{ "id": 3129637, "name": "In re MARRIAGE OF KENNETH BUSSEY, Appellant, and JEANNE BUSSEY, Appellee", "name_abbreviation": "In re Marriage of Bussey", "decision_date": "1985-10-03", "docket_number": "No. 61132", "first_page": "286", "last_page": "300", "citations": [ { "type": "official", "cite": "108 Ill. 2d 286" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "125 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633351 ], "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0904-01" ] }, { "cite": "85 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469404 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0217-01" ] }, { "cite": "62 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2970579 ], "year": 1980, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0483-01" ] }, { "cite": "110 Ill. App. 3d 470", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2996260 ], "weight": 2, "pin_cites": [ { "page": "477-78" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0470-01" ] }, { "cite": "125 Ill. App. 3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632195 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "57" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0055-01" ] }, { "cite": "52 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387886 ], "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0792-01" ] }, { "cite": "82 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225794 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "576" }, { "page": "576-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0574-01" ] }, { "cite": "110 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997022 ], "year": 1980, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0061-01" ] }, { "cite": "213 Neb. 605", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2982819 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/neb/213/0605-01" ] }, { "cite": "128 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524688 ], "weight": 3, "pin_cites": [ { "page": "731" }, { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0730-01" ] } ], "analysis": { "cardinality": 735, "char_count": 20794, "ocr_confidence": 0.731, "pagerank": { "raw": 1.639220036234988e-06, "percentile": 0.9929453416009968 }, "sha256": "88581f6f026bb99fe570bab2f620e1e7f0ac5e8eff0edfbc5912c8fd60935b6b", "simhash": "1:aeefc4c541c12c3f", "word_count": 3431 }, "last_updated": "2023-07-14T19:51:49.166830+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF KENNETH BUSSEY, Appellant, and JEANNE BUSSEY, Appellee." ], "opinions": [ { "text": "JUSTICE RYAN\ndelivered the opinion of the court:\nPetitioner, Kenneth Bussey, appealed from an order of the circuit court of Champaign County increasing his child-support payments and ordering him to pay 90% of his former wife\u2019s attorney fees. Petitioner contended that the circuit court was without jurisdiction to modify the original decree because the decree was issued in Indiana and was not properly enrolled in Illinois. Petitioner also contended that the circuit court abused its discretion by increasing the child-support payments and by awarding attorney fees. The appellate court rejected petitioner\u2019s contentions and affirmed the circuit court\u2019s decision. (128 Ill. App. 3d 730.) We granted leave to appeal pursuant to our Rule 315 (94 Ill. 2d R. 315). We now affirm the circuit court of Champaign County.\nPetitioner and his former wife, respondent Jeanne Bussey Fincher, were divorced in Marion County, Indiana, in 1976. The divorce decree awarded the custody of the couple\u2019s two children, Brent, born March 3, 1971, and Kimberly, born August 8, 1973, to the respondent. The divorce decree also ordered petitioner to provide child support.\nIn January of 1981 respondent requested petitioner to take physical custody of the children. Since the record of the subsequent change-in-custody proceeding is not before this court, we will not speculate as to the reasons for this request or the contemplated length of the requested change in physical custody.\nOn August 18, 1981, petitioner instituted the present action by filing a petition for a change in custody in the circuit court of Champaign County, Illinois. The verified petition referred to the Indiana divorce decree and requested that it be modified to give custody to petitioner. A certified copy of the decree, sworn to be true and correct, was attached to the petition.\nThe respondent opposed any change in custody. On January 18, 1983, the circuit court of Champaign County, after hearing testimony and arguments, denied petitioner\u2019s motion to modify the custody provisions of the divorce decree and reawarded permanent custody of both children to Mrs. Bussey. The court reserved ruling on child support. No appeal was taken from the denial of Dr. Bussey\u2019s petition for change in custody.\nOn March 13, 1983, respondent filed her own petition in Champaign County requesting that the original decree in the matter be modified to provide an increase in child support. Respondent\u2019s petition referred to the original decree as having been \u201cenrolled in the circuit court of Champaign County,\u201d presumably by petitioner\u2019s change-in-custody petition. Respondent\u2019s attorney also filed a petition for attorney fees.\nA hearing was held on respondent\u2019s modification-of-support petition, and written arguments were submitted. On August 19, 1983, the circuit court modified petitioner\u2019s child-support obligation under the decree to provide that he pay $900 per month per child; all medical, dental, orthodontic and other physical health care expenses of the children; one-half of all expenses incurred for counseling, testing or other sources relating to the mental or emotional health of the children up to a maximum of $1,500 per year per child; and one-half of the tuition for any private school for either or both children up to a maximum of $300 per month per child. The circuit court also ordered petitioner to pay 90% of respondent\u2019s attorney fees.\nPetitioner now contends that the circuit court of Champaign County was without subject matter jurisdiction to modify the Indiana divorce decree because the decree was not properly enrolled in Illinois. We disagree because the change-in-custody petition filed by the petitioner was sufficient to enroll the decree. As noted in the appellate court opinion, the question of subject matter jurisdiction was not raised in the trial court. 128 Ill. App. 3d 730, 731.\nSection 511 of the \u201cIllinois Marriage and Dissolution of Marriage Act\u201d provides in part:\n\u201cA judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced or modified by order of court pursuant to petition.\n(a) Any judgment entered within this State may be enforced or modified in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent * * *\n(b) In any post-judgment proceeding to enforce or modify in one judicial circuit the judgment of another judicial circuit of this State, the moving party shall commence the proceeding by filing a petition establishing the judgment and attaching a copy of the judgment as a part of the petition. The parties shall continue to be designated as in the original proceeding. Notice of the filing of the petition shall be mailed to the clerk of the court wherein the judgment was entered and last modified in the same manner as notice is mailed when registering a foreign judgment. Summons shall be served as provided by law.\n(c) In any post-judgment proceeding to enforce or modify the judgment of another state, the moving party shall commence the proceeding by filing a petition to enroll that judgment, attaching a copy thereof as a part of the petition and proceed as provided for in paragraph (b) hereof.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 511.\nThe wording of section 511 emphasized above indicates that only one petition is required in order to commence a proceeding to modify a judgment. A party is not required to file a petition to \u201cenroll\u201d the judgment and another separate petition to \u201cmodify\u201d the judgment.\nThe present action was commenced by the petitioner filing his petition for a change in custody. A certified copy of the Indiana decree, sworn to be true and correct, was attached to the petition as required by section 511(c). The petition referred to the Indiana decree and requested the court to modify the decree by giving custody of the children to the petitioner. The petitioner\u2019s \u201cpetition to change custody\u201d was sufficient to constitute a \u201cpetition to enroll\u201d the judgment as contemplated by section 511(c). In fact, in petitioner\u2019s brief in this court he refers to the petition he filed on August 18, 1981, as a petition to change custody and \u201cto register the foreign judgment.\u201d\nPetitioner contends that the decree was not properly enrolled in Illinois because notice of the filing of the petition was not sent to the clerk of the issuing court in Indiana. The failure to file notice in Indiana, however, did not affect the jurisdiction of the circuit court in Illinois. Section 511 provides that a proceeding to modify a judgment is commenced by the filing of the petition; not the filing of notice with the issuing court. (Ill. Rev. Stat. 1983, ch. 40, par. 511(c).) Section 511(b) provides that notice to the issuing court is to be given in the same manner as notice is given when registering a foreign judgment. (Ill. Rev. Stat. 1983, ch. 40, par. 511(b).) When registering a foreign judgment \u201c[t]he filing of the petition [for registration] constitutes registration of the foreign judgment.\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 12 \u2014 603.) Thus, under the registration-of-foreign-judgment provisions of the Code of Civil Procedure, the failure to give notice to the issuing court does not defeat registration of the foreign judgment. (See also Snyder v. Nelson (1983), 213 Neb. 605, 331 N.W.2d 252.) Just as the rule governing the manner of sending notice to the issuing court is the same under the Illinois Marriage and Dissolution of Marriage Act and the Code of Civil Procedure by analogy, so should be the effect of the failure to send notice.\nThe purpose of giving notice to the clerk of the issuing court is to \u201cafford reasonable protection to any person who might for any reason rely on the record of the original judgment without having received other notice of the pendency of the registration proceeding.\u201d (13 Unif. Laws Ann. 196 Commissioners\u2019 Comments (1980).) The failure to send notice to the clerk of the issuing court in Indiana did not deprive the circuit court of Champaign County, Illinois, of jurisdiction to modify the judgment.\nThe content of the petitioner\u2019s August 18, 1981, petition was sufficient to comply with the requirements of section 511(c) to enroll the Indiana decree as a decree or judgment of the circuit court of Champaign County. Following a contested hearing, the Champaign County circuit court found that it was in the best interest of the minor children that their custody be awarded to the respondent, and the court denied the petition for a change of custody. In essence, by this order the Indiana decree was recognized and affirmed, and became a judgment or decree of the Illinois court.\nThe appellate court\u2019s opinion in this case held that strict compliance with statutory requirements is no longer necessary for a court to acquire subject matter jurisdiction of a proceeding provided by statute. As noted by the appellate court in this case, the trial court\u2019s jurisdiction here is found in the Constitution (Ill. Const. 1970, art. VI, sec. 9), which provides that the circuit court shall have original jurisdiction in all \u201cjusticiable\u201d matters (with certain exceptions). Its jurisdiction does not depend upon the provisions of section 511(c). That section merely provides the procedure for making a judgment of a court in another State subject to enforcement or modification in a court in this State. Any procedural failures that occurred in the trial court could have been corrected if raised in that court. The same do not go to the question of jurisdiction. (128 Ill. App. 3d 730, 733.) The petitioner, the respondent and the children were all residents of Illinois. The parties submitted to the jurisdiction of the Illinois court and sought relief from that court of a \u201cjusticiable\u201d matter within its jurisdiction. As noted above, the original petition and the order entered on the issues raised therein were sufficient to make the Indiana decree enforceable in the Illinois courts and subject to modification pursuant to the provisions of section 511(c).\nPetitioner next contends that the circuit court erred in increasing his child-support obligation. Before addressing the merits of this argument, we must point out that petitioner\u2019s brief misconstrues the provisions of the modification order. Petitioner complains that the order requires him to pay $1,500 per year for counseling and $300 per month per child for private schools. Petitioner argues that \u201ccounseling and education should be the joint effort of the parents and should be the type of thing determined by a court if there is a need shown.\u201d Contrary to the petitioner\u2019s argument, the order does not tax the cost of the counseling and private education solely on the petitioner, nor does it require him to pay a specific dollar amount. The order provides that the petitioner is responsible for \u201cone half of all expenses incurred for counseling *** up to a maximum of $1,500 per year for each child\u201d and \u201cone half of the tuition for any private school *** up to a maximum of $300 per month for each child.\u201d In this case there is ample evidence in the record to show a need for possible counseling and private education. Furthermore, the order requires the respondent mother to share in the expense of the counseling and private education to insure that expenses are not incurred needlessly.\nWe now turn to the merits of petitioner\u2019s argument concerning the modification of child support. Petitioner contends that the modification of the decree should be overturned because the increase in support is excessive. We disagree.\nThe modification of child-support payments lies within the sound discretion of the trial court, and the trial court\u2019s modification will not be disturbed on appeal, absent an abuse of discretion. (In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 73; In re Marriage of Edelstein (1980), 82 Ill. App. 3d 574, 576; Imes v. Imes (1977), 52 Ill. App. 3d 792, 796.) In setting the amount of child-support payments the court is to consider \u201call relevant factors, including:\n(1) the financial resources of the child;\n(2) the financial resources and needs of the custodial parent;\n(3) the standard of living the child would have enjoyed had the marriage not been dissolved;\n(4) the physical and emotional condition of the child, and his educational needs; and\n(5) the financial resources and needs of the noncustodial parent or parents.\u201d Ill. Rev. Stat. 1983, ch. 40, par. 505(a).\nThe parties stipulated that a material change in circumstances had occurred since the entry of the original decree. Petitioner also admits that the amount awarded for child support is within his means. Petitioner contends, however, that the trial court abused its discretion by setting the amount of the increase without considering the income of the custodial parent or the \u201cshown needs\u201d of the children. Petitioner argues that the trial court abused its discretion by considering only \u201cthe standard of living the children would have enjoyed had the marriage not been dissolved.\u201d Ill. Rev. Stat. 1983, ch. 40, par. 505(a)(3).\nPetitioner\u2019s argument relies heavily on the fact that 'the trial court found the \u201cpresent combined ordinary expenses\u201d of the children to be $1,690 monthly, exclusive of educational, health, orthodontic or emotional-care expenses. Petitioner argues that if these expenses are \u201cassumed\u201d to be the children\u2019s needed expenses, then the amount of support needed would only be $845 per month, per child, assuming the respondent contributed nothing to their support. Thus, petitioner contends that the trial court, by increasing his support payments to $900 per month per child, ignored the income of the custodial parent and the shown needs of the children.\nThe flaw in petitioner\u2019s argument is that he equates the \u201cpresent combined ordinary expenses\u201d of the children with the \u201cneeded expenses\u201d of the children and assumes the trial court also meant to equate the two items in its order. The trial court\u2019s order does just the opposite. The trial court\u2019s order specifically states that the \u201cpresent combined ordinary expenses\u201d do not \u201creflect the benefits of the standard of living these children are entitled to enjoy.\u201d Furthermore, the trial court\u2019s order states that the present ordinary expenses do not set a limit on the petitioner\u2019s support obligation.\nTo accept petitioner\u2019s argument that a child is only entitled to receive support for his basic \u201cshown needs\u201d is to read the \u201cstandard of living the child would have enjoyed had the marriage not been dissolved\u201d consideration completely out of the statute. A child is not expected to have to live at a minimal level of comfort while the noncustodial parent is living a life of luxury, (See In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 57; In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 477-78.) The child should not suffer because the custodial parent has a limited income. We decline to accept petitioner\u2019s argument that a child is only entitled to receive support for his \u201cshown needs\u201d when the noncustodial parent is obviously \u201cenjoying\u201d a standard of living far above that of the child.\nWe also reject petitioner\u2019s argument that the trial court failed to consider the income of the custodial parent, the respondent. The trial court\u2019s order states that the petitioner has a net monthly income of $14,000 and the respondent a net monthly income of $2,342. Respondent\u2019s affidavit states that she and the children have combined living expenses of $4,840.20. We note that the trial court\u2019s list of the children\u2019s ordinary expenses does not include any overlapping benefits to the mother. For example, the amount listed for housing is only the amount attributable to the children, not the total cost of housing to the mother. Thus, the mother is paying for her own personal expenses out of her net monthly income of $2,342. In addition, we note that the respondent is required, under the modification order, to pay at least one-half of the cost of counseling, testing and other services related to the emotional or mental health of the children, and one-half of the tuition for any private school for either of the children. After reviewing these facts and the testimony and evidence introduced at the modification hearing, we cannot say that the trial court failed to consider the income of the respondent. Rather, the trial court reviewed the income and resources of both parties and concluded that the greater portion of the support of the children should be borne by the petitioner. (See In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 57; In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 477.) A review of the record shows that the trial court considered all relevant factors, including each of those specified in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 505(a)). The trial court did not abuse its discretion by increasing petitioner\u2019s support payments to $900 per month, per child.\nPetitioner next contends that the trial court erred by ordering him to pay 90% of his former wife\u2019s attorney fees, costs and expenses incurred in this matter. Judgment was entered against petitioner in the amount of $10,092.33.\nPetitioner contends that the circuit court was without authority to award attorney fees. The Illinois Marriage and Dissolution of Marriage Act provides:\n\u201cSec. 508. Attorney\u2019s Fees.\n(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney\u2019s fees and for the costs and attorney\u2019s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:\n(1) The maintenance or defense of any proceeding under this Act.\n(2) The enforcement or modification of any order or judgment under this act other than the enforcement of a provision for child support.\u201d (Ill. Rev. Stat. 1983, ch. 40, par. 508.)\nThus the circuit court had the authority to award attorney fees.\nPetitioner argues that attorney fees should not have been fixed in this matter and that even if they should have been fixed the amount was excessive. The petitioner has failed to argue, either in his brief or at oral argument, that the amount of time or the hourly rate awarded was excessive. Thus, the court\u2019s fixing of the hourly rate and amount of time expended are not at issue in this appeal.\nThe awarding of attorney fees and the proportion to be paid are within the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488; In re Marriage of Edelstein (1980), 82 Ill. App. 3d 574, 576-77.) The propriety of an award of attorney fees is dependent upon a showing by the party seeking them of an inability to pay and a demonstration of the ability of the other spouse to do so. In re Marriage of Rogers (1981), 85 Ill. 2d 217; In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 919.\nIn the present case the respondent has a net income, excluding child-support payments and social security benefits for the children, of $2,342 per month. Respondent and her children have combined monthly expenses of $4,840.28. The respondent is currently returning to college to finish work on her master\u2019s degree to improve her employment opportunities. The respondent owns no real estate and lists her net worth as $1,162.\nThe petitioner is a successful physician with an established practice and earns a net income of $14,000 per month. He owns a nine-acre farm with a 12-room house, a cabin on Lake Mattoon, a rental house, and an interest in the property where his clinic is located. Petitioner also has significantly greater investments than respondent. The petitioner listed his net worth in his first affidavit as $552,716 and on the second affidavit as $336,812. Petitioner explained that the difference in the two figures was due to his recent investment in a lumberyard which was not included on his second affidavit and the failure to include certain expenses on the first affidavit.\nFrom a review of the record, including the facts listed here, we cannot say that the trial court abused its discretion in ordering the petitioner to pay 90% of respondent\u2019s attorney fees, costs and expenses.\nFor the reasons stated herein, we affirm the judgment of the circuit court of Champaign County.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE RYAN" } ], "attorneys": [ "Arthur M. Lerner, of Greaves, Lerner & Kirchner, of Champaign, for appellant.", "Mel Sloan, of Mel Sloan, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 61132.\nIn re MARRIAGE OF KENNETH BUSSEY, Appellant, and JEANNE BUSSEY, Appellee.\nOpinion filed October 3, 1985.\nArthur M. Lerner, of Greaves, Lerner & Kirchner, of Champaign, for appellant.\nMel Sloan, of Mel Sloan, Ltd., of Chicago, for appellee." }, "file_name": "0286-01", "first_page_order": 300, "last_page_order": 314 }