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11/15/89 In Re Marriage of Paula Ann Fowler F/K/A Paula Ann Mccloud

November 15, 1989

IN RE MARRIAGE OF PAULA ANN FOWLER F/K/A PAULA ANN MCCLOUD,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Petitioner-Appellant, and GEORGE McCLOUD,

Respondent-Appellee

554 N.E.2d 240, 197 Ill. App. 3d 95, 143 Ill. Dec. 305

Appeal from the Circuit Court of Mercer County; the Hon. Edward Keefe, Judge, presiding.

As Modified January 16, 1990 1989.IL.1784

APPELLATE Judges:

HEIPLE, SCOTT, STOUDER

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

Petitioner, Paula Ann Fowler, F/K/A Paula Ann McCloud, and respondent George McCloud were marred on October 5, 1968. During the course of their marriage, one child was born to petitioner and respondent, namely David McCloud, born July 26, 1973. On April 11, 1979, the circuit court of Mercer County ordered the dissolution of the marriage of petitioner and respondent, incorporating the voluntary agreement made between the parties. The judgment of dissolution provided, inter alia, that the petitioner would have custody of the child, that the respondent would have reasonable visitation rights, that the respondent would pay child support of $25 per week, and that the petitioner would receive the Federal and State income tax dependent exemption for the minor child. On July 22, 1981, the circuit court modified the judgment of dissolution by increasing the child support to $50 per week.

On October 5, 1988, petitioner filed two actions with the circuit court of Mercer County. A petition for rule to show cause requested: (1) that the respondent be ordered to show why he should not be held in contempt of court for his failure to comply with the judgment of dissolution by making timely child support payments; (2) that a moneyjudgment be entered against the respondent and in favor of the petitioner in the sum of the arrearage, cost, expenses and interest; and (3) that the court require the respondent to reimburse the petitioner for reasonable attorney fees and costs in connection with the preparation of the petition. A petition to increase child support was filed concurrently by the petitioner, requesting the the court modify the judgment of dissolution by increasing the child support to a sum commensurate with the respondent's income and that the respondent by required to pay the petitioner's reasonable costs and attorney fees incurred in connection with the petition. The respondent filed a counterpetition requesting that the court allocate the dependent tax exemption to him.

The circuit court of Mercer County filed an order on January 17, 1989, concerning the rule to show cause, petition and counterpetition. The order discharged the rule to show cause, stating that respondent was not in wilful contempt of court, denied the petitioner s petition to increase child support and denied the respondent s counterpetition, but allowed the respondent the dependent exemption on his Federal and State income tax returns. On February 10, 1989, petitioner filed her notice of appeal.

Petitioner contends the following on appeal: (1) that the trial court erred in failing to award attorney fees and cost for her petition for rule to show cause because respondent was not justified in his failure to pay his child support; (2) that the trial court's denial of her petition for increased child support was an error because the increase in support costs, coupled with the increase in respondent's salary, establishes substantial change warranting an increase in child support; (3) that the trial court erred in failing to order the respondent to pay at least the minimum amount of child support required under section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40 par. 505); and (4) that the trial court lacked jurisdiction to transfer the income tax exemption for the dependent child to respondent under section 152(e) of the Internal Revenue Code (26 U.S.C. § 101 et seq. (1982)).

1 Petitioner argues that she is entitled to reasonable attorney fees and costs under section 508 (Ill. Rev. Stat. 1988, ch. 40, par 508), because the respondent s failure to make timely child support payments was without cause or justification. The trial court found that on the date of the hearing on the rule to show cause, an arrearage of $50 remained on child support. It was stipulated that following service of summons on respondent in October 1988, a $750 arrearage was brought current. The trial court further stated that the respondentwas not in wilful contempt of court for failure to pay child support. Section 508(a) of the Act empowers a trail court to award attorney fees in a dissolution proceeding, and section 508(b) provides:

"In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney's fees of the ...


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