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October 19, 1995


Appeal from Circuit Court of Piatt County. No. 88D44. Honorable John P. Shonkwiler, Judge Presiding.

Released for Publication November 21, 1995.

Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Respondent's union is on strike. He filed a petition to reduce his child support obligation because of his reduction in income. The trial court did reduce the amount of his current child support payments but ruled that the reduced amount would have to be repaid at a later date. Respondent appeals that part of the order. We affirm.

Petitioner H. Catherine Fink and respondent Jim Michael Fink were granted a judgment of dissolution of marriage October 27, 1988. At that time, the parties had three minor children. The judgment stated the parties had entered into a joint-parenting agreement, which provided physical custody of one child would rest with petitioner and physical custody of the other two children would be with respondent.

In June 1992, petitioner filed a petition to vacate and modify the custody provisions of the judgment of dissolution. By a stipulated order entered in October 1992, the parties retained joint custody of the two then-minor children (John and Cynthia Fink) with physical custody of both placed with petitioner.

A payment order was entered January 29, 1993, ordering respondent to pay $216 a week in child support. The order stated the payments were to begin effective June 11, 1992, which created an arrearage of $7,562 at the time the order was entered. The order provided the weekly payments were reduced to $173 per week commencing July 1, 1993, with respondent to continue paying $216 until the arrearage was paid in full. A written order reflecting these provisions was entered February 10, 1993. This order noted the arrearage arose in the time period between petitioner's filing of the petition to vacate on June 5, 1992, and the entry of the payment order. The order provided payment on the arrearage was to begin July 5, 1993, when the amount of child support was to be reduced to $173 per week, since at that time only one of the parties' children would remain a minor. Respondent filed a petition for rehearing alleging the order was based on his 1992 earnings, which reflected a great deal of overtime. On April 14, 1993, the trial court denied the petition.

On July 13, 1994, respondent filed a petition alleging that he had gone on strike July 11, 1994, and wished to abate child support until he returned to work. On August 8, 1994, a hearing was held on the petition.

Respondent is employed by Bridgestone Firestone. He earned $63,000 gross income during 1993; through the pay period ending July 17, 1994, he had earned nearly $44,000 gross income. Respondent is remarried and resides with his wife and her 12-year-old child. His wife is employed by Merle Norman. Respondent testified he had one bank account with less than $320 in it. He stated that was the only account which he or his current wife had. Respondent said the reason he is not working is that his union is on strike against Bridgestone Firestone. He receives $100 per week in strike benefits. He had looked for work elsewhere but had not been hired. He stated he had been on strike before and had never been employed while on strike. He said the union had worked without a contract from April 22 until the strike began in July.

Respondent owns his home subject to a mortgage. His mortgage payment is $309 a month. He owns a 1994 Mitsubishi Galant which was purchased for approximately $15,000 or $16,000 in July 1994 before the union went on strike. He owns a Jeep Cherokee which was purchased in April 1994 for approximately $18,000. The monthly payments on the cars are approximately $270 and $360, respectively. He stated he planned to keep the cars. Respondent's wife testified that they owned two cars before their current vehicles were acquired and they had merely exchanged car payments. They were previously making car payments of $380 and $235 a month.

Respondent's wife testified she worked 6-1/2 to 7 days a week. She said her income goes to pay bills the couple already had. She stated respondent's strike pay was used to pay bills and buy groceries. Respondent said he would be willing to pay 20% of his after-tax strike pay as child support.

A payment order was entered August 8, 1994, ordering respondent to pay $25 per week in child support commencing July 14, 1994. The reduction was ordered subject to repayment. The cause was continued until September 6, 1994, for review. Respondent filed a motion for reconsideration August 22, 1994. A hearing was held September 6, 1994. No additional evidence was taken at the hearing. Following the arguments of counsel, the court ruled it had followed Supreme Court Rule 296(f). (134 Ill. 2d R. 296(f).) The court ruled that, based upon that subsection, respondent's motion for reconsideration would be denied.

The cause was continued until October 18, 1994, for review. Respondent was directed to notify the court within 48 hours if he returned to work. Respondent filed a notice of appeal to this court September 20, 1994, appealing ...

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