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06/02/88 In Re Marriage of Donna Marie Kennedy

June 2, 1988

IN RE MARRIAGE OF DONNA MARIE KENNEDY,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Petitioner-Appellant, and STEPHEN DEAN KENNEDY,

Respondent-Appellee

525 N.E.2d 168, 170 Ill. App. 3d 726, 121 Ill. Dec. 362 1988.IL.863

Appeal from the Circuit Court of St. Clair County; the Hon. Earle McCaskill, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Petitioner, Donna Kennedy, and respondent, Stephen Kennedy, were married on June 7, 1969. During their marriage, petitioner and respondent adopted one child, Darin Kennedy, born on September 21, 1968. On July 24, 1980, the circuit court of St. Clair County ordered the dissolution of the marriage of petitioner and respondent. The judgment of dissolution provided, inter alia, that petitioner would receive custody of the child, respondent would receive reasonable visitation rights, and respondent would pay child support of $40 biweekly to petitioner. On June 28, 1982, the circuit court modified the child support by raising it to $50 per week.

On May 15, 1986, petitioner filed an action with the circuit court of St. Clair County in which she pleaded for the court to: (1) find that respondent was in arrears on his obligation to pay child support and order him to pay the arrearage; (2) order that respondent continue to pay child support to petitioner until Darin Kennedy, the only child of the couple, graduated from high school, and direct that respondent increase the amount of the child support to at least 20% of his net income; (3) order that respondent pay petitioner's attorney fees; and (4) order the division of respondent's military retirement plan and the payment of an equitable portion to petitioner.

The circuit court of St. Clair County filed two separate orders in this action. On September 30, 1986, the court directed respondent to cease paying child support retroactive to September 21, 1986, Darin Kennedy's eighteenth birthday, ordered respondent to contribute $150 per month towards the child's educational expenses subsequent to that date, and ordered respondent to pay an arrearage of $733.40 in child support. On October 27, 1986, the circuit court denied petitioner's plea for attorney fees, and dismissed her petition to reopen the judgment of dissolution and apportion respondent's military pension.

Petitioner appeals, contending that: (1) the trial court's denial of her petition for attorney fees is in error as a matter of law because respondent's failure to pay child support was without cause or justification, and thus made the trial court's award of these fees mandatory; (2) the trial court erred in denying the petitioner's plea for a continuation of child support because the child is mentally disabled under section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 513), and the court erred in denying her request to increase the amount of the support to 20% of respondent's net income; (3) the trial court erred in directing the sum that respondent must contribute to Darin Kennedy's educational expenses; and (4) the trial court erred when it dismissed petitioner's plea to award her a share of respondent's military retirement pension. In her appeal, petitioner requests that we reverse the judgment of the trial court on the issues of attorney fees, child support, and the sum allotted to Darin Kennedy's educational expenses, and requests that we reverse the trial court's dismissal of her plea to divide respondent's military pension and remand the cause to award her a proper share of the pension.

Regarding petitioner's first issue on appeal, that she is entitled to attorney fees under section 508(b) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 508(b)) because the respondent's failure to pay the full amount of his child support obligations was without cause or justification, the trial court found that respondent's failure to pay was not willful and contemptuous and thus the court lacked the discretion to award the fees under section 508(b) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 508(b)).

Section 508(a) of the Act is the general provision empowering a trial court to award attorney fees in dissolution proceedings. (Ill. Rev. Stat. 1985, ch. 40, par. 508(a).) Section 508(b) of the Act is the provision for the award of fees relating to child support proceedings, and provides that

"[in] every proceeding for the enforcement of an order or judgment for child support in which relief is granted to the parent having custody of the child and the court finds that the failure to pay child support was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the custodial ...


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