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03/24/94 MARRIAGE KATHLEEN INGRAM

March 24, 1994

IN RE MARRIAGE OF KATHLEEN INGRAM, PETITIONER-APPELLANT, AND STEVEN INGRAM, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of McHenry County. No. 87-DV-955. Honorable Susan F. Hutchinson, Judge, Presiding.

Bowman, Doyle, Quetsch

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Petitioner, Kathleen Ingram, and respondent, Steven Ingram, were married in 1975 and divorced in 1988. In July 1992 Kathleen filed a petition for a rule to show cause alleging, among other things, that Steven had failed to make child support payments. The trial court denied relief to Kathleen on the ground that the child support order was void and that Steven had been unemployed from the time that he ceased making the payments. On appeal, Kathleen argues that the trial court erred in holding that Steven was not in arrearage of his child support obligation, in refusing to hold Steven in contempt, and in failing to order Steven to pay attorney's fees. She also claims that the trial court erred in refusing to order a new hearing on her petition for a rule to show cause after she presented new evidence that Steven had committed perjury.

On December 1, 1988, Kathleen and Steven entered into a "Marital Settlement Agreement" (Agreement) which the trial court approved on January 7, 1988. The Agreement provided, in part, that Kathleen would have custody of the couple's minor daughter and that Steven would have reasonable visitation rights. The Agreement also provided that Steven would pay $660 per month in child support. The Agreement further provided:

"The figure of $660.00 represents 20% of HUSBAND'S current net income of $3,300.00 per month. In the event that HUSBAND'S income shall increase, the child support payments shall increase to an amount equal to 20% of HUSBAND'S net income without further order of court. HUSBAND shall notify WIFE of any increase in income within 10 days of learning that an increase has or will be received. In the event that HUSBAND'S income [sic] shall decrease, and provided that HUSBAND has first delivered written documentation from his employer of such decrease to WIFE, the child support payments shall decrease to an amount equal to 20% of HUSBAND'S net income without further order of court."

On July 31, 1992, Kathleen petitioned for a rule to show cause claiming that Steven had failed to make child support payments. In a subsequent affidavit she claimed that he had not made a child support payment since October 17, 1991. In response, Steven claimed that he had been unemployed since October 27, 1991. The trial court approved a bystander's report which reflected that Steven's employment was terminated on October 28, 1991, that he had informed Kathleen on December 1, 1991, but that he had not provided Kathleen with any documentation that his employment was terminated.

The trial court held a hearing on Kathleen's petition on September 22, 1992. According to the bystander's report:

"A. Defendant testified he was laid off because of company-wide layoffs and reorganization. He had attempted to obtain documentation from his employer of the termination of his employment, but he was unable to obtain it. Since his termination he had not been employed where he obtained income.

B. The court found that the defendant's employment had been terminated by his employer, that the defendant had attempted to obtain written documentation from his employer of his termination, but had been unable to obtain it. The court held as a matter of equity it could not require the defendant to provide documentation of the termination of his employment when his employer refused to provide it. The court further found void that provision of the parties' marital settlement agreement obviating the need for a court order allowing a decrease in child support. The court ruled that it therefore could not find defendant in contempt or enter judgment for arrearages or attorney's fees."

The trial court entered an order on September 22, 1992, stating that Steven was not in arrearage of child support but ordering him to pay $41 per week for child support in the future. The trial court further entered an order stating that, in order for the parties to make any future modifications to the dissolution judgment, they must file a written motion and obtain an order of the court.

The bystander's report further reveals that Kathleen had subpoenaed the records of Steven's former employer on September 11, 1992, and that she had received a response on October 23, 1992. Nothing in the record reveals the substance of this response. Kathleen moved to reconsider the trial court's September 22, 1992, ruling refusing to hold Steven in arrearage of child support. This motion was file-stamped on September 14, 1992, but was actually filed between October 13 and October 21, 1992. On October 27, 1992, Kathleen filed a motion for a new trial alleging that the records provided by Steven's former employer revealed that Steven was fired for cause, on account of poor job performance and absenteeism, and that his termination was therefore tantamount to a voluntary termination. Kathleen also claimed that Steven had perjured himself at the September 22, 1992, hearing by stating that his termination was the result of a company-wide layoff.

The trial court denied both motions on October 27, 1992. On appeal, Kathleen claims that the trial court erred in finding the Agreement void and refusing to enforce Steven's child support obligations. Kathleen concedes that the Agreement improperly provided that the child support award could be modified without the approval of the court. She argues, however, that the trial court should have severed the provision allowing for automatic modifications and enforced the remainder of the Agreement, including the provision which required Steven to pay $660 per month for child support. She also argues that the trial court erred in refusing to grant her a new hearing on her petition for a rule to show cause based on newly discovered evidence that Steven was fired for cause and not laid off. She argues that Steven's termination for cause was comparable to a voluntary termination and should not have been grounds for a reduction in his child support obligations. She further contends that the discovery of perjury is, in and of itself, grounds for a new trial.

An analysis of the issues presented in this appeal must begin with a Discussion of the validity of the Agreement. Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) encourages parties to a dissolution proceeding to settle their disputes amicably. (750 ILCS 5/502(a) (West 1992).) A settlement agreement which is incorporated into a dissolution judgment is tantamount to an order of the court. ( In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 22-23, 120 Ill. Dec. 373, 523 N.E.2d 1284.) The portions of a settlement agreement which relate to the division of property and spousal maintenance are binding on the trial court. (750 ILCS 5/502(b) (West 1992)).) However, the portions of a settlement agreement which relate to the support, custody, and visitation of children are not binding upon the trial court. (750 ILCS 5/502(b) (West 1992)); see also In re Marriage of Yndestad (1992), 232 Ill. App. 3d 1, 7, 173 Ill. Dec. 507, 597 N.E.2d 215.) The modification of a child support obligation is a judicial function, and the court is obligated in a dissolution proceeding to protect the interests of the children involved. ( Blisset v. Blisset (1988), 123 Ill. 2d 161, 167, 121 Ill. Dec. 931, 526 N.E.2d 125.) Parties to a dissolution proceeding are not at liberty to ...


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