In Re Marriage of Chenoweth

481 N.E.2d 765, 134 Ill. App. 3d 1015, 89 Ill. Dec. 922, 1985 Ill. App. LEXIS 2199
CourtAppellate Court of Illinois
DecidedJune 20, 1985
Docket5-84-0500
StatusPublished
Cited by12 cases

This text of 481 N.E.2d 765 (In Re Marriage of Chenoweth) 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
In Re Marriage of Chenoweth, 481 N.E.2d 765, 134 Ill. App. 3d 1015, 89 Ill. Dec. 922, 1985 Ill. App. LEXIS 2199 (Ill. Ct. App. 1985).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Judith Ann Collins, appeals from an order entered by the circuit court of Jefferson County on July 3, 1984, allowing respondent’s, Richard Wayne Chenoweth’s, petition to abate child support, refusing to hold respondent in contempt of court, and refusing to award petitioner attorney fees and costs. For the reasons which follow, we affirm in part, reverse in part, and reverse and remand with directions in part.

The parties’ marriage was dissolved by the circuit court of Jefferson County on February 10, 1982. Respondent was ordered to pay the sum of $265 per month child support for two minor children. He was further ordered to keep certain health insurance in force for the benefit of the minor children, to pay premiums on life insurance policies for the benefit of the children, and to pay one-half of all dental bills for the children. On May 22, 1984, petitioner filed a petition to hold respondent in contempt for failing to pay child support, to provide for medical coverage, to pay his share of dental bills and to keep life insurance premiums current; she also prayed for allowance of reasonable attorney fees and costs. On June 15, 1984, respondent filed a petition to temporarily suspend or abate child support payments. A subsequent petition for attorney fees and costs was filed by petitioner. A consolidated hearing on all petitions was held on June 27, 1984. The court’s order of July 3, 1984, ordered respondent to cash certain United States savings bonds and to make available the sum of $2,500 of pension proceeds, upon receipt of same by respondent from the United States Government, for the payment of child support and other obligations for the benefit of the children as provided in the original dissolution decree. The court further ordered:

“E. That Defendant's Petition to Temporarily Suspend or Abate Child Support Payments shall be and is hereby granted after said United States Savings Bonds and said sum of $2,500.00 have been exhausted, [sic] and while Defendant is not gainfully employed.”

Petitioner contends on appeal that the trial court erred in (1) anticipatorily granting respondent’s petition to suspend child support payments on the contingencies of exhaustion of monies and nonemployment, and in failing to find a substantial change in circumstances; (2) failing to hold respondent in contempt and in failing to find nonpayment of child support not to be in good faith; and (3) failing to award petitioner attorney fees and costs.

There is no question that substantial economic reverses resulting from unemployment are proper circumstances to consider by the trial court in determining whether support obligations should be reduced or terminated, but such changes in economic circumstances must be fortuitous in nature, and not the result of deliberate action by the party seeking the reduction or termination. (In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 700-01, 460 N.E.2d 1.) In the case at bar, respondent made a unilateral decision in March of 1984 to quit his job paying $19,400 per year as gross income. He gave oral notice to his employer in late March of 1984 of voluntary termination of his employment followed by a written notice on April 3, 1984. His last day of work was April 25, 1984. By his own testimony at trial, respondent established that the last time he paid child support was in March of 1984. He further testified that he did not care what happened at the time he resigned and did not take into consideration the welfare of his children. His only argument is that he felt depressed at the time, although he never sought medical attention. Where the change in circumstances was brought about by the party seeking the reduction in support payments, the court has not hesitated to reverse the granting of such reductions. (Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 891, 368 N.E.2d 153.) Unless good faith is shown, a voluntary change in or termination of employment will not be considered a sufficient material change to warrant abatement or modification of child support payments. Glass v. Pietchel (1976), 42 Ill. App. 3d 240, 242, 355 N.E.2d 750.

In addition, the order of the trial court necessarily depends on the respondent receiving pension funds. The fact that respondent is expected, to receive pension funds does not mean he will receive such funds. Such expectancies should not and cannot be considered by the trial court. (Schwartz v. Schwartz (1976), 38 Ill. App. 3d 959, 349 N.E.2d 567.) Also, the trial court’s order provided for suspension of child support payments at such time as certain funds were exhausted and while respondent was not gainfully employed. This provision is one that may become effective several months or years after the order was entered. There is no way the court could determine what the needs of the minor children would be at that time. Speculation of this nature was addressed by this court in Barrow v. Barrow (1975), 33 Ill. App. 3d 654, 658, 342 N.E.2d 237, when, in reversing the trial court, we said, “In our opinion the court’s decision should reflect the circumstances at the time the order is entered. If further changes are to be made, they should be made on petition of one of the parties and after hearing pertinent evidence regarding the change in circumstances ***.” We agree with the petitioner that the trial court erred in modifying the child support payments.

Regarding the trial court’s failure to hold defendant in contempt of court, a prima facie showing of contempt was made by the undisputed evidence that respondent had failed to make the child support payments as provided in the judgment of dissolution. He admitted in his own testimony that he last paid child support in March of 1984. The burden then shifted to respondent to show that the failure to pay was not wilful, but due entirely to his inability to pay. “It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.” (White v. Adolph (1940), 305 Ill. App. 76, 79, 26 N.E.2d 992.) Nevertheless, financial inability to comply with an order must be shown by definite and explicit evidence. (First National Bank & Trust Co. v. Desaro (1963), 43 Ill. App. 2d 153, 159, 193 N.E.2d 113.) That burden is not met by testimony of a general nature with regard to financial status. Where a party seeks to show that failure to pay is due to inability, that party must show, with reasonable certainty, the amount of money he has received since the order was made and that it has been disbursed in the payment of expenses which, under the law, he should pay before making any payment for support under the judgment. (In re Marriage of Ramos (1984), 126 Ill. App. 3d 391, 398, 466 N.E.2d 1016

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Bluebook (online)
481 N.E.2d 765, 134 Ill. App. 3d 1015, 89 Ill. Dec. 922, 1985 Ill. App. LEXIS 2199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-chenoweth-illappct-1985.