{ "id": 5580550, "name": "JACQUELINE A. DUNN, Plaintiff-Appellee, v. MELVIN E. DUNN, Defendant-Appellant", "name_abbreviation": "Dunn v. Dunn", "decision_date": "1979-05-01", "docket_number": "No. 77-1964", "first_page": "649", "last_page": "653", "citations": [ { "type": "official", "cite": "71 Ill. App. 3d 649" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "135 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 2d 450", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5156483 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/10/0450-01" ] }, { "cite": "252 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "113 Ill. App. 2d 374", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589953 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0374-01" ] }, { "cite": "363 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3373588 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0859-01" ] }, { "cite": "388 N.E.2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5576913 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0378-01" ] }, { "cite": "359 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896973 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0365-01" ] }, { "cite": "343 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630325 ], "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0181-01" ] }, { "cite": "373 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 958", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422323 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0958-01" ] }, { "cite": "97 S. Ct. 238", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "50 L. Ed. 2d 167", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "429 U.S. 886", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5858, 6407, 7655, 6921, 7786, 6862, 7377, 7958, 6873, 6714, 5951 ], "opinion_index": 0, "case_paths": [ "/us/429/0886-07", "/us/429/0886-06", "/us/429/0886-05", "/us/429/0886-11", "/us/429/0886-03", "/us/429/0886-08", "/us/429/0886-10", "/us/429/0886-04", "/us/429/0886-02", "/us/429/0886-01", "/us/429/0886-09" ] }, { "cite": "340 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307097 ], "year": 1976, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0276-01" ] }, { "cite": "368 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 186", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3393888 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0186-01" ] } ], "analysis": { "cardinality": 456, "char_count": 9252, "ocr_confidence": 0.874, "pagerank": { "raw": 1.276555980219157e-07, "percentile": 0.6159758734968718 }, "sha256": "aef95c24d4090014f1f2d0b0fe084ae00010384348d519e12e6133707038856d", "simhash": "1:dfc64dc5d96f9754", "word_count": 1546 }, "last_updated": "2023-07-14T15:52:26.554099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JACQUELINE A. DUNN, Plaintiff-Appellee, v. MELVIN E. DUNN, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nOn March 22, 1977, pursuant to a petition filed by plaintiff, the trial court modified a divorce decree entered on August 16,1972, by ordering an increase of *25 per month in alimony to plaintiff. On April 15, 1977, defendant filed a notice of appeal from the March 22, 1977, order. Subsequently, on August 9, 1977, the court entered an order modifying the order of March 22, 1977. Defendant appeals from both the March 22 and August 9, 1977, orders.\nThe issues for consideration on review are: (1) whether the trial court\u2019s grant of an increase in alimony was against the manifest weight of the evidence; and (2) whether the trial court had authority to modify its March 22, 1977, order after a notice of appeal from such order had been filed.\nWe reverse.\nOn August 16, 1972, a judgment of divorce was entered terminating the marriage of plaintiff Jacqueline A. Dunn and defendant Melvin E. Dunn. Each party was awarded custody of one of the parties\u2019 two minor children. The decree provided that defendant pay *300 per month as combined alimony and child support.\nThe decree of divorce was modified by agreement of both parties on November 26, 1975, w'hereby defendant assumed custody of both minor children and agreed to pay plaintiff alimony of *400 per month for 12 months and *300 per month thereafter.\nOn December 27, 1976, plaintiff filed a petition for an increase in alimony, alleging that a material change in circumstances of the parties had occurred. Plaintiff contended that her income had decreased substantially due to the expiration of her social security disability payments, and that defendant\u2019s income had increased substantially.\nAt a hearing held on March 15,1977, the court found that the cost of living provided no basis for modification. The court also stated:\n\u201cNeither does the ground regarding the income of Respondent indicate a basis for modification or material change, a showing that he might have had a greater ability to pay a greater sum.\n# # \u00bb\nThe only material change that the court could take into consideration at this time would be the termination of the social security payments.\u201d\nThe court noted that plaintiff\u2019s income from employment had increased $150 per month since the November 1975 order. The court then stated:\n\u201cAccording to the court\u2019s rule that there is no material change in circumstances, that the ability to pay of the Respondent has remained unchanged, and that the demands, even viewing the expenses of both, increased according to both parties. Considering the fact that social security has diminished, the Court will modify it to a limited expense of twenty-five dollars per month.\u201d\nIn its order of March 22, 1977, the court found \u201cthat plaintiff [had] failed to show a material change in circumstances since the entry of the order\u201d of November 26, 1975, but ordered defendant to pay $325 per month as alimony. On April 15, 1977, defendant filed a notice of appeal from the March 22 order.\nOn August 9,1977, while the appeal of the March 22,1977, order was still pending, the court changed the March 22 order by specifically adding the following: (1) \u201cthat the only material change it could consider would be the termination of plaintiff s social security benefits,\u201d and (2) that there was no substantial change in defendant\u2019s income since the November 26, 1975, order. Defendant appeals from the orders of March 22, 1977, and August 9, 1977.\nDefendant contends that the trial court\u2019s order increasing the alimony payments to plaintiff was against the manifest weight of the evidence because plaintiff failed to prove a material change in the circumstances of the parties. Defendant further contends that the court erred in increasing the alimony payments because plaintiff failed to prove that defendant had an increased ability to pay.\nThe modification of alimony provisions in a divorce decree rests in the sound discretion of the trial court, and unless the record indicates an abuse of such discretion, a reviewing court will not reverse. (Baker v. Baker (1st Dist. 1977), 53 Ill. App. 3d 186, 368 N.E.2d 379.) But to justify modification of a divorce decree there must be a material and substantial change in the circumstances of the parties. Lane v. Lane (1st Dist. 1975), 35 Ill. App. 3d 276, 279, 340 N.E.2d 705, cert. denied (1976), 429 U.S. 886, 50 L. Ed. 2d 167, 97 S. Ct. 238.\nIn the case at bar, even though plaintiff\u2019s income from employment had increased, the court expressed concern that plaintiff\u2019s social security benefits had been terminated. However, the court was unclear as to whether such termination was a \u201cmaterial\u201d change, stating as follows:\n\u201cThere\u2019s Social Security, and she\u2019s still some money short. I can see there\u2019s been change. We are in a gray area of material change # # # \u201d\nAlthough the report of proceedings does not indicate expressly whether the court found a material change in circumstances, the court\u2019s order of March 22, 1977, clearly states that \u201cplaintiff has failed to show a material change in circumstances since entry of the order entered on or about November 26, 1975.\u201d The court\u2019s modification of the decree therefore was error since there was no finding of a material change in the circumstances of the parties.\nAssuming arguendo that the court found a material change in plaintiff\u2019s circumstances only, a modification of the decree still could not stand since a careful examination of the record reveals no evidence that defendant was able to pay additional alimony.\nTo warrant an increase in child support or alimony, the law requires evidence of an increase in the needs of the children and the custodial parent plus a showing of the other parent\u2019s ability to pay. Sullivan v. Sullivan (3d Dist. 1978), 57 Ill. App. 3d 958, 373 N.E.2d 829.\nIn Nordstrom v. Nordstrom (1st Dist. 1976), 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, the trial court denied plaintiff\u2019s petition for an increase in child support. The appellate court affirmed, finding that although there was evidence of an increase in the needs of the children, plaintiff had failed to show that defendant had the ability to pay. See also Robin v. Robin (1st Dist. 1977), 45 Ill. App. 3d 365, 359 N.E.2d 809.\nSimilar facts were present in Gauger v. Gauger (1st Dist. 1979), 70 Ill. App. 3d 378, 388 N.E.2d 123, where the court found respondent had failed to show an increase in the needs of the children. The court also found there was an insufficient showing of defendant\u2019s ability to pay an increased amount, concluding that respondent failed to meet her burden of proving a material change in the circumstances of the parties.\nWhile the above cases, involved modifications of child support payments, we believe the holdings apply also to modification of alimony payments. Section 18 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 19) permits a court to modify alimony or child support payments as shall appear reasonable and proper. The Act has been construed to allow modification only upon a showing of substantial change in the circumstances of the parties. These well established rules are applicable to modification of both alimony and child support awards. (Baker v. Baker, at 190, citing Addington v. Addington (1st Dist. 1977), 48 Ill. App. 3d 859, 363 N.E.2d 151.) Thus it was error for the court to increase alimony payments without a showing of defendant\u2019s ability to pay the additional sum.\nDefendant further contends that the filing of a notice of appeal on April 15, 1977, divested the court of jurisdiction to modify the March 22, 1977, order. The amended order of August 9,1977, directly modified the court\u2019s order of March 22, 1977, which found no material change in the circumstances of the parties. The August 9 order added the following language:\n\u201cThe court having further found that the only material change it could consider would be the termination of plaintiff\u2019s Social Security payments of *207 per month.\u201d\nOnce an appeal has been duly filed in the appellate court by filing notice of appeal (Ill. Rev. Stat. 1975, ch. 110A, par. 301), the trial court is . restrained from entering any order which would change or modify the judgment or its scope, and from entering any order which would have the effect of interfering with the review of the judgment. Shapiro v. Shapiro (1st Dist. 1969), 113 Ill. App. 2d 374, 252 N.E.2d 93, citing Holmes v. Kammerman (1st Dist. 1956), 10 Ill. App. 2d 450, 135 N.E.2d 162.\nIn amending its prior order, the trial court in the case at bar apparently sought to bolster its decision to increase alimony by stating that there had been in fact a change of circumstances. Such action would interfere with our review of the manifest weight question presented by the court\u2019s initial order of March 22, 1977.\nFor the foregoing reasons we reverse the trial court\u2019s order modifying the divorce decree.\nReversed.\nDOWNING and HARTMAN, JJ., concur.\nOn August 9, 1977, defendant filed an amended notice of appeal to include both orders.", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "Stuart H. Wolf, of Buffalo Grove, for appellant.", "Gary Laff, of Chicago, for appellee." ], "corrections": "", "head_matter": "JACQUELINE A. DUNN, Plaintiff-Appellee, v. MELVIN E. DUNN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 77-1964\nOpinion filed May 1, 1979.\nStuart H. Wolf, of Buffalo Grove, for appellant.\nGary Laff, of Chicago, for appellee." }, "file_name": "0649-01", "first_page_order": 671, "last_page_order": 675 }