*1 distinguishing One fact between effective assistance of counsel. Meacham appeal, filed a notice of and the case at bar is that counsel Meacham, bar, whereas, filed such deputy defendant and clerk the case completely is but indication counsel foregoing notices. The another stated, this cause is remanded abandoned the defendant. For the reasons allow the County directions to to the Circuit Court of Madison plea pursuant guilty a motion to withdraw to file that different counsel be Supreme 604(d). Court Rule is further ordered appointed represent defendаnt on the motion.
Reversed; remanded with directions. KASSERMAN, JJ.,
KUNCE and concur. HUCKABY, HUCKABY, Plaintiff-Appellant, RONALD Defendant- LINDA Appellee.
Fifth No. 78-556 District Rehearing September Opinion KARNS, J., dissenting part. Belleville, Ysursa, appellant. Sprague Sprague, Sprague, R.
John Belleville, Keehner, Keehner, Ltd., appellee. D. D. of Jim Jim opinion of the delivered the Mr. PRESIDING JUSTICE JONES cоurt: *2 an order of determining we are to consider the effect of parties, absolving the the father of minor entered the liability support upon
children from for their the failure of mother privileges. afford the father court ordered visitation and, 29, 1965, having parties married on November after were сhildren, 16, 1973. decree for divorce two divorced on March children, granted the father custody of the awarded the mother in the him to child rights of visitation and ordered $15per per child week. amount the unpaid went because support subsequently of child
Installments by both filing petitions injured unable to work. After the father was thereon, the court entered entry interim orders parties, and the 11, 1974, which September of the upon order right to remove the children from Illinois gave the mother the during the California. The father was to have two weeks of visitation Day January Christmas the cost of summer months and from equally. The to be shаred transporting the children for visitation disability the provided that because of the agreement and order further the father accumulate until support would be allowed to father the child event, support payments Upon that began disability checks. to receive $30 employment the father resumed week until were to resume $10 $30 for the plus were to be whereupon the settled, the was the father’s Missouri lawsuit arrearage. Finally, when in arrearage paid was full. in order of the contemplated work out as apparently
Matters did not good lack of 11, 1974, of the parties complaining September each in a resulted Negotiations by the other. performance faith and failure of upon the by the court was entered an order which stipulation written for summer four weeks provided for February stipulation on days written at least upon the father children with visitation this order paragraph оf attorney. The second her notice to the mother or stated: the said plaintiff fails to allow
“2. In the event the any visitation year 1975 for the summer visitation amended, previously in the Decree as provided provided provide part of the defendant on the Order of for in said Decree shall cеase and determine further Court.” contemplated in order with
Again, transpire did not events However, each parties blaming other. we would that a observe fair in father made a reading April record discloses that 1975 the days proper request July in few visitation Just Japan begin before the visitation was sеnt the children mother for an later parents. extended visit with She rationalized her but this father could have had after children returned proved possible to be not of the father. For this because of conflicts disregard in of the mother she was later found to be violation court’s order note. we will No hаd following further summer of mother stating she in vain get tried to contact the father in order to him to receive visitation pay support, he was saying unable to find the mother in California order exercise paid. No child 23, 1978,
On February a petition the mother for citation for contempt, arrearages attorney fees. Evidence established an amount of $5,550.Following hearing trial in which it court entered found that the mother failed to allow visitation the father summer of therefore had violated the court *3 28, 1975; pursuant February of the order there was no court; due and the in contempt father was not of a reasonable support amount of child be *32.50 per per would *200 child and a attorney fee for the mother. findings The made further respecting future rights visitation and found it in the also to be best children, interests of the rights, and in order to effect the father’s visitation that adopt February the court 2 paragraph of the order of Following findings by it ordered that the father was these the child, specified thereafter to child that support *32.50 week granted visitation be and that the mother was awarded *200 father attorney Paragraphs fees. 6 provided: 5 and of this order if
“5. That said is not made for reason other than respоndent’s fare, supply respondent’s failure to half of the air one children, accept refusal to the minor or illness of the minor children which prevents travelling their attested a letter from a by is medical physician, licensed ordered support above shall cease subsequent complеted further order of Court or apply That the terms to all paragraph and conditions of 5 shall further visitation.”
198 plaintiff objecting to by both
Post-trial motions were filed a for accrued denying that her portion of to the amount of future support payments objecting both both motions and support payments. post-trial trial court denied as to plaintiff’s the trial court parties appeal. We reverse the order of affirm as appeal. to defendant’s following v. Slavis beginning a note the from Slavis point As we 417: (1973), 12 Ill. 299 N.E.2d App. 3d abundant “An authorities of this State reveals examination authority proposition that a violation and consistent will excuse terms of a divorce decree the mother not support alimony and child comply the father’s failure to consistently have also held terms. These cases [Citations.] right, has support are a vested and a court past-due installments of authority modify (See Gregory Gregory also them. 139.)” Ill. App. 2d however, not, it strictly point This here since rule from the Slavis case is voluntarily a withholds is concerned instance where father with that Of the same support rights he of visitation. payments when is and the cases many are cited Slavis. We cite Slavis nature cases require State a of this upon еxpressive which relies he payments by father continuation rights have of visitation. deprived been of court ordered suspension the fact that the The difference this case arises from authority grounded upon of an making that if expressly provided order of court. The were not accorded the defendant summer visitation until further order. payments were cease solely of an result court order arose consequence not adversarial a father of his litigation process. Can such an order serve to relieve in fact obligation his even when the visitation is children In cannot. denied? line with authorities we hold begins obligation Illinois the during minority (Leland of the child. the child is born and continues 598, 192 831; Kelley Kelley, Brower 104, 147 granting a decree N.E. This affected wife, of it custody nor can he relieved awarding divorce *4 by agreement with v. Brower. her. Leland 534, 536, 463, 468,92 340 Ill. N.E.2d
In Nelson v. Nelson agreement between against public policy void as court held consideration, the husband whereby, husband wife stated stating: support, from all claims for child the court released obligation “The support his minor is not by divorce, granting affected the decree nor the decree granting custody the care and of his child to his wife or some other (Kelley Kelley, person. suitable 317 Ill. duty The of a parent support his minor child arises out of a natural (Dwyer Dwyer, relationship. Ill. 630.) And the claim for of children is which any one transcends contractual Keller, (Keller v. obligation. App. 198.)” 284 Ill. The fact agreement adopted by absolution was the court incorporated in its order legal viability does not serve to enhance its or add to its import. has often been stated that a consent judgment or judicial order is not a determination nor does it purport court, to represent but merely records Bergman Rhodes parties. 137, 165 334 Ill. Paine v. Doughty 598; N.E. Nelson v. 212; 96 N.E. Nelson.
itSo is in this case that imposes duty of this State upon a father to his child that bargained away. cannot be plaintiff between the suspend support defendant payments for failure of the wife to afford visitation in the summer of incorporated in an order of does not and cannot either transсend or suspend legally imposed obligation minor children. relies upon Cooper v. Cooper (1978), 59 Ill. App. 3d plaintiff Rev. Stat. par. statute, ch. 509. The part
of the Illinois Marriage.and Dissolution Marriage (Ill. Act Rev. Stat. et seq., effective October ch. par. 101 1977), provides:
“If a party fails comply provisiоn a judgment, injunction, party payments to make permit maintenance or to sus- visitation is not pended; but grant he move the appropriate order.”
The statute expressly case, forbids a party, husband suspending support or maintenance party, the other case, wife fails comply with a рrovision of an judgment, order or such as an order for visitation. With this provision has quarrel, claiming Rather, he is exempt requirements. from its relies on the concluding party clause of the statute which states that a wronged by a violation of an party may the other move the court grant appropriate order. This he claims he has done and the order” was that contained in the order of repeated appealed, terminated when visitation as ordered refused. *5 say a expressly not that for be that the statute does is to noted shall, or even maintenance or
violation of in the of speaks general terminology The statute may, suspended. be cited, find, can have not been nor we entry of an order.” We may be an order in the appropriate Illinois case which discusses what expression of intention presented context here. We find no legislature change strong рublic policy in the abolish statute to parents A governing responsibility of for of their children. in interpretation legislature adopting intent pre-existing 510 of the be that it is a section Act would codification here, law, present law. an appropriate Under that and the circumstances of support payments. order would be termination More appropriate, public policy, punishment and with the would be consonant or, contempt for a wilful for visitation court for violation perhaps, regard a reconsideration of best interests of the children wilfully parent custody. disregard to whiсh shall have their Parents who may have their fitness to be appropriate properly court orders custodial parents questioned. too, think, Cooper Cooper. this is the That case
We that thrust of public imposes which strong policy contains a rather statement of the policy that will liability support upon for a father and indicates that a any charge deprivation that arise because of transcend petition “Although allegations the father’s to terminate child [in plaintiff accusation support] tantamount to the that used are in her and pawns game children of bitterness recrimination will not [citation], mere violation of visitation terms excuse the children This true father’s his [citations]. privileges should not be awarded or parent, or reward to either punishment withheld in restricted the best interest of privileges may be (Cooper v. Cooper child. [Citations.]” 925, 931.) effect, possibly in сould Cooper say, in went on to there The court in justify would set of circumstances which presented to court some extremely view of the liability support, for terminating father’s its petition in the dismissal reversed charges contained father’s serious import Of to the obvious hearing determination. and remаnded indepen- mother was was the fact Cooper court’s decision hand. at notably absent the case dently wealthy, condition plaintiff between of this case Under the circumstances support liability for absolving from and defendant visitation, portions of the those deprived right children 28,1975, 27,1978, incorрorated orders and June agreement, against legal are and of no effect. void Accordingly, plaintiff’s appeal is reversed remanded case entry plaintiff support. for accrued child As to defendant’s which fixed June $32.50 child, the amount of child we thenceforth regard find to be merit. without The disсretion of trial court supported by the record. That order is affirmed. part,
Reversed in in part, affirmed and remanded. MORAN,
G. J., concurs. *6 KARNS, Mr. dissenting in part: JUSTICE 28,1975, The order of entered perhaps (but while Cooper Cooper (1975), v. erroneous 59 App. see 3d 457, 925, 375 cited), N.E.2d and cases subject therein to modification by the trial court or parties this court was on binding effective and modified, if expunged reversed. Even order contrary State, voidable, the public policy of this best erroneous and void, surely as trial jurisdiction court had parties subject (Tucker v. Tucker (1975), matter. 274.) 29 Ill. 3d 330 If N.E.2d this is not (Ill. order” under the new act Rev. Stat. ch. par. 509), power was one the court had the to mаke.
The fact
that the order was entered with the consent of the
court,
makes it
less the
authority
no
order of the
and while there is
judgments
consent
finality
and orders
do not have
to be accorded the
adjudicata (Freasman
res
effect of
Smith
(1942),
39 N.E.2d
367 (1942)), it
is the law the case until
appeal
modified
reversed on
protected against
parties.
should be
collateral attack as between the
(Filosa
v. Pecora
fact,
18 Ill. App.
In
it is
o.
often
taken from consent decree. Nelson
appeal
stated that no
can be
Nelson
Ill. App.
340
So long was in violated, in support if acсrued the terms of the order as the trial were found, court finding approved against this court has as not effect, weight manifest requires evidence. decision the father pay support. retroactive Leland Brower hardly 28 Ill. 2d court, authority for the reversing decision reached here there the triаl gave relieving effect to Ohio temporarily decree any obligation showing pay periodic absence of a that the Nelson Nelson mother was unable to the children. duty parties absolving father of involved It did not involve a a decree of divorce. pay support provided mоdifying judgment or decree. majority I the trial court entered agree with the the order of June taken, should reversed the order from which visitation, contingent being made
to future child should be father’s future June affirmed. ILLINOIS, Plaintiff-Appellee, v. OF STATE OF
THE PEOPLE THE KIFER, Defendant-Appellant. JAMES No. Fifth District 78-395 Opinion
KARNS, J., concurring. Vernon, Office, Mt. Plesko, Appellate M. Defender’s of State
Jeff appellant.