Page v. Page

• Decision Date: 31 July 1975
• Docket Number: No. 74--274,74--274
• Parties: Connie PAGE, known by remarriage as Connie R. Peterson, Plaintiff-Appellant, v. Thomas PAGE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 212

334 N.E.2d 212

30 Ill.App.3d 514

Connie PAGE, known by remarriage as Connie R. Peterson Plaintiff-Appellant, v. Thomas PAGE, Defendant-Appellee.

No. 74--274.

Appellate Court of Illinois, Third District.

July 31, 1975.

Winstein, Kavensky & Wallace, Rock Island, for plaintiff-appellant.

Marshall E. Douglas, East Moline, for defendant-appellee.

BARRY, Justice:

Plaintiff filed a petition to modify a divorce decree for an increase in child support payments and to permit her to claim the minor children for income tax purposes. She also petitioned for a rule against defendant that he show cause for his failure to pay child support as previously ordered. The trial court found the defendant-husband was $492 in arrears in child support payments, and ordered it paid at the rate of $20 per month. On the husband's motion, the court also fixed his visitation hours. In all other respects plaintiff's petition was denied. Plaintiff appeals from the order refusing her an increase in child support payments.

It is not disputed that a decree of divorce may be modified from time to time as circumstances and conditions change to warrant such modification. Mayes v. Mayes, 23 Ill.App.2d 513, 163 N.E.2d 235 (1960). It is also well established that the alteration of an order respecting support payments rests in the sound judicial discretion of the trial court and unless the record shows an abuse of that discretion, such an order will generally not be disturbed on review. Hoover v. Hoover, 307 Ill.App. 590, 30 N.E.2d 940 (1940); Edwards v. Edwards, 125 Ill.App.2d 91, 259 N.E.2d 820 (1970). In denying plaintiff's request for an increase in child support, the circuit court relied on the fact that plaintiff and defendant on July 16, 1969 agreed to a reduction of the support payments from $60 to $40 per week and that an appropriate order was entered at that time so reducing the amount of support required of defendant. That order recited that plaintiff was authorized to remove the 3 minor children of the parties from Illinois to Germany and that the reduction to $40 per week for child support should prevail so long as plaintiff is remarried.

An agreement between husband and wife to change the support payments required by the divorce decree will usually be accepted as a ground for modification if the court finds that the children's welfare will not be prejudiced by the modification. Novak v. Novak, 10 Ill.App.2d 342, 134 N.E.2d 646 (1956); Chmelik v. Chmelik, 25 Ill.App.2d 192, 166 N.E.2d 101 (1960). However the controlling and paramount consideration is the welfare of the children. Therefore, if such an agreement between parties is not in the best interests of the children's welfare, or if by reason of changed circumstances it becomes contrary to their best interests, the court is not bound by that agreement. Conces v. Conces, 16 Ill.App.3d 835, 306 N.E.2d 890 (1974). We determine therefore that the trial court erred in concluding that it was bound by the parties' prior stipulation incorporated into the 1969 decree irrespective of changed circumstances. It appears that the court did not consider itself so bound when it modified the prior decree in respect to the visitation rights of the defendant. We have reviewed the Iowa case of Simpkins v. Simpkins, 256 Iowa 989, 129 N.W.2d 723 (1964), apparently relied on by the trial court, which holds that a stipulated agreement in a divorce decree terminating a husband's liability for child support upon the wife's remarriage will be enforced despite the children's welfare. We conclude that the facts in that case are distinguishable and that the rule of law is otherwise in Illinois which recognizes that the children's welfare is the paramount concern.

The plaintiff obtained a divorce from her husband on June 5, 1967. At that time there were 3 minor children of the marriage. Custody of the 3 minor children was awarded to plaintiff. On the date of the divorce the children were 7, 6 and 3 years of age. As part of the original divorce decree the defendant-husband was required to pay $75 per week as child support with the decree containing the provision that the child support payments would be reduced to $60 per week upon the sale of the marital home. The home was sold and the child support payments were accordingly reduced to $60.

The reason for the stipulated agreement in 1969 was the plaintiff's desire to remove the children from Illinois to live in Germany. She had remarried at that time and her new husband was serving there with the armed services. The defendant admits by his own testimony that the consideration for plaintiff's agreement to reduce a current arrearage and monthly child support payments then was his agreement to let her remove the children from the state, which would substantially limit his visitation rights. The plaintiff remained in Germany for only 6 months, and the circuit court has now established specific visitation rights for defendant.

The facts developed at the hearing indicate that the needs of the children have increased since the original divorce decree and its later modification in June of 1969. It is also apparent that the husband's income, and assets, have increased between 1967 and 1974. His hourly income has increased from $3.40 per hour in 1967 to $5.40 per hour in 1974. His total monthly income after taxes has increased from $544 to $864. His total monthly expenses have also increased from $428 to $806. His net monthly amount left over...