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In re Adams

April 30, 2004


[6] Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, No. 99--D--113 Honorable Dan A. Dunagan, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Barry

[8]  The petitioner, Carol J. Clary, filed a petition seeking an increase in the child support paid to her by the respondent, Steven L. Adams. The trial court granted Carol's petition, and also awarded her attorney fees in the amount of $250. On appeal, Steven contends that (1) the trial court abused its discretion in modifying his child support obligation, and (2) the court erred in awarding attorney fees to Carol. We vacate the award of attorney fees, but otherwise affirm the judgment of the trial court.

[9]  FACTS

[10]   The parties were divorced in 1999. Carol was awarded physical custody of their son, Kevin. Steven was required to pay child support in the amount of the dependency allowance he received from the United States Army. At the time of the dissolution, Steven's dependency allowance was $200 per month.

[11]   On July 12, 2001, Carol filed a petition to modify child support. In her petition, Carol claimed that Steven was no longer employed by the United States Army, and he had experienced a substantial increase in income since his discharge from active duty. Carol asserted that the current child support amount was not sufficient due to increases in the cost of living and the increased age of the child. Carol also sought attorney fees she incurred in pursuing the modification of child support.

[12]   On March 13, 2002, Carol's attorney, James Mertes, filed a notice of hearing for March 18, 2002, at 9 a.m. Steven's attorney, Ronald Stradt, filed and served a motion for extension of time. Stradt asserted that he received the notice of hearing on Friday, March 15, and that he was unable to attend the hearing on March 18 due to scheduling conflicts. The motion for extension of time was sent to Mertes by mail and by facsimile on March 15. Stradt also attempted to contact Mertes by telephone on March 15. Mertes was not in his office, so Stradt left a message indicating that he could not be present for the hearing on March 18. Nonetheless, Mertes proceeded with the hearing and sought a default judgment. Although Stradt's motion for extension of time made it to the circuit clerk's office on March 18, it obviously did not make its way to the court file before the hearing. The trial court, unaware of the motion for extension of time, entered an order granting an increase in child support. Stradt subsequently filed a motion to vacate the order, and the order was vacated after a hearing.

[13]   Steven then filed a financial disclosure statement in which he reported net monthly income of $3,079.78 as of March 27, 2002. He disclosed $2,365.01 in monthly living expenses, including his $200 per month child support payment. On May 15, 2002, Steven filed a notice stating that he had voluntarily terminated his employment to pursue "enhanced career opportunities in Germany."

[14]   Carol reported $200 per month in income from child support payments, and $2,642.37 in monthly living expenses in her financial disclosure statement. She also listed a savings account with a balance of $74,000.

[15]   A hearing on the petition was held on July 22, 2002. Steven testified that he moved to Germany in June of 2002, but he had not yet found employment. Prior to moving to Germany, Steven was employed as a television news helicopter pilot in Washington D.C., earning $55,000 per year. Steven testified that he moved because he believed he would have enhanced career opportunities in Germany, and his girlfriend lived there.

[16]   Mertes filed an affidavit of attorney fees, asserting that he had spent 7.3 hours on this matter and his customary charge for these services was $150 per hour. Therefore, his fees were $1,095.

[17]   The trial court found that a substantial change in circumstances had occurred in that both the needs of the child and Steven's income had increased since the entry of the judgment of dissolution. Therefore, the court modified Steven's child support obligation to $287.03 every two weeks. The court also awarded Carol $250 in attorney fees.


[19]   On appeal, Steven contends that the trial court erred in granting an increase in his child support obligation because no evidence was offered to show that the child's needs had changed or that he had experienced an increased ability to pay child support.

[20]   A child support order may be modified upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a) (West 2000). To establish a substantial change in circumstances, the petitioner must show an increase in the non-custodial parent's ability to pay and an increase in the needs of the child since the court's previous order. In re Marriage of Schmerold, 88 Ill. App. 3d 348, 410 N.E.2d 629 (1980). Courts may presume that the needs of children increase as they grow older and as the cost of living rises. In re Marriage of Pylawka, 277 Ill. App. 3d 728, 661 N.E.2d 505 (1996). A trial court's decision ...

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