Venegas v. Venegas

• Decision Date: 11 March 1977
• Docket Number: No. 61851,61851
• Citation: 5 Ill.Dec. 335,46 Ill.App.3d 998,361 N.E.2d 658
• Parties: , 5 Ill.Dec. 335 Isabel VENEGAS, Plaintiff-Appellant, v. Henry VENEGAS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 658

361 N.E.2d 658

46 Ill.App.3d 998, 5 Ill.Dec. 335

Isabel VENEGAS, Plaintiff-Appellant, v. Henry VENEGAS, Defendant-Appellee.

No. 61851.

Appellate Court of Illinois, First District, Fifth Division.

March 11, 1977.

[5 Ill.Dec. 336] Sherwin & Sherwin, Chicago, for plaintiff-appellant; Theodore R. Sherwin, Chicago, of counsel

Bruce L. Levin, Chicago, for defendant-appellee.

SULLIVAN, Presiding Justice.

Plaintiff appeals from an order modifying child support payments. On appeal, she contends that the court erred (1) in ruling that the statutory amendment effective August 24, 1971, lowering the majority of males to age 18, was retroactive to a decree entered in 1962; (2) in ruling that it was proper for defendant to unilaterally reduce child support payments as each child reached age 18; and (3) in ordering 'that any additional child support arrearages to that found by the court to be supported by evidence to be furnished to defendant's attorneys.'

The 1962 divorce decree granted custody of the couple's five minor children to plaintiff and required defendant to pay $65 weekly as child support. On September 6, 1966, without altering the monetary amount of defendant's obligation, the decree was modified to include a sixth child.

On May 10, 1973, plaintiff filed a petition which sought a modification of the decree by the increase of weekly support payments and by the inclusion of certain extraordinary medical expenditures. On the same date, defendant filed an answer asking that his increased expenses and plaintiff's betterment in financial position be considered by the court in dismissing her petition and in rendering him any further relief which it deemed equitable. Thereafter, plaintiff apparently did not pursue the matter and no action was taken on the petition. Meanwhile, although defendant had continued to pay $65 per week after his eldest daughter had reached 18 years of age, he unilaterally reduced his payments to $52 per week when his son Daniel attained the age of 18 on June 14, 1973, and further diminished them to $39 on July 20, 1974, the date of his daughter Gloria's eighteenth birthday.

At the time the divorce decree was rendered, Illinois law provided that children would be considered minors until the males reached the age of 21 and females the age of 18. (Ill.Rev.Stat.1961, ch. 3, par. 131.) Effective August 24, 1971, however, this provision was amended to lower the age at which males attain majority to 18 years. (Ill.Rev.Stat.1975, ch. 3, par. 131.)

On September 17, 1974, plaintiff filed a supplemental petition seeking a determination (1) that an arrearage had accumulated as a result of the unilateral reduction of support payments by defendant; and (2) that Gloria, although 18 years of age, was entitled to support because she had not yet graduated from high school. A hearing was held on November 18, 1974, at which the parties were the only witnesses, and each testified to the changes which had occurred in their financial circumstances.

The trial court found that six children had been born of the marriage; that two daughters and one son had attained their majority; that three children remained minors; and that there had been a substantial change in the circumstances of the parties. Defendant was ordered to pay $50 per week as and for support of three minor children. From that order, plaintiff has brought this appeal. Because of the view we take of this case, only her first two contentions require discussion.

OPINION

Plaintiff first argues that the statutory age of majority in effect at the time the divorce decree was entered must be employed to define the extent of defendant's obligation to support his minor children. Defendant has acknowledged that a number of cases emanating from Waldron v. Waldron (1973), 13 Ill.App.3d 964, 301 N.E.2d 167, have held this to be the rule in Illinois. (Dunsky v. Dunsky (1976), 40 Ill.App.3d 845, 353 N.E.2d 371; Bobus v. Bobus (1974), 24 Ill.App.3d 428, 321 N.E.2d 169 (abstract); Strum v. Strum (1974), 22 Ill.App.3d 147, 317 N.E.2d 59.) Nonetheless, he contends that the better view is to apply the statutory amendment retroactively by treating it in much the same manner as an alteration in the financial condition of the parties (Shoaf v. Shoaf (1972), 282 N.C. 287, 192 S.E.2d 299), and he would have us overrule Waldron. We must decline to do so, as we find a fundamental difference between ascertaining the identity of the person(s) for whom one is obligated to furnish support and, assuming such an obligation, determining whether one is currently financially able to meet this burden. The latter of necessity requires further evaluations, which may be accomplished by a petition for modification of the decree. (Storm v. Storm (1973), 9 Ill.App.3d 1071, 1074, 293 N.E.2d 633, 636.) The status of minors entitled to support, however, are determinable and fixed at the time the decree is rendered, and their rights are defined by the terms of the decree. (Strum.) Should the description of those entitled to support be ambiguous, the statutes in effect at the time of the rendition...