Marriage of Zukausky, In re
| Decision Date | 11 May 1993 |
| Docket Number | No. 2-92-1050,2-92-1050 |
| Citation | 184 Ill.Dec. 367,244 Ill.App.3d 614,613 N.E.2d 394 |
| Parties | , 184 Ill.Dec. 367 In re Marriage of Linda H. ZUKAUSKY, n/k/a Linda H. Smart, Petitioner-Appellee, and Keith E. Zukausky, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
William J. Parkhurst, Geneva, for Keith E. Zukausky.
Sharon Brennan-O'Neil, Geneva, for Linda H. Zukausky.
Respondent, Keith Zukausky (the father) appeals after the trial court ordered that child support be increased and extended past his minor daughter's eighteenth birthday, that he pay college expenses for his adult son, and that he pay arrearages for past-due child support. On appeal, the father contends that (1) the trial court lacked jurisdiction to increase child support because Linda Smart (the mother) had not filed a motion to increase child support; (2) the increase in child support was an abuse of the trial court's discretion; (3) the trial court erred when ruling on the duration of child support for his minor daughter when no evidence had been presented on that issue; (4) the trial court improperly excluded evidence of his daughter's projected standard of living if the marriage had not been dissolved; (5) the setting of child support arrearages was unsupported by the evidence; and (6) the setting of contribution for college expenses was an abuse of the trial court's discretion.
The parties were married in December 1969 and had two children, Colin and Tascha. The marriage was dissolved on October 22, 1982. Under a supplemental order entered on January 6, 1983, the father was ordered to pay $625 per month for child support in bimonthly installments of $312.50. The order did not specify that the support was a specific amount per child or that support ceased or was reduced when the children reached 18 years of age or graduated from high school.
Colin graduated from high school in June 1991. Believing that he was no longer obligated to provide support for Colin, the father unilaterally reduced his child support payment by one-half to $312.50 per month. On December 18, 1992, the clerk of Kane County sent a letter to the father informing him that the supplemental order did not allow for the reduction of child support when Colin became 18 years old. The clerk wrote that the father would have to petition the court to modify the order. The letter also informed the father that, as of December 1, 1991, the amount of child support in arrears was $1,874.99.
The father was not present in court when the trial court set the arrearage amount at $2,499.99 in an order filed on January 9, 1992. On January 29, 1992, the father filed a motion to vacate the January 9 order and a petition to modify the dissolution judgment, seeking to reduce child support. On April 8, 1992, the mother filed a petition for contribution to college expenses as Colin had enrolled as full-time student at Elgin Community College (ECC).
A hearing was held on the parties' motions on July 21, 1992. The father testified that he had recently moved out of his marital residence in Michigan, which he shared with his second wife and their daughter, Abby. Their troubles stemmed, according to the father, partly from allegations that he had sexually abused Tascha, his daughter in Illinois. The Department of Children and Family Services (DCFS) closed the case for lack of evidence.
The father then presented as evidence a copy of a temporary order for custody, support, and visitation entered in Michigan. The father voluntarily agreed to pay $204 a week for the support of Abby and $816 a week "alimony" to his second wife. The father testified that this $53,000 yearly obligation, coupled with his living expenses, leaves him with a net income of approximately $12,000 a year. The father acknowledged that he was the party who filed for divorce and did so after the petition for college expenses had been filed by the mother in Illinois, although he claimed that these pleadings were not linked. The father also admitted that he voluntarily paid a $27,000 hospital bill for his second wife's son, for whom he had no legal obligation to provide medical benefits.
Colin Zukausky testified that he attended ECC and paid approximately $1,650 for tuition, fees, and books for the previous school year. He also worked 35 to 40 hours a week to finance his college education. After acquiring his associate's degree at ECC, Colin plans to transfer to Southern Illinois University (SIU) for his final two years. Upon further examination by the court, Colin testified that his transportation expenses, i.e. gas, insurance, and car maintenance, were approximately $1,500 a year. Colin anticipated that the cost for his upcoming school year at ECC would be approximately $2,000.
The mother testified that her precarious financial condition prevented her from contributing toward Colin's college education. The family's adjusted gross income for 1991 was approximately $33,800. She and her second husband drove older vehicles, and their home was in need of repair. The mother had to quit her job as a waitress in July 1991 because she broke her ankle. She has a college degree in sociology and can type 91 words per minute. She further testified that she planned to reregister as a substitute teacher for the coming school year and attempt to obtain her teaching certification.
After the arguments of counsel, the trial judge stated he would make a decision in a few days but wanted to express some observations. The judge was concerned that the father's child in Michigan was to receive $10,816 a year for support while Tascha, the father's daughter in Illinois, would receive only $3,784 (actually $3,744) a year, based on the father's recommendation of $312 a month. The judge found that to be "inequitable." The judge also stated that the father's first family was "subsidizing" the second family when the second family received $53,000 a year for alimony and support, leaving little money for child support and college expenses for the father's children in Illinois. The judge said he would ask the father to pay $2,000 for Colin's second year at ECC and 75% of Colin's expenses, including tuition, fees, books, and room and board, when he attended SIU. The judge requested that an order be written to that effect and continued the decision on the issue of child support. Such an order was entered on August 5, 1992, specifying that the father's obligation to pay for schooling at SIU was limited to no more than three academic years.
On August 4, 1992, the trial court rendered a decision on the child support issue. The trial court found that the Michigan order "was not entered in good faith but rather for the purposes of reducing [the father's] ability to pay child support in Illinois." Further, the father has a gross income of at least $83,000 and voluntarily agreed to pay $53,000 in support and "alimony" to his Michigan family. The court ordered that the father pay $204 a week in support for Tascha because he pays the same amount to support his minor child in Michigan. Such support would continue "until Tascha becomes 18 years of age or for one summer school session beyond her 18th birthday." The trial judge stated that he was persuaded to increase child support because the father had paid a $27,000 medical bill for his second wife's son, a child who was not the father's legal responsibility. Finally, the court ordered that the father pay arrearages as "computed from the delinquent amounts now showing on the [c]lerk of the [c]ourt's records," in weekly payments of not less than $25. The father thereafter filed a timely appeal.
We first address the father's contention that the trial court lacked jurisdiction to increase child support because the mother had filed no motion to increase support. The father also claims that under the local rules of the sixteenth judicial circuit, the mother was required to file an affidavit of income and expenses and that the court was to examine the affidavit when modifying child support. (16th Jud. Cir. Rules 15.05, 15.13 (1988).) Because no affidavit was filed, the father claims that no formal discovery took place and little evidence was adduced at trial concerning Tascha's financial condition. He argues that the mother's failure to file a motion to modify support made the order voidable and requires that we reverse the judgment of the trial court.
The mother contends that the trial court had jurisdiction to increase support because the original dissolution judgment contained a clause which provided that the trial court had continuing jurisdiction over the cause. Further, the father's petition to modify the judgment was the procedural avenue that allowed the trial court to increase child support. The mother also claims that the father's argument pertaining to the affidavit of income and expenses is waived because the issue was not presented during trial. Absent waiver, the mother argues that the father was the party responsible for filing an affidavit because he was the party who petitioned the court to modify support.
Under section 502 of the Illinois Marriage and Dissolution of Marriage Act (Act), in a dissolution judgment, the terms related to the support, custody, and visitation of children are modifiable. (Ill.Rev.Stat.1991, ch. 40, par. 502(f).) If a petition to modify is filed, the judgment may be modified by order of the court. (Ill.Rev.Stat.1991, ch. 40, par. 511.) Support may be modified only as to installments accruing after the nonmoving party has been notified that a motion to modify has been filed and only upon a showing of a substantial change in circumstances. (Ill.Rev.Stat.1991, ch. 40, par. 510(a).) When filing and notice have been achieved, the circuit court which originally entered the judgment has jurisdiction over the subject matter and the parties. Ottwell v. Ottwell (1988), 167 Ill.App.3d 901, 908, 118 Ill.Dec. 873, 522...
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