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02/24/89 In Re Marriage of Barbara Talmadge

February 24, 1989

IN RE MARRIAGE OF BARBARA TALMADGE, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and STEPHEN J. TALMADGE, Respondent-Appellant

534 N.E.2d 1356, 179 Ill. App. 3d 806, 128 Ill. Dec. 751 1989.IL.244

Appeal from the Circuit Court of Du Page County; the Hon. C. Andrew Hayton and the Hon. Michael R. Galasso, Judges, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal from an order which (1) denied respondent's,, Stephen J. Talmadge's, motion to reconsider an order directing respondent to pay extraordinary medical expenses for the parties' children in the amount of $4,806.22; (2) found respondent in contempt; and (3) directed respondent to pay petitioner $158.24 for reimbursement of travel expenses. Respondent also appeals an order directing respondent to pay for attorney fees in the amount of $2,549. These appeals have been consolidated for our consideration.

On appeal, respondent contends that (1) the trial court improperly ordered respondent to pay extraordinary medical expenses of the parties' children; (2) petitioner was barred by laches from seeking extraordinary medical expenses; (3) petitioner was estopped from seeking extraordinary medical expenses; (4) the trial court erred in preventing respondent from reading a definition of the term "consult"; (5) the trial court improperly issued a rule to show cause against respondent; (6) respondent was improperly held in contempt; and (7) the trial court improperly awarded attorney fees. We reverse and remand.

A decree of dissolution of the parties' marriage was entered on November 28, 1979. At the time of the dissolution, both parties resided in Illinois with their two children. Pursuant to the dissolution agreement, petitioner (wife) was granted custody of both children. The dissolution agreement also provided that respondent (husband) was responsible for all major medical expenses of the children. It provided in pertinent part:

"The wife shall be responsible for the ordinary medical care of the children. The husband shall be responsible for all extraordinary medical expenses incurred on behalf of the minor children. The term 'extraordinary,' shall include medical, dental, psychological, psychiatric, optical needs of the children, teeth straightening or major dental work, operations, serious illness, requiring hospitalization or extended medical care, but shall not include routine check-ups, minor ailments, or medical supplies.

The wife shall consult with the husband as to the need for other medical attention, except grave emergency, where the life of the child might be imperiled by delay; in the event where the parties do not agree as to whether any expense is extraordinary, the Court shall, upon proper notice and petition, determine same, even after the expense is incurred.

The husband shall maintain medical insurance on the children for said extraordinary medical care and costs and will be responsible for any extraordinary expenditures above and beyond the coverage of the insurance, except as may otherwise by [ sic ] Ordered by a court of competent jurisdiction, upon good cause shown."

Subsequent to the dissolution, petitioner moved to California with the two children.

In April 1987, petitioner filed a petition for increase in child support and other relief. The petition prayed for an order directing respondent to pay petitioner the sum of $1,288 for extraordinary medical expenses incurred on behalf of the children.

On September 16, 1987, an order was entered which granted, among other things, leave for petitioner to withdraw her petition for increase in child support and other relief. Also entered on that date was a rule to show cause against respondent for failure to pay medical expenses pursuant to the dissolution agreement, "said sum currently in the amount of $3,573.93." Prior to the entry of this order, respondent and counsel for petitioner appeared before the trial court. At that time, respondent contended that he had not been served with notice of the petition for the rule to show cause.

On October 28, 1987, an order was entered directing respondent to pay $3,573.93 to petitioner for extraordinary medical expenses incurred on behalf of the children. The order also provided that respondent was granted leave to file a motion to reconsider and further provided that respondent was to pay in advance of any hearing on that motion petitioner's cost for airfare from California, the cost of overnight housing, and attorney fees necessary for her counsel to prepare for and represent her at the hearing. No evidentiary hearing was held prior to the order being entered.

Respondent filed a motion to reconsider the order of October 28, 1987.

On February 3, 1988, petitioner filed another petition for a rule to show cause against respondent for an additional $648.95 in extraordinary medical expenses. A notice of motion indicates that this was sent to William Major on February 3, 1988, who was attorney of record for respondent at that time.

On February 22, 1988, the parties appeared before the trial court, respondent filed a pro se appearance, and Major, Fennell & Associates filed a motion to withdraw. Later that day, a rule to show cause was entered against respondent for failure to pay extraordinary medical expenses of the children, "sum currently in the amount of $4,806.22." On that date, the court also entered an order which provided, among other things, petitioner leave to file a petition for attorney fees and leave to file a petition for travel expenses. Prior to the order being entered, respondent alleged that he had not been served a notice of the petition for a rule to show cause.

Also on February 22, 1988, respondent filed a response to the petition for rule to show cause in which he alleged that petitioner at no time attempted to consult him prior to the engagement of medical services for the children. Respondent further asserted that this gave him reasonable cause to believe that he was not responsible for payment of the alleged medical treatments. Respondent also asserted that petitioner's failure to consult him prior to treatment prevented him from, among other things, being reimbursed by his insurance carrier. As a part of his response, respondent attached an exhibit which alleged that his costs would have been $2,403 less if he had been consulted prior to the onset of treatment. Other portions of the claim he contended were not extraordinary medical expenses.

On March 30, 1988, there was a hearing on respondent's amended motion to reconsider and whether respondent should be held in contempt. The motion to reconsider was denied without an evidentiary hearing. An evidentiary hearing was then held on whether respondent should be held in contempt. Respondent stated that petitioner had failed to consult with him prior to the onset of any medical treatment for the children.

Petitioner stated that she did not consult with respondent prior to bringing their daughter to an optometrist, but sent respondent the bill. She further stated that she does not call him prior to taking the children to the eye doctor. She further stated that she did not consult him prior to purchasing glasses for their daughter. She stated that she did contact him prior to orthodontic treatment for their son in relation to a bill dated January 13, 1988. During examination of petitioner, the trial court ruled that questioning should be limited to whether respondent was consulted before a course of treatment was begun and should not extend to whether respondent had been consulted prior to every visit to ...


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