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June 22, 1994


Appeal from the Circuit Court of Cook County. Honorable John Ryan and Grace Dickler, Judges Presiding.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Petitioner Madeleine Sawyer, now known as Madeleine Costello, brought a "Petition for Rule to Show Cause" alleging that her former husband Raymond Sawyer willfully neglected his obligation to pay expenses regarding their daughter Jennifer's college education, travel, medical bills, and medical and life insurance benefits while he was incarcerated in a Federal penitentiary and subsequent to his release.

After an initial ruling by a Judge who retired from the bench before committing his order to writing, a subsequent Judge on rehearing held, contrary to the original Judge, that Raymond was liable for the amounts alleged as a matter of law but that the court was bound by the prior factual determination as to Raymond's lack of wilfulness in his refusal to pay.

Raymond asserts on appeal that: (1) payment of the amounts required under the child support provisions of the dissolution judgment are expressly conditioned upon his earning $55,000 per year and that a reduction in income excuses him from payment; and (2) his obligation terminates automatically in such event without having to file a petition for modification of the judgment.

Madeleine claims on appeal that: (1) the trial court erred in failing to have a rehearing upon the question of Raymond's wilfulness in response to her petition for rehearing; and (2) the court had jurisdiction to entertain her subsequent "Petition for Rule to Show Cause" for issues that arose during the pendency of the appeal.

We affirm as modified, and remand.

After more than 23 years of marriage, Madeleine and Raymond Sawyer obtained a judgment for dissolution of marriage (Judgment) on March 23, 1982, when two of their three children were emancipated and the youngest, Jennifer, was 12 years old. The Judgment incorporated the parties' marital settlement agreement (Agreement) which set forth Raymond's obligations to Madeleine for Jennifer's benefit.

Paragraph 10 of the Agreement provided that Raymond pay Madeleine $800 a month for Jennifer's support and maintenance as well as "all tuition, books and fees incurred in connection with her attendance at [private grammar and high] school." The final sentence in paragraph 10 provided, "The above support and educational requirements are based upon Husband's stated present gross income of $55,000.00 per year and his present financial situation as stated herein."

The Agreement also detailed Raymond's responsibility to pay for Jennifer's college expenses, including "tuition, books, supplies, registration and other required fees, board, lodging or sorority dues, and assessments and charges" for a maximum of five years except in the case of serious illness. Jennifer's choice of college was only limited by Raymond's ability to pay. Raymond further agreed that he would provide each of his children attending college away from home with two round-trip airplane tickets per year between the college and Madeleine's residence.

In addition, Raymond was required to maintain a $150,000 life insurance trust for Jennifer's benefit concurrent with his financial obligation to her "either for support, college or living expenses while in college," and to arrange for Madeleine to receive notice from the insurance company if he failed any premium payment.

With respect to all of the children, Raymond was responsible to pay for any extraordinary medical, dental, psychiatric or psychological care until they reached 23 years of age or married.

At the prove up on the "Petition for Dissolution of Marriage," Madeleine testified that the amount of child support as well as Raymond's responsibility to pay for Jennifer's private grammar and high school education was based upon Raymond's then present income of between $54,000 and $55,000. Madeleine also testified as to Raymond's responsibility for Jennifer's college education and related expenses, and for the extraordinary health-related services of all the children; however, there was no testimony that these obligations were based upon Raymond's then present income.

On August 16, 1990, Madeleine filed a "Petition for Rule to Show Cause" (Petition) alleging that Raymond was in arrears with respect to Jennifer's college tuition and related expenses, dental and psychological bills and round-trip airline tickets for her freshman and sophomore years in college. Madeleine also asserted that Raymond failed to provide proof of an existing life insurance trust for $150,000 to benefit Jennifer.

Raymond filed an answer (Answer), claiming his failure to pay the enumerated expenses upon his imprisonment for tax evasion "through the insistence of the Federal government and not by his own consent," rather than a wilful attempt to avoid responsibility under the Judgment.

On June 4, 1991, the trial court conducted an evidentiary hearing on the Petition and Answer at which Raymond, Jennifer and Madeleine testified.

Raymond testified that on January 1, 1988 he sold his stock in R. Sawyer and Company (Company), of which he was the sole stockholder, for $1,000 to Carolyn Larson, whom he married in July 1988. He explained the sale was perfected upon his belief that he would be going to jail as the result of a Federal investigation for tax evasionand because Ms. Larson had no independent means of support. Raymond further testified that in April 1988 Larson purchased for approximately $500,000 the home in Long Grove, Illinois where she now lives with Raymond.

Raymond was convicted of Federal income tax evasion and sentenced to prison from November 30, 1989 until January 7, 1991. Raymond testified that when he began his prison term, his total assets approximated $2,000 and he was current on all obligations concerning Jennifer. While incarcerated, his monthly income amounted to $15.40 except for the last six months when he received a $5 bonus. Upon his release from prison, Raymond owed the government $45,000 in fines and $600,000 in income taxes. He then returned to work for the Company, now owned by his new wife, and earned a weekly net income of $313.96, from which $60 was garnisheed.

Raymond continued to pay Jennifer's college-related expenses until January 1990 and never informed her of his inability to make payments thereafter. Raymond explained his failure to so inform Jennifer upon his belief that he would receive $24,000 from a client for past services rendered, although the money was never collected. However, he stated in his January 1990 letter to Jennifer that he would continue to pay her tuition and related expenses unless she failed a class.

Raymond made no payments for Jennifer's medical or travel expenses after November 30, 1989 and, similarly, never informed her of his ...

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