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05/11/88 In Re Marriage of Barbara Stadheim

May 11, 1988

IN RE MARRIAGE OF BARBARA STADHEIM, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

and ROLF STADHEIM, Respondent-Appellant

523 N.E.2d 1284, 170 Ill. App. 3d 19, 120 Ill. Dec. 373 1988.IL.727

Appeal from the Circuit Court of Cook County; the Hon. Ronald W. Olson, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Respondent, Rolf Stadheim, appeals from certain orders of the trial court entered as a result of petitioner's, Barbara Stadheim's, petition to amend the parties' divorce decree. On appeal, Rolf assigns as error the trial court's: (1) sua sponte nullification of the unallocated maintenance and child support provision of the parties' settlement agreement; (2) order increasing child support payments; and (3) assessment of Barbara's attorney fees against him. We affirm in part and reverse in part.

Barbara and Rolf Stadheim were married in December 1964 and divorced in October 1979. At the time Barbara and Rolf were divorced, their four daughters were ages 13, 11, 9 and 6. Pursuant to the terms of the parties' settlement agreement, Barbara and the children would remain in the marital home until the youngest daughter reached the age of 18. The house would then be sold and the proceeds divided equally. In addition to various other initial and continuing expenses, the agreement further required Rolf to provide Barbara and the children with unallocated maintenance and child support (family support) in the amount of $28,000 per year, with yearly increases of 5%. Moreover, as each child reached the age of majority, the family support payments would decrease by 20%.

In November 1983, Barbara filed a petition for an increase in the amount of family support and for an order requiring Rolf to pay for the college education of the parties' eldest child. A hearing was held regarding Barbara's petition on January 3, 1985. At the hearing, it was established that Rolf was paying for the parties' eldest daughter's tuition. The parties also testified concerning Barbara's contention that she and the children were entitled to an increase in family support.

Thereafter, the trial court entered an order requiring Rolf to continue paying for the college expenses of his oldest daughter, including "reasonable round-trip transportation expenses for holiday and semester breaks." With respect to Barbara's claim for increased family support, the court sua sponte vacated a portion of the parties' settlement agreement to eliminate both the 20% reduction in family support as each daughter reached majority and the corresponding 5% yearly increase. The trial court then ordered that the yearly amount of family support be increased from $33,120 to $42,000. The trial court also ordered Rolf to pay Barbara's attorney fees of $5,800.

Rolf initially assigns as error the trial court's sua sponte striking of that portion of the parties' settlement agreement relating to family support.

The provision of the agreement at issue here states in relevant part:

"The husband shall pay to the Wife, unallocated maintenance for the Wife and support of the children of the parties (hereinafter called 'family support') the sum of $35,000 for the first year following execution of this agreement and $28,000 per year for each subsequent year payable in 24 equal installments on the 1st and 15th of each month. In addition, the aforesaid yearly payment shall be increased by $1,440 on the anniversary date of this agreement each year to compensate for the effects of inflation and the increased needs of the children as they mature.

Upon the death, attainment of age 18, or other emancipation of each child, the family support shall be reduced by 20% of the amount stated for the second and subsequent ...


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