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  "name": "In re MARRIAGE OF BRADLEY WOGMON DANIELS, Plaintiff-Appellee, and TAMI LYNN DANIELS, Defendant-Appellant",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re MARRIAGE OF BRADLEY WOGMON DANIELS, Plaintiff-Appellee, and TAMI LYNN DANIELS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE KARNS\ndelivered the opinion of the court:\nTami Lynn Daniels appeals from the judgment of the circuit court of Fayette County denying her petition to increase the $100 per month child-support allowance made pursuant to the December 1981 judgment of dissolution of her marriage to Bradley Wogmon Daniels. Tami claims that the trial court did not apply the proper law in determining whether modification was warranted.\nTami and the parties\u2019 only child live with Tami\u2019s parents. Tami does not pay rent or utilities but has estimated her expenses for food, clothing, and gas of $325 a month. She has diaper expense of $25 per month. Other than this expenditure it is apparent her estimate of expenses include her expenses as well as the child\u2019s. Tami secured temporary employment at $750 per month, replacing an employee on maternity leave at the county courthouse for three months, shortly after the dissolution but is now unemployed. There was no evidence of the child\u2019s expenses at the time the original support order was made.\nBradley earns $300 a month on a farm owned by his father and grandfather which he supplements with part-time work when available. At the time the original decree was entered he earned $700 a month. Bradley is furnished a home and is not required to pay rent or utilities. He expends $50 a month for food and has additional expenses for clothing and two horses which he owns as a hobby. He spent approximately $800 to attend a horse breeding school in Texas. He purchased a Honda motorcycle in May 1981, prior to the entry of the dissolution decree.\nUnder section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)), child support may be modified only upon a showing of a substantial change in circumstances. The burden of proof is on the party seeking modification. (Gaines v. Gaines (1969), 106 Ill. App. 2d 9, 245 N.E.2d 574.) The trial court\u2019s order stated that no showing of a substantial change in circumstances had been made as to Bradley Daniels\u2019 financial situation to warrant the requested increase in support. Tami argues the order makes it clear that the trial court\u2019s decision was based on the reasoning of Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 214 N.E.2d 139, which she argues is no longer good law.\nIn Kelleher the court held that an increase in monthly support payments is warranted when the evidence establishes an increased need by the children and a corresponding ability of the noncustodial parent to pay. (67 Ill. App. 2d 410, 414, 214 N.E.2d 139, 141.) The court reversed the lower court\u2019s decision to deny modification, citing evidence of special educational needs for one child and a substantial increase in the father\u2019s income. In Swanson v. Swanson (1977), 51 Ill. App. 3d 999, 367 N.E.2d 512, the same court stated that child support should be determined by \u201c \u2018accommodating the needs of the children with the available means of the parties.\u2019 \u201d (51 Ill. App. 3d 999, 1000, 367 N.E.2d 512, 513.) Both decisions were reviewed in In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279. There the court stated:\n\u201cIt is still incumbent upon the court to consider both the needs of the children and the ability of the former spouses to pay when considering a petition to increase child support. But, instead of marching in step to some precise equation of percentage change, the court considers the children\u2019s needs as ranging from the bare necessities to the practical, to the useful, to the luxurious. Similarly, the court considers whether the means of each spouse has changed absolutely, has changed relative to the other, and has changed relative to the children\u2019s needs. The court must then accommodate, or adapt, or harmonize all these considerations to determine whether an increase in support is justified. Child support payments must necessarily reflect a balance of the intensity of the child\u2019s need with the ability of the parents to provide for that need. When a material change has occurred creating a substantial imbalance between the child\u2019s needs and the parent\u2019s support capabilities, then the Marriage and Dissolution of Marriage Act as well as the Swanson decision requires modification.\u201d 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279, 1282-83.\nIt was noted that Swanson was a more flexible standard. The court\u2019s discontent with Kelleher, requiring both increased need and increased ability to pay, was reiterated in In re Support of Luthy (1981), 95 Ill. App. 3d 987, 420 N.E.2d 764.\nWe believe that section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)) and the case law make clear that the paramount consideration of the court is to determine whether a substantial and material change has intervened since the original support allowance was made. While the needs of the child and the financial status of the noncustodial parent are important factors in making the decision, the court must also consider the financial resources of the child, the financial status and needs of the custodial parent, the standard of living the child was accustomed to prior to dissolution, and the physical and emotional needs and educational needs of the child. (Ill. Rev. Stat. 1981, ch. 40, par. 505; In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 160, 408 N.E.2d 1021, 1023.) Finally, a trial court\u2019s decision to deny modification of child-support payments will not be disturbed on review unless it involves a clear abuse of discretion. Winter v. Winter (1978), 69 Ill. App. 3d 359, 364, 387 N.E.2d 695, 699.\nHere, the trial court\u2019s order stated that section 510 of the Act permits modification only when there is a showing of substantial change in circumstances. The court then stated that respondent\u2019s financial circumstances had not changed to warrant an increase in support.\nWe believe that the court may have erred in applying the incorrect standard. Admittedly, there was no evidence that the financial status of either party has changed significantly. Bradley\u2019s income is apparently lower than at the time of dissolution, or at least has become unpredictable due to his reliance on part-time work for income. It is immaterial that Tami lost her temporary job since she was unemployed when the original support allowance was made. There was no showing of educational needs or a concern for the child\u2019s health. In fact, the record is devoid of evidence of the child\u2019s expenses at the time the support allowance was determined. The current expenses Tami testified to were, by her own admission, merely estimates.\nWithout expressing an opinion on an amount we would consider proper, we reverse and remand for a reconsideration of child support applying the proper standard herein stated.\nReversed and remanded.\nHARRISON, P.J., and JONES, J., concur.",
        "type": "majority",
        "author": "JUSTICE KARNS"
      }
    ],
    "attorneys": [
      "Burger, Fombell, Dvorak, Baxter & Zachry, P.C., of Decatur, for appellant.",
      "Meyer & Meyer, of Greenville, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re MARRIAGE OF BRADLEY WOGMON DANIELS, Plaintiff-Appellee, and TAMI LYNN DANIELS, Defendant-Appellant.\nFifth District\nNo. 82\u2014546\nOpinion filed April 27, 1983.\nBurger, Fombell, Dvorak, Baxter & Zachry, P.C., of Decatur, for appellant.\nMeyer & Meyer, of Greenville, for appellee."
  },
  "file_name": "0173-01",
  "first_page_order": 195,
  "last_page_order": 198
}