Waldron v. Waldron

• Citation: 301 N.E.2d 167,13 Ill.App.3d 964
• Decision Date: 28 August 1973
• Docket Number: No. 72--210,72--210
• Parties: Robert C. WALDRON, Jr., Plaintiff-Counterdefendant, Respondent Appellant, v. Elizabeth Ann WALDRON, Defendant-Counterplaintiff, Petitioner Appellee.
• Court: United States Appellate Court of Illinois

Page 167

301 N.E.2d 167

13 Ill.App.3d 964

Robert C. WALDRON, Jr., Plaintiff-Counterdefendant, Respondent Appellant, v. Elizabeth Ann WALDRON, Defendant-Counterplaintiff,

Petitioner Appellee.

No. 72--210.

Appellate Court of Illinois, Fifth District.

Aug. 28, 1973.

Donald R. Mitchell, Paul G. Schoen, and W. Charles Grace, Carbondale, for appellant.

Charles C. Hines, Carbondale, Twomey & Hines, Carbondale, of counsel, for appellee.

EBERSPACHER, Presiding Justice.

This is an appeal by the plaintiff-husband in a divorce action from a decree and order of the Circuit Court of Jackson County, entered subsequent to the original divorce action, under the court's continuing jurisdiction. The original decree of divorce entered by the Circuit Court on July 23, 1968, provided for custody in the defendant-wife, and; '3. That the plaintiff shall pay to the defendant the sum of $180 per month for each of the minor children of the parties as child support, this being a total sum of $360 per month.' On the date the divorce decree was entered, the legal age of majority for males in Illinois was twenty-one years of age.

At the time the divorce decree was entered, Mark Calvin Waldron, the eldest son, was fourteen years of age and enrolled in Carbondale Community High School District No. 165. While attending high school he worked at a local hamburger establishment from June, 1970, until December, 1970. After graduating from high school, Mark was employed by the Carbondale Highway Department as a highway engineer's assistant from June, 1971, until December, 1971. Shortly after graduating from high school, Mark enrolled as a part time student in John A. Logan College, a junior college in Carterville, Illinois.

Effective August 24, 1971, the Illinois Legislature reduced the age of majority for males from twenty one years of age to eighteen years of age. Shortly thereafter, plaintiff discontinued making monthly support checks for Mark. After the child support was discontinued, defendant, as petitioner, filed a petition requesting the entry of an order to compel the plaintiff to continue paying support for Mark for educational purposes or, in the alternative, for an order increasing the amount of support payable to Gary Wayne Waldron, the other

The hearing on the petition was held on

The hearing on the petition as held on January 4, 1972, and a decree was entered by the court on January 31, 1972, which ordered the plaintiff to continue support payments for Mark and provided that support payments for each child of the parties were to continue until the child reached twenty one years of age. The court did not apply the statute changing the age of majority and concluded that the intention of the parties was that support should continue until the age of twenty one. The court also held that the support was proper for educational purposes, under Ill.Rev.Stat., ch. 40, § 19.

Appellant entered a post trial motion for a retrial or rehearing, and defendant moved for attorney fees and for support payments during the pendency of the action. These motions were heard simultaneously on June 1, 1972. On June 20, 1972, the court ordered that payment of attorney fees and past due payments of child support be paid within fifteen days of appeal and that $180 monthly support be paid for Mark as and for temporary support pending appeal or further order of the court. From the court's judgments and orders the plaintiff appeals.

Several issues are raised. The defendant-appellee maintains that the appellant did not perfect or protect his right of appeal due to his failure to file a petition in this matter. In is her position that the appellant has failed to make application for modification of the decree as to child support by a sufficient petition, as required by the last paragraph of Section 19, Chap. 40, Illinois Revised Statutes, 1971. Appellee's position would not be without support if taken at face value. (See Edwards v. Edwards, (1970), 125 Ill.App.2d 91, 259 N.E.2d 820; Trimble v. Trimble, (1958), 16 Ill.App.2d 408, 148 N.E.2d 612; and Stark v. Stark, (1971), 131 Ill.App.2d 995, 269 N.E.2d 107.) However, appellant is not requesting a modification of the divorce decree. Rather, his termination of support payments is in accord with his interpretation of the divorce decree. Therefore, we cannot hold that his appeal is barred by a failure to file a petition to modify the decree.

Appellant contends that the court below erred in its determination that the word 'minor' as found in the original decree of divorce meant other than that status of an individual before attainment of majority. Appellant contends that the court erred in its interpretation in two respects: first, by basing its order upon a mistaken belief concerning the record, and secondly, by refusing to consider the applicability of Chapter 3, Section 131, Illinois Revised Statutes, 1971, which lowered the age of majority for males from twenty one years of age to eighteen.

It is appellant's position that the word 'minor' means the status of an individual before the attainment of majority. He cites the case of Wilson v. Wilson, (1970), 122 Ill.App.2d 142, 257 N.E.2d 810, for the proposition that the meaning of 'minority' in divorce actions is determined by the appriate statutory provision. The appropriate statutory provision which was in effect at the issuance of the divorce decree in question provided that males became of age when they reached twenty one years of age. (Chapter 3, Section 131, Illinois Revised Statutes, 1967.) Whether the subsequent revision of that provision has any effect on the situation here depends on several factors.

This is a question of first impression in our jurisdiction, but the results of our research indicate that most jurisdictions which have considered it held that a statutory change of the age of majority does not affect the pre-existing rights of a person, and child support payments are a matter of vested right. (Needler v. Needler, (1971), 131 Ill.App.2d 11, 268 N.E.2d 517; Gregory v. Gregory, (1964), 52 Ill.App.2d 262, 202 N.E.2d 139; Hallet v. Hallet (1956), 10 Ill.App.2d 513, 135 N.E.2d 224.) Although most jurisdictions have dealt with questions involving the raising of the age of majority, our sister state, Missouri, is one of the few which has had occasion to consider the questions posed by lowering the age. In the case of Dougal v. Fryer, (1830), 3 Mo. 40, 22 Am.Dec. 458, in which the age of the children at the time the statutory change became effective did not appear with certainty, a subsequent change in the law lowering the age of majority from twenty five to twenty one was held not to change or affect the limitation imposed by the grant of an estate to three minors, with the condition that they could not sell it until the youngest had reached the age of twenty five, since the limitation, being legal at the time it was imposed, would be good for the time prescribed. In Reisse v. Clarenbach, (1875), 62 Mo. 310, in which it appeared that anyone under the age of twenty one years was protected from the operation of the statute of limitations, but that the legislature changed the age of majority of females from twenty one to eighteen, it was held that the act was not retrospective, so as to operate adversely on those females who were eighteen at the time of its passage, they being protected from the operation of the statute of limitations until they were twenty one.

Only one jurisdiction, Kentucky, has considered the exact question that faces us; and it held that the father was not relieved of his duty of support. In Wilcox v. Wilcox, (Ky.1966), 406 S.W.2d 152, it was held that a father was not entitled to relief from a decree directing him to pay child support until his child reached the age of majority or became self-supporting although the legislature subsequently reduced the age of majority from twenty one to eighteen. This position was affirmed in Collins v. Collins, (Ky.1967), 418 S.W.2d 739 and Kirchner v. Kirchner, (Ky.1971) 465 S.W.2d 299.

Although all of these cases involved decrees resulting from negotiated settlements...