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05/10/88 In Re Marriage of Rodney Joseph Pitts

May 10, 1988

IN RE MARRIAGE OF RODNEY JOSEPH PITTS, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and TERRI JEAN PITTS, Respondent-Appellant

523 N.E.2d 664, 169 Ill. App. 3d 200, 119 Ill. Dec. 908 1988.IL.724

Appeal from the Circuit Court of Madison County; the Hon. Paul E. Riley, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. LEWIS and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Respondent, Terri Pitts, appeals from a judgment of the circuit court of Madison County, contending that: (1) the circuit court's denial of her request for child support during visitation was an abuse of discretion; (2) the circuit court's order requiring the petitioner, Rodney Pitts, to pay 40% of the mortgage installments and insurance premiums due from September of 1985 to the date of the sale of the home, rather than the entire sum of the mortgage installments and insurance premiums as they came due, was an impermissible modification of a property distribution in violation of section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)); and (3) the circuit court's denial of respondent's request for attorney fees was an abuse of discretion. For the reasons which follow, we reverse the circuit court and remand this cause for determinations consistent with this opinion.

Petitioner and respondent were married on August 23, 1969. Their marriage produced two children, Jason Pitts, born November 12, 1973, and Alaina Pitts, born April 1, 1978. On September 10, 1982, the circuit court of Madison County issued a judgment of dissolution of the marriage of petitioner and respondent. The judgment of dissolution provided, inter alia, that respondent would receive custody of the children and that petitioner would pay to respondent the sum of $300 per month for the support of the minor children. The judgment of dissolution incorporated a property settlement, custody and visitation agreement whereby the marital home, owned in joint tenancy by the parties, would remain in respondent's possession until one of the contingencies enumerated in the settlement agreement occurred. The portions of the agreement relevant to this appeal are as follows:

"I. * * *

4. The parties own as joint tenants the real estate described as 3304 Morkel Drive, Godfrey, Illinois . . .

5. The wife shall be permitted to reside in the marital residence until the earliest to occur of the following:

A. The youngest of the children completes her college education.

B. The youngest of the children reaches age twenty-two (22).

C. Both children permanently terminate their college education, if they do so.

D. The wife remarries.

E. Both children become emancipated.

F. The wife cohabits with a male while unmarried to said male.

6. With regard to said real estate:

A. The husband agrees to pay all mortgage installments at Home Savings & Loan as they are due from this date forward until one of the contingencies named in paragraph 5 occurs. . . .

B. The husband agrees to hold the wife harmless from the payment of said mortgage installments.

C. The husband agrees to pay all real estate taxes on the aforesaid residence as they become due and payable until the earliest to ...


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