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02/23/88 In Re Marriage of Marilyn Divarco

February 23, 1988

IN RE MARRIAGE OF MARILYN DIVARCO, F/K/A MARILYN GILLERAN,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Petitioner-Appellee, and JOSEPH S. GILLERAN,

Respondent-Appellant

522 N.E.2d 619, 167 Ill. App. 3d 1014, 118 Ill. Dec. 949 1988.IL.249

Appeal from the Circuit Court of Cook County; the Hon. William E. Peterson, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Respondent, Joseph Gilleran (Husband), appeals from the trial court's rulings on various petitions brought by Marilyn Divarco, F/K/A Marilyn Gilleran (Wife), against him for payment of arrearages of child support and for contribution towards the college expenses of their two children. The trial court found the Husband $23,490 in arrears on child support and entered orders directing him to contribute certain amounts towards the college expenses of both children.

The Husband and Wife were divorced in Cook County on July 31, 1973. The decree awarded the Wife custody of their two children, a son and a daughter, and required the Husband to pay "family" support at a minimum sum of $60 per week.

Both the Husband and Wife remarried. At the time of the proceedings at issue, their son was 19 years old and their daughter was 17 years old. The Wife has a seven-year-old child by her second marriage and is unemployed. The Husband is employed at a salary of $31,000 per year and supports his new wife, their two-year-old son and a seven-year-old stepdaughter.

In her petitions, the Wife sought to recover delinquent child support for the period from June 1978 to August 1985, plus interest, and to modify the "Judgment of Divorce" to obtain contribution from the Husband for their children's college expenses.

The Husband responded with an affirmative defense, asserting that at all times prior to June 1978, he paid child support as required under his judgment for divorce and that on June 6, 1978, the Wife and her new husband requested that he give up his rights to visitation in exchange for the promise that he would not be required to pay child support in the future. He further alleged a complete financial inability to contribute towards the college expenses of his children.

On appeal, the Husband argues that the trial court's orders are against the manifest weight of the evidence; the trial court operated under a misapprehension as to the law, i.e., the erroneous belief that any such agreement had to be in writing; and the trial court abused its discretion in ordering him to contribute certain sums towards his children's college expenses.

The record contains the testimony of four witnesses on the question of child support arrearages. The Husband testified about several conversations he had with his Wife in 1978. The Wife told him not to visit the children anymore because he was confusing them and "she didn't need his money anymore" because she had a new life. When he went to visit or pick the children up for visitation, the Wife's new husband told him to stay away and threatened him. At one point, the Wife told him that she wanted him to give the children up for adoption but he told her ...


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