Green v. Green

• Court: Appellate Court of Illinois
• Writing for the Court: CREBS
• Citation: Green v. Green, 315 N.E.2d 324, 21 Ill.App.3d 396 (Ill. App. 1974)
• Decision Date: 08 August 1974
• Docket Number: No. 73--370,73--370
• Parties: James C. GREEN, Appellant, v. Shirley J. GREEN, Appellee.

Page 324

315 N.E.2d 324

21 Ill.App.3d 396

James C. GREEN, Appellant, v. Shirley J. GREEN, Appellee.

No. 73--370.

Appellate Court of Illinois, Fifth District.

Aug. 8, 1974.

Cohn, Carr, Korein, Kunin & Brennan, East St. Louis, for appellant; Rex Carr, East St. Louis, of counsel.

Malcolm D. Durr and James R. Heil, Alton, for appellee.

CREBS, Justice.

This is an appeal by the plaintiff husband from an order of the Circuit Court of Madison County awarding a judgment to the defendant wife for past due alimony and child support. Appellant contends that equitable principles require the setting aside of such judgment because the circumstances show that his default and arrearage in payments were beyond his control. He also contends that the court's interpretation of certain portions of the original support order was incorrect.

A full understanding of the issues necessitates a detailed summary of the background of facts and pleadings leading up to the judgment in question. Following a complaint for divorce filed by her husband, defendant wife filed a counterclaim for separate maintenance and a petition for temporary alimony and child support. Based on an agreement between the parties the court entered his own hand-written order on April 6, 1972, providing, among other things, that the husband pay to the wife as and for temporary child support and alimony the sum of $200 per week beginning April 10, 1972, and further, that he should 'pay all household expenses and utility payments.'

In February 1973, the wife filed a petition for citation seeking to hold her husband in contempt for failure to comply with said order, and requesting a judgment for the amount he was in arrears, plus attorney fees and court costs. On April 9, just prior to the hearing on the citation petition, the husband filed a petition to modify the original order, requesting a reduction in his support and alimony payments because of a drastic reduction in his income, and further asking for an interpretation of that portion of the order referring to payment of household and utility expenses. The court refused to hear the petition to modify, stating it would be set for a later time, and then proceeded with the hearing on the citation. Mrs. Green testified that her husband was in arrears $3200. in weekly payments and that he had not paid any household or utility expenses. These latter expenses she interpreted to mean mortgage payments, house and individual insurance policy premiums, repairs, utility bills, donations, vacations, books, magazines, etc., and she estimated them to be $1072. per month. Mr. Green did not testify but from his answers to interrogatories previously filed in the case it was apparent that at the time of the original order he was making $600. per week. However, within five days after the entry of this order his company was placed in receivership causing him to lose not only his income but all of his assets. His counsel admitted that since plaintiff made no effort to seek a modification of the order his wife probably did have a vested right to the unpaid support money at the rate of $200. per week, but he argued that she was not entitled to household and utility expenses as that provision was intended to apply only to such expenses due at the time the order was entered and not to future expenses, and certainly not to expenses of the type enumerated by Mrs. Green. The court commented that the order relative to these expenses appeared to him to be ambiguous and that he was concerned with what it really meant. However, after a recess, the court announced from the bench that having considered all of the testimony, and the answers to the interrogatories as well, he found that the evidence supported an arrearage of $3200. in weekly payments and $10,720. in household expenses, or a total of $13,600. up to the date of filing of the petition for citation. He then stated that, '* * * the court enters judgment for defendant and against plaintiff for said amount'. In addition, the court found that the failure to pay household expenses was not wilful, but that the failure to pay the weekly amounts was wilful, and plaintiff was sentenced to serve seven days in the county jail. Further, the clerk was directed to set a date for a hearing on plaintiff's petition to modify and also a date for a hearing of the case on its merits.

These pronouncements from the bench show up on the docket for April 9, 1973, as follows:

'Hearing held on Pet. for Citation filed on Feb. 2, 1973. Parties and attorneys present and ready. Witnesses sworn. Testimony presented. (Tape 144--side 2) Order entered. See Order. A. Greenwood.'

The order referred to, hand-written and signed by the judge, is also dated April 9, 1973, and reads as follows:

'Hearing held on Pet. for Citation filed Feb. 2, 1973, court finds:

(1) Arrearage owed by Plaintiff to Defendant as of date of Pet. for Cit. Feb. 2, 1973 to be $13600.00.

(2) Judgment should be entered for Defendant against Plaintiff for $13600.

(3) Defendant's request for Atty Fees and Costs reversed.

(4) Plaintiff in wilful contempt for failure to pay as ordered and specifically the wilfulness in paying only $100/wk. rather than 200.00/wk. as ordered.

(5) Plaintiff in technical contempt but not wilful for failure to pay the household expenses of defendant.

Wherefore it is Ordered:

A. Defendant jailed in Madison Co., Ill. Jail for 7 days as punishment for his wilful contempt.

B. Atty Fees and costs are reserved until final hearing.

C. Clerk to set Pet. to Modify and case on merits on next available setting.

(Clerk to send Copies to Attys P. Theis and M. Durr.)

Arthur L. Greenwood

Associate Circuit Judge'

In compliance with this order Mr. Green was confined to the county jail for seven days. Then, on April 26, Mrs. Green filed another petition seeking to hold her husband in contempt again for failing to pay the arrearage of $13600 above mentioned.

On May 11, 1973, plaintiff husband filed the following:

1) Amended petition to modify the original support order of April 6, 1972.

2) Motion to set aside the judgment of April 9, 1973, finding him in arrears in the amount of $13600.

3) Answer to petition seeking to hold him contempt again.

4) Amended answers to interrogatories, setting out his financial status and income.

On May 30, and continuing on July 3, 1973, the court heard evidence offered by the parties in support of defendant's second petition for citation, and in support of plaintiff's motion to set aside the arrearage judgment of April 9, 1973, and in support of his amended petition to modify the original support order of April 6, 1972.

On July 10, 1973, having taken the matter under advisement, the court entered its written order with directions to the clerk to mail copies to counsel. This order found that plaintiff had failed to prove that he was legally entitled to set aside the arrearage judgment of April 9, but that he did prove changed circumstances sufficient to justify a modification of the original support order. It then ordered that the arrearage judgment of April 9, remain in full force and effect; that judgment be entered against plaintiff for additional arrearage of $5036. This sum represented cash payments due at rate of $200 per week from April 9, to July 3, and household payments due at rate of $1072 per month for three months, or a total of $5616 less $580 actually paid by plaintiff during that time. In addition, it ordered a modification of the original support order, and provided that henceforth plaintiff should pay $100 per month for child support and $200 per month for alimony until the further order of court. It is from this order that the present appeal has been taken.

Plaintiff argues that the trial court erred in refusing to set aside the April 9th arrearage judgment of $13600, and in entering the additional judgment of $5036 on July 10, citing the undisputed evidence of his financial inability to pay such sums. He cites several cases to the effect that an aggrieved party has a right to appeal from an order allowing temporary alimony and support, and that a court of review should reverse where the record is insufficient to prove that the financial ability and circumstances of the husband are such that he is unable to pay the amount ordered. (Dejoie v. Dejoie, 6 Ill.App.3d 381, 286 N.E.2d 38; Rabin v. Rabin, 57 Ill.App.2d 193, 206 N.E.2d 850; Micelli v. Micelli, 45 Ill.App.2d 159, 195 N.E.2d 233.) We agree with this principle but find it inapplicable here. Each of the cases cited involves a direct appeal from the order making the award, whereas in the facts before us the award went unchallenged for several months during which time the plaintiff on his own initiative either totally refused to comply or chose to pay less than ordered. This, of course, cannot be condoned, nor can plaintiff expect any redress. It is well established that past due installments of alimony and support money become vested, and, though a court has power to modify alimony and maintenance terms as to future payments, it has no such power to adjust or change any amounts past due. (Needler v. Needler, 131 Ill.App.2d 11, 268 N.E.2d 517; Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139.) Applying this rule to the present facts we conclude that as to past due cash installments of alimony and support payments there can be no adjustment in the terms of the...