McManus v. McManus

• Citation: 38 Ill.App.3d 645,348 N.E.2d 507
• Decision Date: 28 May 1976
• Docket Number: No. 75--234,75--234
• Parties: Rebecca Dale McMANUS, Plaintiff-Appellee, v. Johnnie Michael McMANUS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 507

348 N.E.2d 507

38 Ill.App.3d 645

Rebecca Dale McMANUS, Plaintiff-Appellee, v. Johnnie Michael McMANUS, Defendant-Appellant.

No. 75--234.

Appellate Court of Illinois, Fifth District.

May 28, 1976.

Richard C. Cochran and Joe Harrison, Cochran & Harrison, Fairfield, for defendant-appellant.

Randall S. Quindry, Fairfield, for plaintiff-appellee.

GEORGE J. MORAN, Justice:

The defendant, Johnnie McManus, appeals from a judgment of the circuit court of Wayne County which granted the plaintiff, Rebecca McManus, a divorce, awarded her custody of the parties' minor daughter, and ordered the defendant to pay various amounts to the plaintiff and her parents.

A daughter was born to the plaintiff and defendant on August 18, 1973. The plaintiff and defendant were married about three months later. They lived together for a week, and then the defendant, who was in the military service, returned to his station in another state. The parties did not live together again.

On December 12, 1974, the plaintiff sued for divorce and alleged the defendant had been guilty of extreme and repeated mental cruelty toward her. At trial, the plaintiff introduced evidence which showed that $110 per month was needed for the child's support, and that the plaintiff's parents had spent $859.16 on the medical bills of the plaintiff and her child. Of the latter amount, the parents spent $643.33 before the plaintiff and defendant were married and $215.83 after they were married.

The circuit court granted the plaintiff a divorce. The court awarded custody of the parties' daughter to the plaintiff and gave the defendant visitation rights.

The visitation rights given the defendant were as follows. Between April 20, 1975, and the child's second birthday, August 18, 1975, the defendant was to be allowed to visit the child from 1:00 p.m. to 5:00 p.m. on the third Sunday of every month. Between the child's second and sixth birthdays, the defendant is to be allowed to visit her from 1:00 p.m. on the third Sunday of every month until 2:00 p.m. on the following Monday. Commenciing in 1980, the defendant will be allowed to have the child during two weeks of every year.

The circuit court ordered the defendant to pay child support in steadily increasing amounts. He must pay $70 per month until the child's sixth birthday. Then, until the child's tenth birthday, he will have to pay $140 per month. Between the child's tenth and fourteenth birthdays, he will have to pay $180 per month. Afterward, until the child's eighteenth birthday, he will have to pay $200 per month.

The court also ordered the defendant to pay the plaintiff $5 per month periodic alimony, $150 for attorneys' fees, and an amount sufficient to pay all her court costs. In addition, the court directed the defendant to pay the plaintiff's parents $859.16 to reimburse them for the medical expenses they had incurred for the plaintiff and the child.

On appeal, the defendant argues, first, that the court abused its discretion by giving him only limited visitation rights. He asserts, second, that the court abused its discretion by ordering him to pay child support which increases steadily as the child grows older, without any further hearing or decree by the court. He argues, third, that the court abused its discretion by ordering him to pay $5 per month periodic alimony, $150 attorneys' fees, and suit money to the plaintiff. The defendant argues, fourth, that the court erred in directing him to pay any money to the plaintiff's parents.

A circuit court, in granting visitation rights to a parent who does not have custody of a child, must seek primarily to promote the child's welfare. Miezio v. Miezio, 6 Ill.2d 469, 129 N.E.2d 20; Malone v. Malone, 5 Ill.App.2d 425, 126 N.E.2d 505. The welfare of the child usually requires that the parent who does not have custody of the child be given liberal visitation rights, so the child will not be estranged from that parent. Kay v. Kay, 22 Ill.App.3d 530, 318 N.E.2d 9; Chmelik v. Chmelik, 25 Ill.App.2d 192, 166 N.E.2d 101. A circuit court possesses broad discretion in awarding visitation rights, and the court's award will be modified on appeal only if it causes manifest injustice to the child or either of the parents. Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Miezio v. Miezio, supra.

The initial part of the grant of visitation rights, which allowed the defendant four hours per month to visit his daughter, was so restricted as to cause manifest injustice to the defendant. This part of the award, however, became ineffective on August 18, 1975. The question of the validity of this portion of the grant is thus moot, and cannot now be the basis for complaint. See National Jockey Club v. Illinois Racing Commission, 364 Ill. 630, 5 N.E.2d 224.

The rest of the award of visitation rights, which provides the defendant about one full day per month to visit the child, is limited, but not so limited as to cause manifest injustice to the defendant or child. This part of the award falls within the area of the circuit court's broad discretion and must be affirmed.

In ordering the payment of child support, a circuit court must consider the needs of the child, the separate income of the wife, and the income of the husband. Knox v. Knox, 31 Ill.App.3d 816, 334 N.E.2d 891; Sandberg v. Sandberg, 11 Ill.App.3d 495, 297 N.E.2d 654. Because changes in these facts cannot be anticipated with accuracy, a circuit court should...