In re Marriage of Carls , 150 Ill. App. 3d 812 ( 1986 )

PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Respondent, Jeffery Thomas Ceresa, appeals from an order entered by the circuit court of La Salle County on March 27, 1986, which denied his petition to reduce the amount of his payments of child support.

The parties' marriage was dissolved on February 15, 1985. The respondent was ordered to pay $60 per week for support of his minor daughter Nicole and $45 per week as and for rehabilitative maintenance to the petitioner, Catherine. The order further provided that after a 12-month period, or sooner if the petitioner should remarry, maintenance payments were to terminate and child-support payments would be increased to $75 per week.

At the time of the dissolution, the respondent was residing in Oglesby, Illinois, and employed by Consolidated Freightways earning $13 per hour and his medical insurance was paid by the employer through the Teamsters Union. Respondent had maintained this employment for approximately seven years.

In August of 1985 respondent voluntarily terminated his employment and moved to Florida where his parents, a brother, sister-in-law, and nephew resided. Respondent resided with his parents, where he received meals and laundry service. This room, board, and laundry service was provided at no cost to respondent. Respondent does not possess an automobile but has the use of a 1977 Chrysler, which is provided by his parents.

In Florida the respondent, at the time of the hearing, had secured employment with Fort Meyers Express, and his earnings were to be $5 per hour. He had previously worked for another company for the same rate of pay.

The respondent’s petition to reduce child-support payments is predicated upon a change of circumstances, to wit, his reduced income resulting from a change of employment. As previously stated, respondent’s petition was denied, and the issue in this appeal is whether such denial by the trial court was proper or improper.

The Fifth District Appellate Court, in addressing this issue, made the following observation:

“While substantial economic reverses resulting from employment or investments are proper circumstances in considering whether support obligations should be reduced or terminated, such changes in economic circumstances must be fortuitous in nature, and not the result of deliberate action by the party seeking the reduction. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785.) Respondent’s resignation from his job in this case was entirely voluntary, occurred within two months of the judgment of dissolution, and came at a time when respondent still had over five months remaining in his term of employment. Under these circumstances, we agree with the trial court that the voluntary change in respondent’s economic conditions did not mandate abatement of his maintenance obligations.” In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 700-701, 460 N.E.2d 1, 3.

In the instant case the trial court acknowledged that the reduction of respondent’s income constituted a substantial change of circumstances, but such change was not a fortuitous one, rather one that was deliberately brought about by the respondent. The trial court further noted that respondent, prior to his move, was well aware of the prevailing wage in the State of Florida, yet he gave up a job paying $13 per hour in Illinois to accept a $5-per-hour job in Florida.

The record in this case fully supports the findings and observations of the trial court. The sole reason that respondent gave for his move was that he wanted to be with his family, which included his mother, father, brother, sister-in-law, and nephew. During cross-examination of the respondent, he was questioned as to whether he had any knowledge as to whether he would be improving his employment at the time he was leaving the Oglesby area to go to Florida. The respondent made the following reply:

“Well, it’s kind of hard to improve on what they were paying here, and with the union scale and that. I assumed it would be lower, but I wasn’t sure just how low it would be.”

The respondent further testified to the effect that prior to his move he knew that his brother found employment in Florida cutting grass for $5 an hour.

The respondent, at age 27 with seven years’ experience, was well employed, earning $13 an hour or $520 a week, with health insurance coverage paid by his employer through his union. For the sole reason that he wanted to be with his family and, as he stated, “I felt I would be happier there,” he relocated himself in another State and obtained employment with a salary vastly lower than that which he forsook.

It is well established that a spouse’s voluntary change in occupation or employment made in good faith may constitute a substantial change in circumstances sufficient to warrant modification of maintenance or child support. See In re Marriage of Kowski (1984), 123 Ill. App. 3d 811, 463 N.E.2d 840 (where modification was allowed when payor spouse retired at age 55, had valid concern over his health, and he had a lack of security in the job he quit). See also Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 368 N.E.2d 153.

Under certain circumstances relief has been given to the payor spouse who leaves his employment for the purpose of upgrading his education. (See Graham, v. Graham, (1974), 21 Ill. App. 3d 1032, 316 N.E.2d 143 (where a father returned to college to complete his degree).) In Graham, however, the court found that the father’s efforts to better his academic bargaining position and job security had commenced five years prior to his request for a reduction in payments. Further, in Graham the appellate court found that a doctor’s degree was a condition imposed upon the respondent by the University of Illinois and if the condition was not met, the respondent’s five years of academic endeavor might well be forfeited with the accompanying result of triggering the immediate payment of a $5,000 note plus interest. In the case of Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161, although an abstract opinion, it is clear that the appellate court permitted a portion of child-support payments to be held in abeyance temporarily, but the amount would accrue to. the benefit of the child upon the father’s completion or termination o'f his college education and availability of full-time employment.

In the instant case it is noted that respondent does not even make a strong argument that the change of circumstances of which he complains has resulted in any onerous hardship on him. While making child-support payments, he was also able to pay off his debts and obligations, which included a $130-per-month payment on a pop-up camper.

At the time of the hearing before the trial court, the petitioner, Catherine Carls, was 25 years of age, remarried, and employed part-time at a Pizza Hut. She was also attending school in an effort to obtain a G.E.D. certificate, since she was not a high school graduate. The minor child, Nicole, was 8 years old at the time of the hearing. The respondent makes no argument that Nicole’s welfare does not require the payments but stresses only his hardship imposed by such payments.

The respondent, a young, healthy man, unilaterally walked away from a well-paying job, thinking only of his contentment and happiness. Should respondent’s request for modification of child-support payments be granted, then it would be difficult to envision a voluntary change of circumstances which would not support a reduction in child support. Would this court abate child-support payments for the father who desires the sunny climate and decides to become a beachcomber? Of course the answer is “no”; however, the respondent in the instant case presents this court with a situation which is not too dissimilar from that illustrated in the foregoing question posed by the court.

The respondent is overlooking a very fundamental legal truism which is that a dissolution of marriage does not erase the support obligations of the parents to the child. The primary concern is the minor children and, in this case, the minor child, Nicole. The trial court correctly determined that the change of circumstances in the instant case was not a fortuitous change but a deliberate and ill-advised one. For the reasons set forth, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER, J., concurs.