Vollenhover v. Vollenhover

MR. PRESIDING JUSTICE SCHWARTZ delivered the opinion of the court. Defendant appeals from an order finding him in arrears with respect to payments for the support of his minor child. By a decree of divorce entered June 18, 1949, in the circuit court of Cook county, defendant was ordered to pay $50 per week to his wife, $25 thereof being for her support, and $25 for the support of their six-year-old child. Under the terms of the decree the weekly payments for the child were to be increased as follows: to $35 when defendant earns more than $200 per week, to $45 when defendant earns more than $250 per week, and to $55 when defendant earns more than $300 per week. If defendant earned more than $300 per week, the child’s allowance was to be subject to the further order of the court. If his earnings dropped below $5,600 per year, the total weekly payments were to be reduced to $40 per week, to be divided equally between plaintiff and the child. Determination of defendant’s earnings was to be made on the basis of Form W-2, a report of employee’s earnings made by the employer to the internal revenue department, or any other form substituted therefor. Pursuant to the decree, defendant made an adjustment for 1950 by paying an additional sum of $520, thus bringing the payments for that year to $35 per week. In 1951, according to the undisputed findings in the order appealed from, defendant’s net earnings were $17,092.20, and in 1952 he earned $11,080.75. In 1951 he paid $35 weekly for the child’s support, and in 1952 he paid $25 weekly. The weekly salary he received from his employer varied from $120 to $140, and the additional amount was made up by what defendant calls earned bonus on a “thirteen period basis — four even weeks.” If the total payments made to defendant by way of bonus and weekly salary were distributed equally over 52 weeks he would have earned more than $300 per week in 1951, more than $200 per week in 1952. Therefore, in 1951 he should have provided $55 (instead of $35) per week for the care of his child and in 1952, $35 (instead of $25) per week. On this basis, the chancellor ordered him to pay an arrearage of $1,040 for 1951 and $520 for 1952. Defendant contends this was error because the provision of the decree with respect to the increase in payments is too indefinite and uncertain. He bases it on the very technical argument that the earned bonus was paid “on a thirteen period basis — four even weeks,” was not paid weekly, and therefore, he should not be required to pay any increase at all. All judgments and decrees are reasonably construed, but those which seek to provide support for a child receive the special care and consideration of courts. 49 C. J. S., sec. 436; Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826; Matter of Williams, 208 N. Y. 32, 101 N. E. 853; Condy v. Condy, 328 Ill. App. 8. Defendant himself had no difficulty in understanding his duty under the decree. As before stated, in 1950 he paid $520 as an adjustment, based upon a bonus he received that year; in 1951 he paid an additional $10, or $35 weekly, although, as the court found, he should have paid $55 weekly. He understood the nature of the decree and observed its terms until he conceived the idea that he could avoid the additional payments. If there was any doubt about applying the provisions of the decree, his recognition that bonuses were to be taken into account and distributed on a weekly basis to determine tbe extent of his obligation removed tbat donbt. Defendant next contends tbat tbe issue was determined in a proceeding in tbe circuit court of Multnomah county, Oregon, and tbat tbe decree entered in tbat case is conclusive of tbis litigation. It appears tbat defendant moved to Oregon and when be refused to pay tbe additional sums provided for in tbe decree, plaintiff sued him in tbat State, seeking to enforce tbe provisions of tbe Illinois decree. After a bearing tbe Oregon court entered an order in which it found tbat tbe provisions for tbe adjustment of weekly payments were invalid and “could not be established and made part of an Oregon decree.” Tbe Oregon court limited tbe support money for tbe child to tbe $25 minimum provided in tbe Illinois decree. It was following tbis tbat plaintiff filed her petition in tbe circuit court of Cook county. Tbe real question presented is whether tbe Oregon decree is binding under tbe due faith and credit clause. Tbis is a constitutional- question which, under tbe Constitution of Illinois, can be reviewed only by tbe Supreme Court. When defendant appealed to tbe Appellate Court instead of seeking a direct appeal to tbe Supreme Court, be waived tbe point. People v. Parker, 328 Ill. App. 46; 396 Ill. 583; 333 U. S. 571. Tbat principle is too well established for further citations. Aside from tbis, it must be noted tbat tbe Oregon court did not enforce tbe provisions of tbe Illinois decree but, on tbe contrary, refused to do so. Tbe question of substance, therefore, would be whether tbe Elinois court has tbe power to enforce provisions of its own decree. Of tbis there can scarcely be any doubt. Decree affirmed. ROBSON and MoCORMICK, JJ., concur.