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02/10/89 In Re Marriage of Thomas A. Jackson

February 10, 1989

IN RE MARRIAGE OF THOMAS A. JACKSON, PLAINTIFF-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and DOROTHY FAYE JACKSON, Defendant-Appellant

534 N.E.2d 687, 179 Ill. App. 3d 479, 128 Ill. Dec. 505 1989.IL.174

Appeal from the Circuit Court of St. Clair County; the Hon. Sheila O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Dorothy Faye Jackson (Dorothy), filed a petition in the circuit court of St. Clair County alleging that her former husband, Thomas Jackson (Thomas), the plaintiff in the underlying divorce proceeding, was in arrears with regard to his child support payments for their two children. Thomas maintained that his reduction of his child support payments was proper because of three affirmative defenses, which were as follows: (1) that the parties had agreed at the time of the original divorce decree that child support should be $25 per week per child and that he was permitted to unilaterally reduce the child support upon his oldest child becoming emancipated; (2) that Dorothy should be estopped from seeking arrearage of the child support; and (3) that Dorothy's petition should be denied as she had "ratified" Thomas' reduction of the child support payments. Thomas also raised a counterclaim in which he sought a declaratory judgment from the court regarding the construction of the language of the parties' divorce decree. The circuit court dismissed Thomas' counterclaim and his affirmative defense that, at the time of the original divorce decree, the parties' had intended and had agreed that the amount of child support Thomas was to pay was to be $25 per week per child. Following a hearing, the circuit court denied Dorothy's petition, finding that she had "ratified the actions of the plaintiff in reducing the child support without leave of court." Dorothy appeals this order.

A divorce decree was entered on April 20, 1977, by the circuit court of St. Clair County dissolving the marriage of Thomas and Dorothy. In this decree, Dorothy was awarded custody of the parties' two children, Randy Bruce, age 13, and Ricky Wade, age eight. Additionally, the decree provided that child support for the two children was to be paid as follows:

"Second party (Dorothy) understands and agrees that she shall be awarded the sum of Fifty Dollars ($50.00) per week support for the parties' two minor children, said sum to be paid promptly to coincide with First Party's (Thomas) pay days."

On December 16, 1981, the parties' oldest son, Randy, reached the age of 18, and on or about June 1982, after Randy graduated from high school, Thomas unilaterally reduced his payments of child support from $50 per week to $25 per week. On February 19, 1987, Dorothy filed a post-decree petition contending that Thomas was delinquent in paying the child support ordered in the divorce decree.

At the hearing on the petition, Thomas testified that he was aware that the divorce decree provided that he was to pay $50 per week for child support and that there had never been a court order entered modifying the amount of child support. Thomas stated that in December 1981, he contacted his attorney, Norvan Adams, to ask if he could reduce his child support payments. According to Thomas, Adams advised him to wait until Randy graduated from high school before he reduced the payments, which Thomas did. Thomas admitted that after talking to Adams, he did not contact Dorothy to discuss his child support, but that he included a note on his check of June 1982, indicating that he had discontinued paying child support for Randy, their emancipated child. Thomas had paid Dorothy $25 per week since that time.

Thomas stated that he currently had an income of $30,000 and that he and his current wife owned a 1985 Dodge Lancer. Thomas had recently deeded his interest in his home to his current wife; however, he participated in the mortgage payments and was liable on the mortgage of the home. It was stipulated that, at all times, Thomas had had the ability to pay the child support ordered by the divorce decree.

Dorothy Jackson (now Vogt) testified that it was Thomas' attorney, Norvan Adams, who had handled their divorce and who had authored the divorce decree. Dorothy corroborated that after Randy graduated high school, Thomas reduced his child support payments from $50 per week to $25 per week and that she understood why Thomas had done this. Thomas never called her or wrote to her about his reduction of the child support payments, and she had never contacted him regarding this matter. Dorothy stated that she had not filed a petition for delinquent support payments since 1982, until she filed this petition.

Dorothy believed that she should be receiving $50 per week as that was what the divorce decree stated. She admitted that Thomas had told her he could only afford to pay her $25 per week per child. Dorothy did not have any understanding as to ...


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