret A. Winters

September 1, 1987



Archer, Petitioner-Appellee, and JAMES E. WINTERS,


512 N.E.2d 1371, 160 Ill. App. 3d 277, 111 Ill. Dec. 734 1987.IL.1275

Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.


PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH and INGLIS, JJ., concur.


James E. Winters (James) appeals the entry of the judgment of the circuit court of Winnebago County awarding an increase in support for his adult daughter Angela pursuant to a petition for modification brought by his former wife, Margaret A. Archer (Margaret), under section 513 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act). Ill. Rev. Stat. 1985, ch. 40, par. 513.

The parties were divorced in 1972. They have two daughters, Angela born in 1967 and Diane born in 1969. In 1986, Margaret filed a petition to modify the 1972 decree to provide for the continuation and increase of child support for Angela although she had attained her majority. Margaret alleged that Angela suffers from a mental handicap entitling Angela to post-minority support. The petition also sought a continuation of support for Diane when she turns 18 by reason of the continuation of her education by attending college. The trial court ruled that the latter request was untimely as Diane had not yet reached majority. Therefore, continued and increased support for Diane is not an issue in this appeal. Margaret sought a total increase to 25% of James' net earnings for the continued support of both children.

The trial court found that the parties' daughter Angela, while having attained her majority, was mentally disabled. The court ordered that James pay support for Angela, in spite of her majority, by reason of her mental disability, in the amount of $155.27 per week, being 20% of James' weekly net income of $776.35.

James, appealing pro se, contends that: (1) since the divorce act in effect at the time of the parties' divorce in 1972 did not provide for the payment of child support for a mentally disabled child, the entry of the modification order in the instant case was beyond the jurisdiction of the circuit court; (2) since Angela is an adult, she is no longer in the legal custody of Margaret, who, therefore, has no standing to claim post-minority child support for Angela; (3) the trial court erred in not dismissing the amended petition wherein it alleged only that Angela suffered a "mental handicapp [ sic ]" and not that she was "mentally . . . disabled," the precise language of the statute (Ill. Rev. Stat. 1985, ch. 40, par. 513(a)); (4) James has been denied due process of law because a duty has been imposed upon him to support his adult child because he is a divorced father when that duty is not imposed upon fathers who are not divorced and he was not given notice that he might be subjected to payment of adult child support when the 1972 divorce claim was originally filed; (5) the equitable doctrines of laches, equitable estoppel and res judicata bar the assertion of a claim for post-minority child support 15 years after the entry of the original divorce decree; (6) the finding of the trial court that Angela has a mental disability was against the manifest weight of the evidence; (7) the petition failed to allege a substantial change in circumstances as required by section 510 (Ill. Rev. Stat. 1985, ch. 40, par. 510); (8) counsel for Margaret took unfair advantage of James, a pro se litigant, by "smuggling" into the record an amended petition for modification so as to cure an alleged fatal defect in the original petition wherein it failed to allege Angela was mentally "disabled," by filing contempt proceedings against James for failure to pay alleged arrearages in child support and then removing the case from the docket the day the case was to be heard, thus inconveniencing James, and by harassing James during discovery (James claims the latter three issues alleged violations of the Code of Professional Responsibility, Supreme Court Rules 7-106(c)(5)(7) and 7-106(d) (107 Ill. 2d Rules 7-106(c)(5)(7), (d))); and (9) that the trial Judge violated the Standards of Judicial Conduct, Rule 61(c)(5) (103 Ill. 2d R. 61(c)(5)), by being partial, biased and prejudiced in allowing improper amendment of Margaret's pleadings and the attachment of exhibits thereto, by displaying obvious leniency to Margaret's counsel and by ignoring James' pleadings, motions and unobjected to requests for discovery.

Margaret characterizes this appeal as raising the single issue of whether the trial court abused its discretion: (1) in finding that Angela was mentally disabled, and (2) by ordering James to pay 20% of his net earnings as child support. She argues that the judgment of the trial court should only be reversed where an abuse of discretion occurred, that is, only where it can be said that no reasonable person would adopt the view taken by the trial Judge. (See In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.) Margaret maintains that the evidence of Angela's mental disability was such that no reasonable person could adopt a view different from that of the trial court, and that the judgment of the trial court should be affirmed.

An examination of the report of proceedings discloses that James made no objection to the evidence adduced by Margaret during the presentation of her case in chief. Thus, we conclude that James has waived any issue relating to the admission of evidence. Nor do we view James' general request of the trial court that he be considered to have objected to all issues which he may wish to raise on appeal as constituting a sufficient objection to preserve his right to appeal on any issue to which he failed to timely object in the trial court. An objection must be made to alleged incompetent evidence at the time of its admission. (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279.) The failure to object at the original proceeding constitutes a waiver of the right to raise the issue on appeal (E&E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664), although an objection to the court's jurisdiction is not waived by the prior failure to make the objection. Carillo v. Jam Productions, Ltd. (1983), 97 Ill. 2d 371, 454 N.E.2d 649.

A litigant appearing pro se in the appellate court is obliged to follow the same rules as a litigant represented by counsel. (Biggs v. Spader (1951), 411 Ill. 42, 103 N.E.2d 104.) It is apparent from James' brief that he has not followed the supreme court rules regulating appellate practice. (107 Ill. 2d R. 301 et seq.) The result is that the cost of research on the multitude of issues he raises has fallen upon the court. This results in the taxpayer paying for that which James is obligated to provide the court. Further, the inadequacy of his brief imposes a burden upon appellee and, conceivably, encourages appellee to claim a lack of understanding and, thus, affords ...

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