{
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  "name": "Jacqueline Thomas, Plaintiff-Appellant, v. Daniel Thomas, Defendant-Appellee",
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    "judges": [],
    "parties": [
      "Jacqueline Thomas, Plaintiff-Appellant, v. Daniel Thomas, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE BURKE\ndelivered the op'nion of the court:\nPlaintiff appeals from an order entered by the circuit court of Cook County following proceedings enrolling an Indiana divorce decree in Illinois. The complaint was amended to include a request for increase in child support and reimbursement of medical expenses. The court entered an order changing custody and support arrangements of the parties\u2019 children. The court terminated child-support payments for the son of the parties, Mark, who had reached his majority, terminated support payments for the elder daughter, Wendy, who has since attained her majority, and placed her in the temporary custody of her father, the defendant. (The temporary-custody provision would become inoperative when Wendy reached her majority.) The court set support payments for the third child, Lynn, at $300 per month.\nThe defendant appeals from an order refusing to assess costs and fees against plaintiff pursuant to section 41 of the Civil Practice Act. The appeals have been consolidated. The court found that the defendant\u2019s petition was well-founded, but did not allow the defendant to recover costs and fees, citing plaintiff\u2019s inability to pay.\nDefendant contests the trial court\u2019s subject-matter jurisdiction. The essence of defendant\u2019s contention is that an Indiana divorce decree should not have been enrolled in Illinois while the defendant was residing in Indiana in full compliance with the terms of the. decree. Although the defendant withdrew his objection to the registration of the Indiana decree in order to proceed with the disposition of the case, he raises the issue on appeal.\nThe issues presented to us for review are: (1) whether the trial court had' shbject-matter jurisdiction over the plaintiff\u2019s position; (2) whether the trial court should have granted fees and costs to the defendant pursuant to section 41 of the Civil Practice Act; (3) whether it was an abuse of judicial discretion to deny plaintiff\u2019s request for a continuance during the course of the bench trial on July 17, 1973; and (4) whether it was an abuse of judicial discretion to change the Indiana divorce decree from $600 to $300 per month for the support of the only child remaining in plaintiffs custody. Any question as to the court order transferring the custody of Wendy to her father is moot, as she has reached her majority.\nThe purpose of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1973, ch. 77, par. 88 et seq.) is to enforce a foreign judgment against an errant party ignoring the provisions of tire judgment. The defendant argues that since he was a known Indiana resident, complying fully with the terms of the Indiana decree, there was no need to \u201cpursue\u201d him with allegedly frivolous claims. Based on language found in Reeves v. Reeves, 131 Ill.App.2d 831, 267 N.E.2d 529, the defendant argues that if there is no showing of a need to enforce a foreign divorce decree then an Illinois court lacks subject-matter jurisdiction over a petition to register that decree.\nThe defendant\u2019s reliance on the Reeves decision is misplaced. Reeves involved a situation where the plaintiff attempted to register a Canal Zone divorce decree, issued by a United States District Court, for the express purpose of modifying the visitation rights stipulated by the decree. In other words, the case did not simply involve a problem of enforcement, as the defendant argues. The primary purpose of the plaintiff\u2019s action in Reeves was to modify the decree without offering a proof of change in circumstances which related to the best interests of the child involved. This court in Reeves found that the Illinois policy of extending full faith and credit to foreign judgments would be subverted by the plaintiffs petition to register the Canal Zone decree for the express purpose of modifying it without proper cause. In upholding the trial court\u2019s refusal to register the Canal Zone decree, this court in Reeves reiterated our established policy of recognizing and enforcing divorce decrees of sister states. Reeves v. Reeves, 131 Ill.App.2d 831, 267 N.E.2d 529; Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.\nThe plaintiff here did not seek to register the Indiana divorce, decree for the purpose of modifying its terms. As a resident of Illinois, she brought her action to enforce, not to modify, the provisions of the decree which called for the payment of medical bills allegedly ignored by the defendant. Her action was clearly within the purview of the Uniform Enforcement of Foreign Judgments Act. The Indiana divorce decree was entitled to full faith and credit. Therefore, the plaintiffs action presented a proper justiciable matter over which the circuit court of Cook County, Illinois has jurisdiction. Light v. Light, 12 Ill.2d 502, 147 N.E.2d 34; Ill. Const., art VI, sec. 9.\nThe second part of defendant\u2019s appeal relates to the recovery of fees and costs under section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 41.) Section 41 is a remedial statute, one of its purposes being to prevent harassment resulting from untrue or unfounded allegations made in bad faith. (Ready v. Ready, 33 Ill.App.2d 145, 178 N.E.2d 650.) When the record discloses bad faith on the part of the pleader, the trial court may exercise discretion and award fees and costs to the other party. Grandys v. Spring Soft Water Conditioning Co., 101 Ill.App.2d 225, 242 N.E.2d 454.\nDefendant argues that since the trial court found plaintiffs complaints for medical expenses frivolous and without reasonable foundation, fees and costs should have been awarded to him as a matter of law. Defendant\u2019s argument would construe section 41 to compel a trial court to award costs and fees upon the finding of bad faith. Such is not, however, the intent of the statute. Allowance of attorney\u2019s fees and costs is entirely discretionary. Section 41 does not mandate an award even if the trial court finds that the plaintiffs claims are frivolous and brought in bad faith. (See the Joint Committee Comments, S.H.A., ch. 110, par. 41 (1968).) Although the trial court found plaintiffs claims unreasonable, it denied a section 41 award to the defendant because the plaintiff had little or no assets from which to pay. It was entirely proper for the trial judge to exercise his discretion. We see no reason, arid defendant gives us none, to believe that the trial judge\u2019s refusal to grant defendant section 41 costs and fees was an improper exercise of judicial discretion.\nPlaintiffs first claim on her appeal is that the trial judge erred in denying her request for a continuance. Plaintiff\u2019s previous attorney withdrew from the case after serving notice of his intention to withdraw on July 5, 1973. The trial judge required plaintiff to appear- in open court for a hearing on her attorney\u2019s motion to withdraw. Plaintiff did appear on July 12 and was advised by the trial judge that she should obtain counsel for the trial scheduled for July 17. The record indicates that the trial judge also advised the plaintiff to file for a continuance if she felt that more time would be needed to obtain counsel for trial. The plaintiff indicated that she would have counsel for the trial, and no continuance was requested. On the day of the trial, July 17, the defendant and his attorney, the parties\u2019 children, Mark\u2019s attorney, and two of defendant's witnesses, in response to subpoerias, appeared in court. It was during the course of the trial\u2019s proceedings, for the first trine, th\u00e1t plaintiff requested a continuance because she lacked counsel.\nSection 59 of the Civil Practice Act provides the rule for extension of time and continuances:\n\u201cOn good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.\nThe circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.\u201d Ill. Rev. Stat. 1973, ch. 110, par. 59.\nThe applicable rules prescribed by the supreme court address the important consideration of when the motion for continuance is offered. Supreme Court Rule 231(f) provides:\n\u201cNo motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.\u201d Ill. Rev. Stat. 1973, ch. 110A, par. 231(f).\nThe facts in this case clearly illustrate the reason for the reluctance to grant a continuance after a trial has commenced. The record indicates that tire plaintiff had been given an opportumty to file for a continuance 5 days prior to the trial date. The fact that plaintiff lacked counsel during the trial could have been avoided by her own diligence in either securing a lawyer for trial, or requesting a continuance prior to the day of trial. The record demonstrates that the trial judge extended every courtesy permitted by our laws to the plaintiff. Once the parties and witnesses assembled for the trial proceedings, granting plaintiff\u2019s request would have caused great inconvenience to all of those gathered. Plaintiff could not give adequate reason why she lacked counsel, and we see no valid reason to disturb the trial judge\u2019s ruling. As stated in Schneider v. Seibutis, 3 Ill.App.3d 323, 326, 279 N.E.2d 37, good cause must be offered before a motion to continue during trial will be granted:\n\u201cBecause of the potential inconvenience to the parties, the witnesses and the court, especially grave reasons for granting a delay must be given once a case has reached the trial stage.\u201d\nIt is well established that a motion for continuance, except where it is based on a statutory cause, is addressed to the sound discretion of the trial judge. The exercise of such discretion will not be interfered with by the appellate court unless there has been a manifest abuse of discretion or a palpable injustice. (Condon v. Brockway, 157 Ill. 90, 41 N.E. 634.) The record reveals no such result here. The order entered on the trial date terminated child support for a child who had reached his majority and was represented by his own attorney, transferred custody of the parties\u2019 elder daughter, who has since reached her majority, and adjusted the child-support payments to provide an adequate payment to plaintiff for the remaining child in her custody. The issue of reimbursement for medical expenses was not adjudicated .until a second hearing when plaintiff appeared in court represented by counsel. Although absence of counsel is one factor to take into consideration in deciding on a motion to continue, it does not entitle a party to a continuance as a matter of right. (Adcock v. Adcock, 339 Ill.App. 543, 91 N.E.2d 99.) Plaintiff had ample opportunity to extend the time for trial in order to obtain counsel. We find that the denial of plaintiffs motion for a continuance, particularly where no prejudice resulted to the plaintiff, was a proper exercise of the trial judge\u2019s discretion.\nThe final question before us is whether it was an abuse of judicial discretion to change the Indiana divorce decree from $600 to $300 per month for the support of plaintiffs youngest daughter.\nThe record indicates that the trial judge approached the question of child support from all of the pleadings and evidence presented. The terms of the 1965 Indiana divorce decree were before the trial court. The plaintiff received a divorce settlement of $47,000 in addition to property and household furnishings. The plaintiff also received a grant of $50,000, payable monthly in 125 equal installments of $400, which the defendant is still paying. The defendant is obligated to provide all medical and dental expenses for the child remaining in plaintiffs custody. The court was also aware that the defendant is providing for the care and support of the elder daughter, who has reached her majority. Additionally, the defendant has agreed to provide college education expenses for the oldest son, Mark, who is emancipated.\nThe issue on a petition for modification of child-support payments is whether there has been a material change of circumstances since the entry of the original decree. (Lewis v. Lewis, 120 Ill.App.2d 263, 256 N.E.2d 660.) The findings and order of the trial court will not be reversed unless the level of child support is contrary to the manifest weight of the evidence. Kelleher v. Kelleher, 67 Ill.App.2d 410, 214 N.E. 2d 139.\nThe record indicates that the modification of the decree was not arbitrary or capricious. The reduction of child-support payments was justified by the substantial change in circumstances. Two of plaintiffs children had reached majority and ceased to be under plaintiffs care and custody. Only the youngest daughter, Lynn, remains in the custody of the plaintiff. Defendant still has an obligation to provide for Lynn\u2019s medical and dental care. In light of these and the foregoing facts presented, we find that a reduction of child-support payments from $600 to $300 per month for the one child was not against the manifest weight of the evidence. Finding no reversible error, the judgment is affirmed.\nJudgment affirmed.\nEGAN, P. J., and GOLDBERG, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE BURKE"
      }
    ],
    "attorneys": [
      "Marcia H. Zeidman and Samuel E. Hirsch, both of Chicago, for appellant.",
      "Rosenberg & Kosin and Stuart Litwin, both of Chicago (Ellis B. Rosenzweig, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "Jacqueline Thomas, Plaintiff-Appellant, v. Daniel Thomas, Defendant-Appellee.\n(Nos. 59653, 59761 cons.;\nFirst District (1st Division)\nNovember 4, 1974.\nMarcia H. Zeidman and Samuel E. Hirsch, both of Chicago, for appellant.\nRosenberg & Kosin and Stuart Litwin, both of Chicago (Ellis B. Rosenzweig, of counsel), for appellee."
  },
  "file_name": "0936-01",
  "first_page_order": 960,
  "last_page_order": 965
}