Gibson v. Barton

• Decision Date: 13 October 1983
• Docket Number: Nos. 4-82-0663,4-83-0125,s. 4-82-0663
• Citation: 455 N.E.2d 282,118 Ill.App.3d 576,74 Ill.Dec. 252
• Parties: , 74 Ill.Dec. 252 Bonnie GIBSON, formerly Bonnie Barton, Plaintiff-Petitioner-Appellee, v. James Olen BARTON, Defendant-Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 282

455 N.E.2d 282

118 Ill.App.3d 576, 74 Ill.Dec. 252

Bonnie GIBSON, formerly Bonnie Barton, Plaintiff-Petitioner-Appellee, v. James Olen BARTON, Defendant-Respondent-Appellant.

Nos. 4-82-0663, 4-83-0125.

Appellate Court of Illinois Fourth District.

Oct. 13, 1983.

Rehearing and Alternative Request for

Certificate of Importance Denied

Nov. 9, 1983.

Herrick, Rudasill & Moss, Clinton, for defendant-respondent-appellant; Ray Moss, Clinton, of counsel.

Lamkin & Lamkin, P.C., Clinton, for plaintiff-petitioner-appellee; Phillip R. Lamkin, Clinton, of counsel.

Stephen Myers, Clinton, guardian ad litem.

TRAPP, Justice:

Respondent, James Barton appeals from an order modifying visitation rights, increasing child support, and, in cause No. 483-0125, from an order finding him in contempt for failing to pay child support. We affirm in part and reverse in part.

The current appeal arises out of a petition filed by petitioner, in September of 1981, to increase child support and modify visitation. Respondent denied the allegations of the petition and counterpetitioned for a change in custody, with a request that a guardian ad litem be appointed for the children. The matters were heard jointly and on June 8, 1982, the trial court entered a modified order reducing visitation rights, increasing respondent's support obligation to $640 per month and denying the counterpetition for a change in custody. In cause No. 483-0125, respondent has appealed an order of December 23, 1982, finding him in contempt for failing to pay approximately $1,400 in accrued child support.

Respondent first contends that the trial court erred in reducing his visitation rights without making a finding or hearing evidence to support a finding that the current visitation arrangement was seriously endangering the children's physical, mental, moral, or emotional health. Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act provides, in part:

"[T]he court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health." Ill.Rev.Stat.1981, ch. 40, par. 607(c).

The original divorce decree provided for "reasonable visitation" to be exercised by respondent. In 1974, the order was clarified by the court and specific visitation periods were prescribed. This order provided visitation on alternative weekends from 5 p.m. on Friday until 7 p.m. Sunday, with four weeks of summer vacation. The petition at issue here requested the court to modify these periods due to the fact that the children had weekend school activities which conflicted with the scheduling. No evidence was introduced, nor were allegations made, that the current visitation schedule was endangering seriously the children's physical, mental, moral, or emotional health, but all of the children did testify that they had conflicting school activities and requested a change in the schedule. The court modified visitation "because of the activities of the children" from Saturday noon until Sunday at 7 p.m., summer visitation was reduced to two weeks, and specified holidays were to be alternated.

Respondent's contention that explicit findings are required to "restrict" a parent's visitation rights is premised on his assumption that the court's decree was the equivalent of a restriction of visitation rights. We disagree. Section 607 of the Illinois Marriage and Dissolution of Marriage Act contains several standards concerning visitation. Section 607(a) states that a noncustodial parent "is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health." (Ill.Rev.Stat.1981, ch. 40, par. 607(a).) Section 607(c) requires the court to consider the children's best interests whenever making any modification and the second sentence of that subparagraph prohibits a restriction of visitation rights unless the court finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.

In interpreting a statute a court must give consideration to each word and provision of the statute to ascertain the statute's meaning and promote its essential purpose. (Miller v. Department of Registration & Education (1979), 75 Ill.2d 76, 25 Ill.Dec. 644, 387 N.E.2d 300.) When the standard of section 607(a) is compared with that of the second part of section 607(c) we cannot escape the conclusion that some difference in the scope of the statute was intended by the legislature. Under respondent's interpretation, the standard of section 607(c) would be subsumed within the provision of section 607(a) rendering section 607(c) essentially meaningless.

The word "restrict" in its ordinary sense means "to keep within certain limits." (Webster's New World Dictionary 1213 (Second College Edition 1976).) Such restrictions might be a prohibition of overnight visitation (see Crichton v. Crichton (1979), 75 Ill.App.3d 326, 31 Ill.Dec. 12, 393 N.E.2d 1319), a requirement that visitation occur in the custodial parent's home, or a requirement that visitation occur outside the home of the noncustodial parent. (In re Marriage of Lawver (1980), 82 Ill.App.3d 198, 37 Ill.Dec. 540, 402 N.E.2d 430.) The court's reinterpretation of its 1974 decree was made with the children's best interests in mind and is fully supported by the testimony at the hearing. The order is well within the broad measure of discretionary authority given the trial court in these matters and we cannot say that an abuse has been shown. (In re Marriage of Brophy (1981), 96 Ill.App.3d 1108, 52 Ill.Dec. 236, 421 N.E.2d 1308.) In light of our interpretation of the statute, we need not consider whether specific findings are required to restrict a noncustodial parent's visitation rights but merely note that the appellate court is split on the issue. In re Marriage of Solomon (1st Dist.1980), 84 Ill.App.3d 901, 40 Ill.Dec. 197, 405 N.E.2d 1289; but see In re Marriage of Johnson (5th Dist.1981), 100 Ill.App.3d 767, 56 Ill.Dec. 294, 427 N.E.2d 374.

Respondent's next contention is that the trial court abused its discretion in modifying his child support obligation by increasing his support payments from $45 per week, as provided under a 1974 order, to $640 per month. We agree with respondent that this is a significant increase from the 1974 order but do not agree that the modification is an abuse of discretion. In re Marriage of Dwan (1982), 108 Ill.App.3d 808, 64 Ill.Dec. 340, 439 N.E.2d 1005.

In making or modifying an award of child support, the trial court must consider all relevant matters, including, the financial resources and needs of the parties, the standard of living the children would have enjoyed if the marriage had not been dissolved, the resources of the children, the physical and emotional condition of the children, and their educational needs. (Ill.Rev.Stat.1981, ch. 40, par. 505(a).) The evidence indicates both increased needs of the children and an increased ability of respondent to pay. Without unduly lengthening this opinion by repetition of all the evidence of the parties' financial circumstances, suffice it to say we believe that the evidence presented below supports the order entered.

In 1974, respondent was earning $540 net per month while in 1981 he was earning $1,600 net monthly. He emphasizes that the order is a 328% increase, but we note that a corresponding increase in his income occurred during this period. The record reflects a careful consideration by the trial court of the appropriate factors and we cannot say that the current order is an abuse of discretion.

Within 30 days of the trial court's order, respondent filed a motion to introduce additional evidence that he had suffered a reduction in salary of approximately $400 per month. This motion was denied, and in an offer of proof, respondent introduced check stubs and a letter from his employer indicating that his wages would be reduced approximately $300 per month. On appeal, respondent argues that this "newly discovered evidence" was not in existence at the time of trial and would probably have changed the result of trial. Respondent suggests that the court abused its discretion in refusing to consider this evidence.

Post-trial motions based on newly discovered evidence are not uncommon in dissolution actions. In In re Marriage of Hopkins (1982), 106 Ill.App.3d 135, 62 Ill.Dec. 99, 435 N.E.2d 897, this court found no abuse of discretion in the denial of a post-trial motion to hear additional evidence regarding the nature of a marital debt. In that case we found that the additional evidence was immaterial to the resolution of the allocation of the parties' marital debts and would not have affected the court's decree. In In re Marriage of Sanborn (1979), 78 Ill.App.3d 146, 33 Ill.Dec. 468, 396 N.E.2d 1192, the court upheld the denial of a post-trial motion which sought to introduce allegedly newly discovered evidence of an increase in the value of the parties' marital residence. The increase in value was alleged to have occurred in between the date of a pretrial stipulation and the time that the court divided the marital estate. In upholding the denial of the post-trial motion, the appellate court stated that to justify granting a...