The opinion of the court was delivered by: Justice Buckley
Appeal from the Circuit Court of Cook County. No. 94 D 01538 The Honorable James J. Gavin, Presiding Judge.
On May 13, 1997, respondent James Semonchik, filed a motion to modify support payments payable to petitioner Roxanne Semonchik pursuant to a judgment of dissolution of marriage. The basis of the motion to modify was respondent's unemployment. On November 12, 1997, respondent voluntarily dismissed the motion to modify. On December 3, 1997, respondent filed a motion to vacate the voluntary dismissal, and on February 2, 1998, the trial court denied respondent's motion. On February 20, 1998, respondent filed a "supplemental" motion to modify support payments once again alleging unemployment. On April 3, 1998, the trial court granted respondent's "supplemental" motion and abated his support obliga-tion retroactive to February 20, 1998, the filing date of the "supplemental" motion. Respondent filed a motion to reconsider asking the trial court to abate the arrearage retroactive to May 13, 1997, the filing date of the first motion. On July 27, 1998, the trial court granted respondent's motion to reconsider, vacated its order of April 3, 1998, and abated respondent's support obligation retroactive to May 13, 1997. Petitioner now appeals that order.
On May 21, 1998, petitioner filed a petition to set family support alleging that respondent had found gainful employment. On August 31, 1998, the trial court entered an order on petitioner's petition holding that: respondent was to pay $2,275 per month in unallocated family support for 17 months and that, after the termi-nation of petitioner's maintenance rights, respondent was to pay $1,294 per month as child support until the children attained age 18 or other factors under the order were met. Respondent cross-appeals and argues that the trial court abused its discretion in extending the length of support payments 17 months beyond the period set forth in the parties' marital settlement agreement.
Petitioner and respondent were married on May 17, 1980. A judgment for dissolution of the marriage of petitioner and respon-dent was entered on October 31, 1995. At that time, the parties had two children, Evan and David, both born on January 12, 1985. The judgment for dissolution of marriage incorporated the terms of a marital settlement agreement pursuant to which respondent was to pay petitioner $3,500 per month for unallocated child support and maintenance. The payments were to continue until October 1, 1998, unless terminated sooner pursuant to paragraph 3.1.B. of the marital settlement agreement. In the event that payments were terminated as provided under paragraph 3.1.B., respondent was required to pay $2,000 per month as child support for the minor children until their emancipation.
On May 13, 1997, respondent filed a motion to modify support alleging that a substantial change in circumstances had occurred. Respondent alleged that his employment had been terminated as of May 23, 1996, and that his one-year severance package, which extended his salary and benefits, was set to expire on May 23, 1997. He alleged that he had not yet secured new employment and that petitioner, while only employed part-time at the time of the dissolution of marriage, was now employed full-time. Respondent, therefore, requested that his support obligations be modified.
On June 24, 1997, petitioner filed a petition to review the joint parenting order, requesting that the court review the issue of visitation.
On August 25, 1997, an agreed order was entered resetting the hearing on the motion to modify to September 8, 1997. On September 8, 1997, the hearing was again extended and scheduled for November 13, 1997.
On November 12, 1997, respondent filed an emergency motion to continue the hearing set for November 13, 1997. The emergency motion was supported by an affidavit of respondent's counsel. The motion averred that counsel spoke with respondent on November 7, 1997, and respondent informed counsel that he was going to be out of town on vacation on November 12, 1997, and that his plans were "non-cancellable." The trial court denied respondent's emergency motion for continuance, and respondent's counsel orally moved to voluntarily dismiss the motion to modify support. The trial court granted respondent's motion to voluntarily dismiss, struck the hearing date of November 13, 1997, on petitioner's petition to review the joint parenting agreement, and set a status date on petitioner's petition for December 2, 1997.
On December 3, 1997, respondent filed a motion to vacate the voluntary dismissal and asked the court to reinstate his petition to modify support. On December 16, 1997, petitioner filed a response to respondent's motion to vacate.
On January 13, 1998, petitioner filed a petition for rule to show cause and other relief alleging that since June 1997 respon-dent had paid only $2,016 in support and, as respondent was required to pay $3,500 per month pursuant to the judgment of disso-lution, respondent had failed to make $22,750 in support payments.
On February 2, 1998, the trial court denied respondent's motion to vacate his voluntary dismissal and ordered that a rule to show cause issue against respondent returnable on February 25, 1998.
On February 20, 1998, prior to the hearing on the rule to show cause, respondent filed a "supplemental" motion to modify support. Hearings were held on the petition for rule to show cause and on the "supplemental" motion to modify support on March 30 and 31.
Thereafter, on April 3, 1998, the trial court made a number of findings. The trial court found that respondent's failure to make his support payments was not contemptuous because he was unemployed and had no ability to pay. In addition, the court found that as a result of respondent's unemployment, there existed a substantial change in circumstances warranting the modification of support obligation. However, the court also found a support arrearage of $29,236.03. Consequently, the court denied petitioner's petition for rule to show cause and granted respondent's "supplemental" motion for modification of support. The court abated respondent's support obligation retroactive to February 20, 1998, the filing date of the "supplemental" motion. The court also set a status ...