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March 6, 1995


Appeal from Circuit Court of Macon County. No. 93D690. Honorable Scott B. Diamond, Judge Presiding.

Petition for Rehearing Denied June 20, 1995. As Corrected July 19, 1995.

Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Respondent, David Horn, filed a petition to reduce child support payments after his union went on strike against his employer, Caterpillar Tractor. After hearing, the trial court granted the reduction from $121 to $20 per week, retroactive to the date respondent filed the petition to modify. The court also directed that the previous child support order would be reinstated the first Friday after the strike ended. On appeal, petitioner, Susan Horn, contends that voluntary participation in a strike does not constitute a legitimate basis for reducing child support payments. She also contends the trial court erred in reducing support retroactively to the date the petition to modify was filed because the evidence showed respondent had income available to him which he used to pay personal debts rather than his court-ordered child support.

The facts are not in dispute. The parties' marriage was dissolved on May 6, 1994. Respondent was ordered to pay $121-per-week child support. The judgment of dissolution also required that respondent pay petitioner $19,000, most of which represented her equity in the marital home, which was awarded to respondent. On June 24, 1994, respondent filed a petition to modify child support asking that payments be terminated or substantially reduced because respondent's union began a strike three days earlier against his employer and he was unable to pursue his regular occupation. A hearing was held on July 27, 1994. Petitioner testified that prior to the strike, respondent had been current in child support payments. He also paid a total of $19,000 to her by early June 1994, of which she retained approximately $15,400 in a savings account. Petitioner is currently employed earning $6.50 per hour.

Respondent testified he is a machinist and shop steward at Caterpillar and a member of the union which went on strike on June 21, 1994, three days before the petition to modify was filed. As a 20-year union member, respondent honored the picket line as he had during two previous strikes against Caterpillar. Petitioner had supported his decision to go out on strike with his union on these previous occasions. When asked the reason for the current strike, respondent replied, "to protect our jobs, our family's future." He denied taking part in the strike to avoid paying child support and other claims of his former wife.

Respondent acknowledged paying petitioner $19,000 after the marriage was dissolved. He had intended to refinance the former marital residence to obtain the funds, but because of the strike, a loan approval was withdrawn by the bank. He then borrowed $14,000 from his brother to pay the balance of the sum he owed his former wife. Respondent had repaid his brother approximately $6,000 at the time of the hearing.

Respondent offered a financial affidavit showing monthly living expenses of almost $2,000. While he indicated that since the strike began he was not able to pay these expenses in the amounts he indicated, he remained current on his mortgage payments and real estate taxes. Respondent's current income is $100-per-week strike pay, which is subject to Federal and State taxes. Respondent concluded that he did not have any money with which to pay child support and had exhausted virtually all of his financial resources paying the money awarded to his ex-wife and repaying the loan from his brother.

On cross-examination, respondent indicated the strike was predicated on a vote by union members taken three years earlier. Prior to the strike, he was earning $19.50 an hour. Respondent testified he attempted to find alternative employment by answering ads in newspapers for one delivery and two warehouse jobs. He was refused employment because these employers would not hire strikers. He conceded he had not tried to find a job as a machinist. Respondent agreed that Caterpillar was offering $17 an hour as a starting rate for people who crossed the picket line. Respondent had not considered crossing the picket line in violation of union rules.

When asked how a strike was going to protect his job and family, respondent stated that the union wanted to "stop the take-aways." He explained that Caterpillar was attempting to change job security provisions of the collective-bargaining agreement by initiating a two-tier wage scale which would result in a lower pay scale for employees being recalled after layoffs. Respondent stated he earned between $48,000 and $49,000 in 1993, and approximately $28,000 in 1994, up to the date of the strike.

Respondent also acknowledged receiving a $1,500 vacation check at the beginning of June 1994. Respondent used that money to pay some of his bills but did not use any of it to pay child support. When he received his first $100 in strike pay, he unilaterally reduced his child support payment to $12 or $14, which was his calculation of 20% of the net strike pay he would receive after taxes. Respondent also conceded that all of his other expenses were current with the exception of child support and he had not reduced his payments on any of his other outstanding debts although his funds were now exhausted.

When asked if there was anything physically preventing him from crossing the picket line, respondent stated, "if you want to help management break the union and reduce the pay, yes, you can cross the picket line." Respondent also did not want to be considered a "strikebreaker" or a "scab" because of harassment and potential physical violence.

Petitioner again testified stating that since respondent unilaterally reduced child support payments, she had to expend money from her savings to cover her expenses and those of the four-year-old daughter of the marriage. Petitioner was also not informed by respondent that he had received vacation pay which he used to pay bills other than child support. Petitioner offered that she had intended to use the funds received from the marital estate as a down payment on a house. Because she was still a ...

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