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12/13/96 MARRIAGE KATHLEEN SCOTT v. TIMOTHY SCOTT

December 13, 1996

IN RE MARRIAGE OF: KATHLEEN SCOTT, N/K/A KATHLEEN KLIEBER, PLAINTIFF-APPELLEE,
v.
TIMOTHY SCOTT, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, LaSalle County, Illinois. No. 95-D-478. Honorable William Banich, Judge Presiding.

Released for Publication April 23, 1997.

Present - Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Kent Slater, Justice. Presiding Justice Breslin delivered the opinion of the court; Holdridge, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

In this appeal we are asked to determine whether the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (750 ILCS 5/101 et seq. (West 1994)) renders a child support provision void when the amount of support is listed as a percentage of income. We hold that the child support provision is not void. We also hold that the court's finding that appellant was willfully in violation of a court order was supported by the evidence, and thus the statute requires that appellant pay his former spouse's reasonable attorney fees.

On December 24, 1991, a judgment was entered dissolving the marriage of Kathleen and Timothy Klieber. Included in the judgment was a joint parenting agreement regarding their two minor children. The judgment awarded joint custody to the parties and physical custody to Kathleen. The agreement provided:

TIMOTHY shall pay to KATHLEEN for child support, 25% of his base net salary from all sources, with increases to be made when TIMOTHY's income is increased which figure is currently $200 per check, bi-monthly.

After the dissolution of marriage, Tim made the payments in accordance with the order. He later changed jobs, and his salary increased. However, Tim did not modify his support payments accordingly. Instead, he continued to send payments in the amount of $400 per month. Kathleen then brought the present petition for rule to show cause claiming that Tim willfully refused to comply with the child support provision of the judgment.

At the evidentiary hearing on the petition, Kathleen testified about discussions she and Tim had when negotiating the agreement. She stated that Tim wanted the agreement to require a percentage of his income rather than a specified amount so that the parties could avoid further court costs after the judgment. Kathleen testified that she contacted Tim on a regular basis to inquire whether his salary had increased. She stated that he constantly denied that his salary increased.

Tim denied that Kathleen ever contacted him to discuss his salary. Additionally, he testified that he was not represented at the dissolution proceedings and that no one had explained how the 25% was to be calculated. Moreover, he argued that a percentage provision was invalid and that the only portion which was enforceable was the part which called for the payment of a specific dollar amount.

The trial court found that the provision was valid and that Tim had willfully failed to comply with the child support portion of the judgment. In making its determination, the court noted that it relied upon the credibility of the witnesses. The court concluded that Kathleen was a very credible witness while Tim had a "substantial lack of credibility." Ultimately, judgment was entered against Tim in the amount of $6,580 in arrearages; his bimonthly payments were increased to $294. Additionally, the court ordered Tim to pay Kathleen's attorney fees. Tim appeals.

The first issue is whether the portion of the settlement agreement which called for the child support to be paid as a percentage of Tim's income was void.

Section 505 of the IMDMA provides that the minimum amount of child support a parent of two children must pay is 25% of the party's net income. 750 ILCS 5/505(a)(1) (West 1994). However, subsection (a)(5) provides that "the final order in all cases shall state the support level in dollar amounts." 750 ILCS 5/505(a)(5) (West 1994).

The question of whether the inclusion of a percentage rate renders the support provision void is one of first impression in this court. However, several other courts have addressed ...


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