{
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  "name": "CHRISTOPHER G. MITCHELL, Plaintiff-Appellant, v. NANCY L. MITCHELL, Defendant-Appellee",
  "name_abbreviation": "Mitchell v. Mitchell",
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  "casebody": {
    "judges": [],
    "parties": [
      "CHRISTOPHER G. MITCHELL, Plaintiff-Appellant, v. NANCY L. MITCHELL, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff, Christopher G. Mitchell, filed suit for divorce against defendant, Nancy L. Mitchell. A judgment for divorce was granted on August 6, 1974. Plaintiff received custody of their minor daughter. On. December 15,1975, defendant filed a petition for custody and support of the child. In relevant part, plaintiff\u2019s response prayed for attorney\u2019s fees for the defense of the custody action and for support payments from defendant. By agreement, defendant withdrew her petition for custody and the trial court denied plaintiff\u2019s request for support and attorney\u2019s fees.\nIn case 76-1126 plaintiff appeals from the trial court\u2019s order denying him an allowance of attorney\u2019s fees and support payments. In case 77-334 defendant appeals from the trial court\u2019s order denying her an allowance of attorney\u2019s fees to defend plaintiff\u2019s appeal in case 76-1126. By order of this court, the two cases were consolidated for argument and decision.\nThe parties stipulated that for 1975 plaintiff\u2019s gross income was *14,891 and defendant\u2019s was *7,835. On direct examination, plaintiff testified that he spent *400 per month for the support of his daughter. Included in that amount were approximately *100 for food, *20 for clothing, *130 for day care and *110 for her share of the rent. He also stated that he owed his attorney about *400 for services rendered.\nDefendant was called as an adverse witness. She stated that her current husband pays for their food, housing and utilities. She pays for her own automobile and clothes. Her savings total about *600 in two savings accounts. She further testified that she has the child on the weekends and pays all of the child\u2019s expenses while her daughter is with her.\nPlaintiff argues that defendant should make some contribution to the support of the child. He contends that society recognizes the equality of men and women and consequently defendant should help support the child. The support of a child is a joint and several obligation of both husband and wife. (Plant v. Plant (1974), 20 Ill. App. 3d 5, 312 N.E.2d 847.) However, it does not necessarily follow that the noncustodial parent must make support payments to the custodial parent for a child\u2019s support in addition to the amounts which the non-custodial parent expends for a child\u2019s support while the child is being cared for by the noncustodial parent. The amount of child support should be determined \u201cby accommodating insofar as possible the needs of the parties and children with the available means of the parties, due regard being given to their stations in life.\u201d (Everett v. Everett (1962), 25 Ill. 2d 342, 344, 185 N.E.2d 201.) The record indicates that the trial court heard evidence on the needs of the child and of the parties and on the parties\u2019 means and concluded that the defendant should not make an added contribution to the support of their daughter. Our review of the record indicates that the trial court\u2019s order was not an abuse of its discretion and should not be reversed. Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 343 N.E.2d 640; Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 300 N.E.2d 603, aff'd (1974), 57 Ill. 2d 360, 312 N.E.2d 236.\nPlaintiff contends that the trial court erred in denying his request for attorney\u2019s fees for his defense of defendant\u2019s custody petition. To justify the aUowance of attorney\u2019s fees in matrimonial cases, the party seeking this relief must show financial inability to pay and the ability of the other spouse to do so. (Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 343 N.E.2d 640.) The only evidence presented by plaintiff concerning attorney\u2019s fees was that he owed his counsel about $400. There was no evidence that he was unable to pay the fees. The aUowance of attorney\u2019s fees is within the discretion of the trial court and its ruling w\u00fcl not be disturbed on appeal absent a clear showing of an abuse of its discretion. (Booth v. Booth (1972), 6 Ill. App. 3d 62, 284 N.E.2d 506.) The .record does not reflect such a showing. The trial court\u2019s order denying plaintiffs request for attorney\u2019s fees w\u00fcl not be disturbed.\nAlthough the parties have argued the merits of defendant\u2019s appeal from the trial court\u2019s order denying her an aUowance of attorney\u2019s fees to defend against plaintiffs appeal, we have chosen to exercise our authority to decide defendant\u2019s appeal on grounds other than those presented by the parties. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831; In re Application of County Treasurer (1975), 25 Ill. App. 3d 717, 323 N.E.2d 803.\nPlaintiff\u2019s notice of appeal was filed on July 6, 1976. Defendant\u2019s petition for attorney\u2019s fees was filed on November 12,1976, and denied on November 23, 1976. The filing of a notice of appeal vests the appeUate court with jurisdiction. (Ill. Rev. Stat. 1975, ch. 110A, par. 301; City of Chicago v. Myers (1967), 37 Ill. 2d 470, 227 N.E.2d 760.) The reviewing court does not have jurisdiction to review trial court proceedings after a notice of appeal is filed. (Myers; Brehm v. Piotrowski (1951), 409 Ill. 87, 98 N.E.2d 725.) In this case, because defendant\u2019s petition for attorney\u2019s fees with reference to plaintiff\u2019s appeal was filed and denied after the filing of plaintiffs notice of appeal, her appeal must be dismissed. See Fultz v. Haugan (1971), 49 Ill. 2d 131, 305 N.E.2d 873.\nThe order in case 76-1126 is affirmed. The appeal in case 77-334 is dismissed.\nNo. 76-1126 affirmed.\nNo. 77-334 dismissed.\nGOLDBERG, P. J., and McGLOON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE O\u2019CONNOR"
      }
    ],
    "attorneys": [
      "Moltz & Wexler, of Chicago (Leon C. Wexler, of counsel), for appellant.",
      ". Gomberg and Schaps, of Chicago (Nathan M. Gomberg and Steven P. Gomberg, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "CHRISTOPHER G. MITCHELL, Plaintiff-Appellant, v. NANCY L. MITCHELL, Defendant-Appellee.\nFirst District (1st Division)\nNos. 76-1126, 77-334 cons.\nOpinion filed October 24, 1977.\nMoltz & Wexler, of Chicago (Leon C. Wexler, of counsel), for appellant.\n. Gomberg and Schaps, of Chicago (Nathan M. Gomberg and Steven P. Gomberg, of counsel), for appellee."
  },
  "file_name": "0018-01",
  "first_page_order": 40,
  "last_page_order": 42
}