Fink v. Roller

448 N.E.2d 204, 113 Ill. App. 3d 1084, 69 Ill. Dec. 744, 1983 Ill. App. LEXIS 1693
CourtAppellate Court of Illinois
DecidedMarch 28, 1983
Docket81-600
StatusPublished
Cited by11 cases

This text of 448 N.E.2d 204 (Fink v. Roller) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fink v. Roller, 448 N.E.2d 204, 113 Ill. App. 3d 1084, 69 Ill. Dec. 744, 1983 Ill. App. LEXIS 1693 (Ill. Ct. App. 1983).

Opinion

JUSTICE KASSERMAN

delivered the opinion of the court:

On October 25, 1977, plaintiff filed her petition in the circuit court of Madison County for modification of child support payments arising out of a paternity action. Plaintiff appealed that court’s dismissal of her petition, and this court reversed and remanded. (Fink v. Roller (1979), 76 Ill. App. 3d 818, 395 N.E.2d 617.) On remand, the circuit court on October 21, 1981, modified defendant’s monthly child support obligation from $75 to $150, retroactive to October 25, 1977, and assessed defendant’s responsibility for plaintiff’s attorney fees in the action at $2,325. In this appeal, defendant argues that (1) plaintiff did not demonstrate the “substantial change in circumstances” necessary to support a child support modification; (2) the court erred in ordering such modification to be retroactive to the date of plaintiff’s modification petition; and (3) the court erred in awarding plaintiff attorney fees with respect to the modification proceedings.

The child in question was born in 1966. By stipulation filed in the trial court on November 8, 1967, defendant agreed to pay plaintiff $75 per month for the child’s support.

Defendant testified at the May 20, 1981, hearing on remand: He was manager of a 300-acre grain farm and part-time real estate appraiser and he was in the same business in 1967. He held title to the grain farm from 1956 until 1980, when he conveyed it to a land trust. A tenant farmed the grain acreage under a “standard arrangement” pursuant to which defendant received half the crop annually. Defendant had two adopted children; one, age 20, was in the Navy, and the other, age 18, attended Washington University. Defendant received $400 a year for a road easement used for access to a landfill adjoining his farm. He received $4,265.16 in 1980 and $2,675 in 1979 for sale of other easements. He rented a vacant lot in Alton to an automobile dealer for $350 per month. In 1978 he sold certain real estate he owned outright for $32,500 on a contract for deed basis and had received all but $11,700 of that amount. Prior to 1961, he had operated a hamburger stand there but closed it due to poor health. He owned the grain farm, his house, and his 1980 Cadillac outright. He also owned a 1970 pickup truck with camper and a 16-foot boat. His savings account was under $2,000. He owned stock including General Motors (300 shares), Occidental Petroleum (300), American Telephone and Telegraph (100), A.A.R. Corporation (213), and Utah Power and Light (100). Defendant did not itemize deductions in his income tax returns. His total adjusted gross income was as follows: in 1980, $35,707.84; in 1979, $31,429.57; in 1978, $29,672.86; and in 1977, $29,189.99.

Plaintiff testified at the hearing on remand that her gross income as a secretary for 1980 was nearly $17,000, up $2,000 from 1979; her sole significant asset was her home, in which she had equity of about $18,700; she was receiving $900 a year from defendant as child support; and the child in question was in ninth grade and had been fitted with dental braces in 1979 at a cost of $1,650.

First, defendant argues that plaintiff failed to establish a substantial change of the parties’ circumstances necessary to sustain an increase in defendant’s child support obligation. In this regard, modification of child support obligations under the Illinois Marriage and Dissolution of Marriage Act is permitted only upon a showing of a substantial change in circumstances. (111. Rev. Stat. 1981, ch. 40, par. 510(a); Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, 642-43.) Section 9 of the Paternity Act states that the trial court retains jurisdiction to modify child support. It also provides that in determining the father’s support obligation, the court shall consider not only the father’s financial condition and circumstances but also the income and resources of the mother. Although section 9 does not purport to set forth a standard to be used in determining requests for modifications of child support (111. Rev. Stat. 1981, ch. 40, par. 1359), section 9 has been construed as requiring the same showing for a support modification as is required under the Illinois Marriage and Dissolution of Marriage Act, i.e., a substantial change in circumstances. People ex rel. Spicer v. Coleman (1979), 72 Ill. App. 3d 631, 637, 391 N.E.2d 46, 50.

It has been stated that under the Illinois Marriage and Dissolution of Marriage Act, a showing of a substantial change in circumstances amounts to a showing both that the needs of the child have increased since the initial judgment and that the means of the defendant have increased during that time. (See In re Sharp (1978), 65 Ill. App. 3d 945, 948, 382 N.E.2d 1279, 1282; Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 414, 214 N.E.2d 139, 141.) Since Kelleher, this standard has been stated less inflexibly:

“It is still incumbent upon the court to consider both the needs of the children and the ability of the former spouses to pay when considering a petition to increase child support. But, instead of marching in step to some precise equation of percentage change, the court considers the children’s needs as ranging from the bare necessities to the practical, to the useful, to the luxurious. Similarly, the court considers whether the means of each spouse has changed absolutely, has changed relative to the other, and has changed relative to the children’s needs. The court must then accommodate, or adapt, or harmonize all these considerations to determine whether an increase in support is justified. Child support payments must necessarily reflect a balance of the intensity of the child’s need with the ability of the parents to provide for that need.” (In re Sharp (1978), 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279, 1282-83.)

See Metcoff v. Metcoff (1972), 4 Ill. App. 3d 160, 161, 280 N.E.2d 572, 573; Harding v. Harding (1978), 59 Ill. App. 3d 25, 27, 374 N.E.2d 1304, 1306.

In the case at bar there was adequate showing that the child’s need had increased. True, inflation alone does not constitute a substantial change of circumstances (Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 185, 343 N.E.2d 640, 643); however, absent evidence to the contrary, we may assume that the child’s needs have increased due to rising costs of living and the child’s advancing age. (In re Sharp.) While defendant’s means as of 1967 were not shown, defendant was shown to have a present income far in excess of plaintiff’s and to own considerable real and personal property without significant indebtedness. It appears that increasing defendant’s support obligation will benefit the child significantly without hardship to defendant.

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Bluebook (online)
448 N.E.2d 204, 113 Ill. App. 3d 1084, 69 Ill. Dec. 744, 1983 Ill. App. LEXIS 1693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fink-v-roller-illappct-1983.