Appeal from the Circuit Court of Winnebago County. No. 94-D-1297 Honorable Patrick L. Heaslip, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
Respondent, Marvin L. Letsinger, appeals the judgment of the circuit court of Winnebago County increasing child support and awarding attorney fees to petitioner, Marcella A. Letsinger. Marcella cross-appeals from the amount of the trial court's award of attorney fees and from the denial of her motion for contempt. We affirm as modified and remand with directions.
The parties' marriage was dissolved on August 11, 1997. The trial court awarded sole custody of the parties' minor child, Shana, to Marcella and ordered Marvin to pay $145 per week in child support. The judgment further required Marvin to pay $98 per week to Marcella for maintenance until July 18, 1999, and to provide medical insurance continuation coverage (COBRA) for Marcella until the coverage expired or she became eligible for group insurance coverage, whichever occurred first. The trial court awarded possession of the marital residence to Marcella. Marcella retained 60% of the equity in the marital residence, and Marvin retained the remaining 40%. The judgment allocated the marital debts between the parties, each to assume sole responsibility for, and hold the other harmless from, the assigned debts. Marvin's attorneys were granted judgments against him for attorney fees totaling $5,304. Apparently, after the attorneys were granted judgments against Marvin, they filed liens on the marital home. On October 27, 1997, following Marcella's motion to reconsider, the court modified the judgment, awarding Marcella all of the equity in the marital residence.
On November 3, 1997, Marvin filed a bankruptcy petition and was discharged of the marital debts allocated to him in the judgment of dissolution. On November 25, 1998, Marcella filed an amended motion for relief and contempt. Marcella alleged that Marvin's discharge of the marital debts constituted a substantial change in circumstances justifying an increase in child support. Marcella also sought a contempt finding against Marvin for his failure to pay her COBRA premiums from May 1998 as previously ordered by the court in the judgment of dissolution.
At the hearing on the motion, Marcella testified that the bankruptcy court discharged Marvin's marital debts and he had failed to pay any of the debts that were discharged, including (1) $5,304 in attorney fees to Marvin's former attorneys; (2) $3,103 in attorney fees to Marcella's attorney; (3) $8,791 to Dr. Albasha; (4) $425 in income taxes; (5) $320 to Neuman & Company; and (6) $133 to Oman & Oman. Marvin admitted that he had made no payments on the debts allocated to him in the dissolution since he had filed for bankruptcy.
Marcella also testified that she could not afford to pay the marital debts that originally had been allocated to Marvin. Her net take-home pay amounted to $1,466 a month, and her student loans exceeded $16,000. Marcella had made some payments on her own debts, and she had paid some back taxes. Marcella attempted to refinance the marital residence but was unable to do so because of the liens on the marital home. She feared that she would lose the equity in her home as a result of the liens. Marcella's financial affidavit from February 1999 reflected monthly living expenses of $2,870, biweekly net earnings of $747, plus child support of $628 per month. She paid $165 per month on debts totaling $62,725. She also paid $214 in car payments per month.
Marcella further testified that Shana had become involved in a number of extracurricular activities that required her to purchase uniforms and equipment and to pay for camps. Marcella stated that she had been forced to pay $600 for cheerleading camp and that Marvin had failed to pay his share of the camp fees within 30 days, as previously ordered by the court. Marcella stated that her house payments, homeowner's insurance, and automobile insurance had increased. Marcella stated that she could not afford to pay for her daughter's extracurricular activity expenses if forced to pay the debts discharged in bankruptcy by Marvin.
Regarding her health insurance, Marcella stated that she did not become eligible to receive health insurance coverage until July 1999 due to a pre-existing condition. Since May 1998, Marcella had been paying the COBRA premiums despite the judgment requiring Marvin to pay the premiums. As of January 1999, the cost of premiums had increased from $233 per month to $243 per month.
Marvin testified that, although he had been earning $52,000 per year at the time child support was calculated, he was now earning $45,000 to $46,000. Marvin admitted that because of his bankruptcy discharge he was no longer responsible for the marital debt allocated to him in the judgment. Marvin's financial affidavit reflected that, excluding child support and maintenance payments, he had monthly living expenses of $1,562. Marvin admitted that he had not paid half of Shana's extracurricular activity expenses.
Following the hearing, the court found that the debts incurred by Marcella due to the discharge in bankruptcy by Marvin constituted a substantial change in Marcella's circumstances warranting an increase in child support. The court determined that the substantial debts precluded Marcella from providing for the child in the manner she would have been able to provide had Marvin not filed bankruptcy. Determining that it would be appropriate to deviate from the statutory guidelines, the court increased the child support obligation to $182 per week.
Additionally, the court awarded to Marcella all of the reasonable attorney fees that she had incurred in connection with her petitions, finding that Marcella lacked the ability to pay her own attorney fees and that Marvin had the ability to contribute toward the fees. The court further held Marvin in contempt of court for wilfully failing to comply with the previous court order that required him to pay $300 for Shana's cheerleading expenses.
Thereafter, Marcella filed a petition for attorney fees in the amount of $4,370. Marvin objected to $890 of attorney fees, the majority of which were related to the removal of liens recorded against the marital residence by Marvin's former attorneys. The trial court agreed with Marvin and awarded Marcella $3,304 in fees.
The parties filed cross-motions for reconsideration. Marvin asked the court to reconsider modifying the child support obligation and the award of attorney fees to Marcella. Marcella requested that the court increase the amount of child support and ...