In re Marriage of Watling

538 N.E.2d 1274, 183 Ill. App. 3d 18, 131 Ill. Dec. 718, 1989 Ill. App. LEXIS 667
CourtAppellate Court of Illinois
DecidedMay 11, 1989
DocketNo. 2—88—0610
StatusPublished
Cited by10 cases

This text of 538 N.E.2d 1274 (In re Marriage of Watling) 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 Watling, 538 N.E.2d 1274, 183 Ill. App. 3d 18, 131 Ill. Dec. 718, 1989 Ill. App. LEXIS 667 (Ill. Ct. App. 1989).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, David Watling (David), appeals from May 27, 1988, orders of the circuit court of Lake County. The first ruled that David is not the father of Rebecca Holtzman, but nevertheless, he must pay temporary child support from October 13, 1987, to February 22, 1988. The second order found him in contempt for failure to pay said support and committed him to the county jail until such time as he paid $250 in child support arrearage.

Initially, we find that respondent’s motion to strike David’s brief is unpersuasive, and we, therefore, deny said motion.

The parties were married on March 13, 1976. On October 13, 1987, after a prolonged trial, the trial court entered a judgment for dissolution of marriage dissolving the marriage, dividing certain property, and reserving issues of child support, permanent visitation, and sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). During the marriage, two children were born to respondent, Lauretta Watling (Lauretta). Rebecca was bom on October 7, 1979, and Sarah Elizabeth was born on September 30, 1986. Sarah Elizabeth, in a separate Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2510 et seq.) proceeding, was determined to be the daughter of Dr. Stephen Holtzman and Lauretta.

In 1978, Lauretta became involved in an affair with her employer, Dr. Holtzman. After Rebecca’s birth in 1979, Lauretta spent more and more time with Holtzman so that David became the principal parent for Rebecca. In 1984, Holtzman obtained a divorce from his wife, and Lauretta sought a divorce from David, advising him that Rebecca was Holtzman’s daughter. While this action was pending, Lauretta had physical custody of Rebecca, who would spend unspecified visitation periods with David.

On October 5, 1987, prior to the e.ntry of the judgment for dissolution of marriage, Lauretta filed a petition for temporary child support for Rebecca, which contained the following paragraphs:

“2. That your Petitioner has always maintained the position thar [sic] DAVID ALLEN WATLING is not the father of said child.
3. That DAVID ALLEN WATLING has admitted under oath that he is not the father of Rebecca, and by stipulation of the parties, the result of blood tests have been admitted herein, which show the possibility that DAVID ALLEN WATLING is the father of said child is 0.00 percent and that the possibility that he is not the father of said child is 100 percent.
* * *
11. That in the exercise of its equitable and legal powers, this Court should order David Allen Watling to contribute to the support of Rebecca.”

On October 13, 1987, the court entered an order directing David to pay Lauretta the sum of $120 per week “as and for the support of Rebecca.” The court further ordered the payments were to be made through the clerk of the circuit court and that they were retroactive to “October 12,1987 [sic].”

On October 23, 1987, David filed a petition to reduce tiie temporary child support payment to $50 per week and on November 2, 1987, filed a petition to enter final judgment on visitation /and child support. David, in the petition to enter final judgment on visitation and child support, stated:

“5. The Marriage and Dissolution Act clearly authorizes this Court to order payment of support by David Watling because, and only because he is the father of Rebecca. If he were not Rebecca’s father this Court could not lawfully order him to pay support.”

David sought to bar Lauretta from proceeding with any further litigation which would change his position as Rebecca’s father, and he moved the court to enter final orders on visitation and child support. On November 3, 1987, the court denied the petition to reduce the amount of child support, and David paid the sum of $250 in overdue temporary child support to the clerk of the circuit court. The court did not rule on David’s motion asking for final orders with respect to child support and visitation.

On December 17, 1987, David filed a petition to reduce child support and set Christmas visitation, alleging that the amount ordered per week was 50% of his pay because of reduced work. On January 8, 1988, Lauretta filed a petition for rule to show cause alleging that David had not made all of the child support payments, and on January 13,1988, she filed a response to the petition to reduce child support.

On February 19, 1988, in a separate action under the act, a jury entered a verdict that David and Holtzman were not the natural fathers of Rebecca. The court which presided over this action ordered:

“[N]either David Watling [n]or Stephen Holtzman shall pay child support on account of Rebecca.”

Lauretta filed a motion to terminate visitation for the reason that David' was not the natural father and a petition for rule to show cause to compel him to pay child support. On February 25, 1988, the court suspended visitation. On March 15, 1988, the court issued rules to show cause why David should not be held in contempt for failing to pay overdue temporary child support.

On April 14, 1988, David filed a petition for declaration of equitable parenthood or, in the alternative, for adoption of Rebecca, and he filed a response to the rule to show cause with respect to temporary child support.

On May 13, 1988, Lauretta Watling filed a response to the petition for equitable parentage or, in the alternative, for adoption, admitting that in cause No. 85 — F—1340, and pursuant to a jury verdict, a judgment had been entered which declared that neither David nor Holtzman is the father of Rebecca.

On May 27, 1988, the court conducted a hearing regarding the various rules to show cause. The court found that there was an arrearage as of May 27, 1988, in the amount of $1,320 for child support payments and that David had not given any legally significant reasons for his failure to comply with the order. The court further made these findings:

“1. Until February 22, 1988 David Allen Watling was the father of Rebecca for purposes of support order.
2. That the child support order of October 13, 1987 was a final and appealable order and even if not then;
3. That the jury finding in 85 F 1340 cannot be applied retroactively.”

The court denied David’s motion to vacate the October 13, 1987, order, and it found that his obligation to pay child support terminated February 22, 1988. Further, the court ordered him to jail for contempt, with the provision that he could purge himself of said contempt if he paid $250 of the arrearage. David was taken to jail, and subsequently, he was released upon payment of the $250.

On appeal, David argues that (1) the trial court erred in ruling that the order for temporary child support was a final and appealable order; (2) the trial court should have set aside the temporary child support order; and (3) the circumstances did not justify a finding of contempt.

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Cite This Page — Counsel Stack

Bluebook (online)
538 N.E.2d 1274, 183 Ill. App. 3d 18, 131 Ill. Dec. 718, 1989 Ill. App. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-watling-illappct-1989.