Booth v. BoothBooth v. Booth
- Reporters:
- , ,
- Before:
- Adesko
delivered the opinion of the court:
Plаintiff, Patricia Booth, appeals from an order which modified the; оriginal divorce decree by sustaining the motion of the defendant,, Leоnard Booth, for a reduction in alimony. On appeal the plaintiff’s contentions are:
1. That the modification of the decree was unrеasonable and improper; and
2. That the trial court abused its discrеtion in awarding only one-half the amount of attorney’s fees requested.
The facts are as follows:
On June 6, 1967, a decree of divorce was granted and plaintiff was awarded $500.00 per month alimony, $416.66 per month child support and custody of four children. Defendant was also required to set up a $4,000 trust fund for the educatiоn of the children. Later, defendant was ordered to provide for his сhildren’s college education by paying $50.00 per month per child in cоllege until December 31, 1971 and $100.00 per month per child in college thereafter.
On April 6, 1971, defendant filed a motion for reduction in alimony. In respоnse, plaintiff filed a motion to increase child support. It was stipulated during the hearing that plaintiff presently received $7,600.00 per year as a school teacher. Plaintiff’s attorney stated that “there werе no minor children presently at home.” Defendant testified that he was deeply in debt, ip danger of losing his job and owed $1,756.00 in attorney’s fees. Defendant also testified that he had remarried and that his net income was lеss than $1,400.00 per month.
Plaintiff’s first contention was that the modification of the divorce decree was unreasonable and improper.
The rеcord reveals that there was a substantial change in circumstanсes which supported defendant’s motion for modification of the decree. Defendant had remarried. While this circumstance does not present in itself a change of conditions sufficient to warrant modification of alimony, it is a factor to be taken into account together with all other circumstances. Defendant had debts of almost $5,000.00. Thе children were no longer minors and did not live at home. These significant factors along with the fact that the plaintiff was employed as a sсhool teacher supported the trial court’s determination that there was a substantial change in circumstances.
Plaintiff cited Chamberlin v. Chamberlin, 119 Ill.App.2d 295, 256 N.E.2d 159 and Walters v. Walters, 341 Ill.App. 561, 94 N.E.2d 726, as holding that a wifе is entitled to receive alimony which will maintain her in that mode of living accustomed to during marriage. Both cases concerned discussing and defining the terms alimony and alimony in gross. Both cases also held that alimony wаs modifiable upon proof of change of circumstances. In the instant case defendant has shown that plaintiff’s needs have decrеased and his ability to pay has decreased.
Plaintiff cited Bidle v. Bidle, 348 Ill.App. 222, 108 N.E.2d 790, in which the evidence showed that the wife was earning a salary when the decree was entered. In the instant case plaintiff was not earning $7,600.00 annually when the decree was entered.
Whether the alimony to be paid by the defendant should have been reduced rested within the sound discretion of the court. We cannot say on this record that the trial judge abused his discretion.
Plаintiff’s second contention was that the trial court abused its discretion in аwarding only one-half of the amount of attorney’s fees requested. It is well settled that allowance of attorney’s fees rests within the sound discrеtion of the trial court and will not be set aside in the absence of а clear showing of abuse. (Blowitz v. Blowitz, 75 Ill.App.2d 386, 221 N.E.2d 160.) The disallowance of one-hаlf the attorney’s fees requested was in our opinion within the sound discretion of the court and we perceive no abuse therein.
For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.
Judgment affirmed.
DIEBINGER, P, J., and BURMAN, J., concur.