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03/09/88 Deborah Jean Wilson, N/K/A v. Charles Lee Wilson

March 9, 1988





520 N.E.2d 1230, 166 Ill. App. 3d 1035, 117 Ill. Dec. 879 1988.IL.330

Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.


JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.


The original decree of dissolution of marriage was entered in this case on April 26, 1974. The decree provided that Deborah Jean Wilson, the plaintiff, was to have the care, custody, control and education of the sole minor child of the parties, Chelsea Nicole Wilson, who had been born October 6, 1972. The original decree of dissolution provided that defendant was to pay to plaintiff the sum of $35 per week for child support.

On September 28, 1981, the circuit court entered an order providing for the modification of the original decree by stipulation between Deborah Jean Fredenberg, formerly Deborah Jean Wilson (plaintiff) and Charles Lee Wilson (defendant). The stipulated order provided that defendant would pay to plaintiff the sum of $200 per month for the living expenses and support needs and obligations of the minor child of the parties.

In September 1986, the plaintiff filed a petition to modify the child support order. On December 23, 1986, the petition to modify came on for hearing. Both of the parties were present in open court. Witnesses were sworn and evidence heard. Statements of counsel were presented and the court took the case under advisement. Thereafter, the court issued a letter decision dated January 9, 1987. An order of court modifying the original decree was entered by the court on January 27, 1987, providing that child support be increased from $200 per month to $300 per month and that defendant pay $300 towards the attorney fees incurred by the plaintiff in presentation of her petition for modification.

Thereafter defendant filed his post-trial motion on February 5, 1987. On June 29, 1987, a letter decision denying the post-trial motion was entered by the trial Judge. Defendant filed a timely notice of appeal from the trial court's order on July 29, 1987. The first argument raised by defendant on appeal is that the trial court abused its discretion by increasing his child support obligation from $200 to $300 per month. As the Illinois Supreme Court stated in In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233:

"The modification of child-support payments lies within the sound discretion of the trial court, and the trial court's modification will not be disturbed on appeal, absent an abuse of discretion. (In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 73; In re Marriage of Edelstein (1980), 82 Ill. App. 3d 574, 576; Imes v. Imes (1977), 52 Ill. App. 3d 792, 796.)"

Pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 510), the provisions of any judgment respecting maintenance or support "may be modified . . . only upon a showing of a substantial change in circumstances."

Defendant relies upon Harner v. Harner (1982), 105 Ill. App. 3d 430, 434 N.E.2d 465, for the proposition that in order for modification of child support to be granted, the movant must establish both that the needs of the child and the supporting parent's ability to pay have increased, and that the proof of increased needs is no longer met by showing the passage of time or the increased age of the child. However, as it is stated in the supplement to historical and practice notes to section 510 of the Act:

"The traditional rule [is] that to establish grounds for modification of a child support order it is necessary to establish an increased need by the children and a corresponding increased ability of the non-custodial parent to pay. See, e.g., Kelleher v. Kelleher, 67 Ill. App. 2d 410, 214 N.E.2d 139 (3d Dist. 1966). In recent years a more flexible standard has been used by the Appellate Court for the Third District under which a material change in circumstances may be established by proof of a 'substantial imbalance between the child's needs and the parent's support capabilities.' See, e.g., In re Support of Sharp, 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279, 1283, 22 Ill. Dec. 581, 585 (3d Dist. 1978) and cases cited in the Historical and Practice Note to § 510(a) in the permanent volume, p. 699. See also Ingwerson v. Woeckener, 141 Ill. App. 3d 647, 490 N.E.2d 1008, 95 Ill. Dec. 916 (3d Dist. 1986) ('substantial imbalance' test clarified); In re Support of Luthy, 95 Ill. App. 3d 987, 420 N.E.2d 764, 51 Ill. Dec. 350 (3d Dist. 1981). The Appellate Court for the Fifth District in the case of In re Marriage of Daniels, 115 Ill. App. 3d 173, 450 N.E.2d 361, 70 Ill. Dec. 888 (5th Dist. 1983), like the Third District, has ceased using the Kelleher test (supra) and has ruled that although the needs of the child and the financial circumstances of the non-custodial parent are both 'important factors' in making the decision to modify child support, the court must consider all of the factors listed in section 505 of the Act. See also Giamanco v. Giamanco, 111 Ill. App. 3d 1017, 444 N.E.2d 1090, 67 Ill. Dec. 606 (5th Dist. 1982); In re Marriage of Raidbard, 87 Ill. App. 3d 158, 408 N.E.2d 1021, 42 Ill. Dec. 312 (1st Dist. 1980). In the case of In re Marriage of Bussey, 108 Ill. 2d 286, 483 N.E.2d 1229, 91 Ill. Dec. 594 (1985), the Supreme Court of Illinois added a further aspect to the rule, in holding that where the non-custodial parent admittedly has the ability to pay support in excess of the stated needs of the children, the court may order child support in excess of the needs, to enable the child to enjoy the standard of living he would have had if the marriage had not been dissolved. See § 505(a)(2)(c). The implication of this holding is that child support may be subject to modification based upon the obligor's increased ability to pay, whether or not the needs of the children have also increased." Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Notes, at 133 (Smith-Hurd Supp. 1987).

We agree with the foregoing interpretation of Bussey and the other cases cited in the foregoing excerpt from the historical and practice notes, and conclude that child support obligations may be increased pursuant to section 510 of the Act based upon the supporting parent's increased ability to pay, regardless of whether the child's needs have also increased. ...

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