{ "id": 3119846, "name": "In re SUPPORT OF CHRISTIAN ALLEN LUTHY et al., Minors. - (GAIL A. LUTHY, a/k/a Gail Luthy Clark, Plaintiff-Appellant, v. CHARLES F. LUTHY, Defendant-Appellee.)", "name_abbreviation": "Luthy v. Luthy", "decision_date": "1981-04-30", "docket_number": "No. 80-220", "first_page": "987", "last_page": "992", "citations": [ { "type": "official", "cite": "95 Ill. App. 3d 987" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "382 N.E.2d 1279", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1282-83" } ], "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328247 ], "pin_cites": [ { "page": "948-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0945-01" ] }, { "cite": "367 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385418 ], "pin_cites": [ { "page": "1000" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0999-01" ] }, { "cite": "324 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2700927 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0978-01" ] }, { "cite": "214 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "67 Ill. App. 2d 410", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5290037 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-2d/67/0410-01" ] }, { "cite": "363 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "48 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3373588 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/48/0859-01" ] }, { "cite": "373 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "57 Ill. App. 3d 958", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422323 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill-app-3d/57/0958-01" ] }, { "cite": "382 N.E.2d 1279", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "65 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328247 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/65/0945-01" ] }, { "cite": "367 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "51 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385418 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/51/0999-01" ] }, { "cite": "214 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "141" } ], "opinion_index": 1 }, { "cite": "67 Ill. App. 2d 410", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5290037 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "414" } ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/67/0410-01" ] } ], "analysis": { "cardinality": 577, "char_count": 11363, "ocr_confidence": 0.905, "pagerank": { "raw": 7.552284461341054e-08, "percentile": 0.44822922108586255 }, "sha256": "696663da3dd9bcc2f6bc86ea9fcaae7ef0a17b3bf2c0aa4af6dd11a38e9bb86f", "simhash": "1:2fe819f762c1109e", "word_count": 1884 }, "last_updated": "2023-07-14T16:14:33.414377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re SUPPORT OF CHRISTIAN ALLEN LUTHY et al., Minors. \u2014 (GAIL A. LUTHY, a/k/a Gail Luthy Clark, Plaintiff-Appellant, v. CHARLES F. LUTHY, Defendant-Appellee.)" ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE ALLOY\ndelivered the opinion of the court:\nGail Luthy Clark appeals from a denial of her petition to increase child support to two of her children, Christian Allen and Kristin Gail. Mrs. Clark was divorced from Charles F. Luthy in January of 1967. Under the divorce decree, Mr. Luthy was ordered to pay $100 per month support for each of the couple\u2019s four children. Since that time, the eldest child has come of age and the next eldest has gone to live with Mr. Luthy. The petition for increased child support therefore affects only the two younger children. The petition for increased child support was filed by Mrs. Clark in 1979, and the case was tried in January of 1980. The court denied Mrs. Clark\u2019s petition, but modified the support decree to conform with the actual amount of support then being paid by Mr. Luthy, $150 per month for each of the two younger children. This amount included $50 per month that Mr. Luthy had voluntarily added. Thus, the court has effectively raised Mr. Luthy\u2019s support obligation by $50 per month per child. Mrs. Clark appeals this judgment and the denial of her attorney\u2019s fees.\n\u201c[T]he provision of any judgment respecting \u201d 0 \u201d support may be modified * * * only upon a showing of a substantial change in circumstances.\u201d Ill. Rev. Stat. 1979, ch. 40, par. 510(a).\nThe trial judge found that, although the needs of the children have increased as a result of their growing older and the general increase in the overall cost of living, the children, \u201ctheir futures protected by trusts, their mother well-employed and financially solvent, cannot be described as in need.\u201d The court additionally found that there has been no increase, substantial or insubstantial, in Mr. Luthy\u2019s ability to pay support.\nThe trial judge, in his letter advising the parties of his decision and reasons therefor, observed:\n\u201cAn increase in child support is justified only when the needs of the children and the earnings of the supporting parent have increased. (Kelleher v. Kelleher (3d Dist. 1966), 67 Ill. App. 2d 410, 214 N.E.2d 139; Heady v. Simmons (5th Dist. 1975), 25 Ill. App. 3d 978, 324 N.E.2d 100.)\n0 6\u00bb\nWith regard to the Respondent\u2019s ability to pay, neither the testimony nor the exhibits demonstrate an increase in Luthy\u2019s income, let alone a substantial increase. # 6 *\u201d\nThe court\u2019s reliance on the standard enunciated in Kelleher, that increased support is warranted only when both the needs of the children and the ability to pay of the noncustodial parent have increased, is erroneous.\n\u201cThe Kelleher authority commanded unwavering adherence for more than ten years.\u201d However, \u201c[t]he 1977 term of court witnessed a shift in focus from the rigid language of Kelleher to the more flexible standard of Swanson v. Swanson (1977), 51 Ill. App. 3d 999, 1000, 367 N.E.2d 512, 513, [where we stated], \u2018[C]hild support is to be determined \u201cby accommodating the needs of the children with the available means of the parties\u201d.\u2019 \u00bb\u00bb\u00bb.\u00bb\u00ab\u00ab 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. Ill. Rev. Stat. 1977, ch. 40, par. 510(a).\u201d In re Sharp (1978), 65 Ill. App. 3d 945, 948-49, 382 N.E.2d 1279, 1282-83.\nThe needs of the children should be considered with the available means of both parents to contribute to or satisfy those needs. The accommodation or balance between the needs of the children and means of providing support is not dependent alone upon the existence or nonexistence of an increase in the income of the supporting parties. The inequity of the Kelleher standard is illustrated by a simple example. Suppose the needs of the children have increased substantially, but neither parent has enjoyed an increased ability to pay. Recause the noncustodial parent\u2019s ability to pay has not substantially increased, modification would be denied under the Kelleher standard. Unless the children\u2019s increased needs were met by a third source, such as a trust, the entire increase in the support burden would shift to the custodial parent, even though that parent\u2019s ability to pay has not increased. It is, therefore, clear that equity demands a balancing of the relative abilities of the parents to provide for the needs of the children.\nThe trial court erred in holding that modification is allowable only upon a showing that the noncustodial parent\u2019s ability to pay has increased. We, therefore, reverse the judgment of the trial court, and remand for reconsideration of this cause in a manner consistent with the legal standard stated herein. On remandment, the court should consider all relevant factors in making its determination, including the income and other assets of both the parents, and the income and assets of the children. The petitioner also argues that the trial court erred in denying her attorney\u2019s fees of $500. The court has discretionary power to order either spouse to pay reasonable costs and attorney\u2019s fees incurred by the other spouse. In exercising its judgment on this matter, the court is to consider the financial resources of the parties. (Ill. Rev. Stat. 1979, ch. 40, par. 508(a).) We believe the issue of attorney\u2019s fees cannot be resolved appropriately on this appeal. Although the court\u2019s finding, that the petitioner is \u201cwell employed and financially solvent,\u201d is supportive of its decision to deny her attorney\u2019s fees, it is also possible that the trial court\u2019s decision on attorney\u2019s fees was based in part on his holding that the petitioner was not entitled to succeed on her petition. We, therefore, believe that the question of attorney\u2019s fees should remain open for further argument upon remandment.\nFor the reasons stated, the judgment of the Circuit Court of Fulton County is reversed and the cause is remanded for reconsideration.\nReversed and remanded.\nSTOUDER, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE ALLOY" }, { "text": "Mr. JUSTICE BARRY,\nspecially concurring:\nAlthough I concur with the result attained by the majority in this cause, I do not believe the facts of this case justify the complete abandonment of the standard enunciated by this court 15 years ago in Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 214 N.E.2d 139.\nIn Kelleher, this court stated that \u201c[a]n increase in monthly support payments is warranted when the evidence establishes that the needs of the children have increased, and the means of the father have also increased so as to enable him to contribute additional sums to his children\u2019s support. The burden of proof is on the petitioner to clearly establish the increased need and corresponding ability to pay.\u201d (Emphasis added.) (67 Ill. App. 2d 410, 414, 214 N.E.2d 139,141.) As we pointed out in In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279, recent decisions of this court have not rigidly applied this standard. Neither, however, have they rejected it. Instead, they have tempered the Kelleher standard by applying a more flexible balancing approach. (Sullivan v. Sullivan (1978), 57 Ill. App. 3d 958, 373 N.E.2d 829; Swanson v. Swanson (1977), 51 Ill. App. 3d 999, 367 N.E.2d 512.) Under this balancing approach, increased need of the children and increased ability to pay on the part of the noncustodial parent are not the sole determinants of a decision to modify a prior child support order. Rather, they are just two, albeit the most important, of a number of factors to be weighed by the court in determining whether an increase in child support is necessitated. Other factors include the ages of the parties, their condition of health and station in life, and the income and property of both the custodial and noncustodial parents. Swanson.\nAlthough the majority opinion here recites that the trial court\u2019s reliance upon Kelleher and its failure to utilize the balancing approach dictated by Swanson, Sullivan, and Sharp in denying Mrs. Clark\u2019s petition to increase child support was erroneous, it appears that the real basis for reversal is the trial court\u2019s error \u201cin holding that modification is allowable only upon a showing that the non-custodial parent\u2019s ability to pay has increased.\u201d If this is indeed the case, I view the portion of the majority opinion relating to the impropriety of the Kelleher standard as dicta, since the real reason for reversal is a misinterpretation of and a misapplication of the Kelleher standard by the trial court. The appropriate part of the Kelleher test is whether the means or ability to pay \u201cso increased.\u201d The trial court\u2019s findings and letter to the participants erroneously suggest it did not determine any increased \u201cearnings\u201d or \u201cincome\u201d available to Mr. Luthy. It is apparent from the foregoing that this case does not present a proper forum in which to announce a complete and total abandonment of the Kelleher standard. I believe the proper case for such an action would be one in which the two-pronged Kelleher test is not met, yet equity demands a modification of the prior support order.\nHere, however, the allegedly inequitable nature of the Kelleher standard need not be addressed because the lower court committed reversible error in misapplying it. Had the trial court correctly applied the Kelleher requirements to the facts of this case it is clear Mr. Luthy\u2019s support payments would have been increased in excess of the extra $100 per month he voluntarily agreed to pay. Although his earnings may not have increased in a strict sense, he nevertheless has an increased ability to pay a greater amount of child support. His annual gross income exceeds $50,000, and the net value of all his assets is between $100,000 and $200,000. When there is evidence of an increased ability to pay, increased need is established by the fact that since the entry of the original child support order the children have grown older and the cost of living has increased. (Addington v. Addington (1977), 48 Ill. App. 3d 859, 363 N.E.2d 151.) It should be here noted, however, that though the trial court found increased need, it believed them not in need because Mrs. Luthy was \u201cwell employed.\u201d\nIn short, had this case been one in which the proper application of the Kelleher standard had led to an inequitable result, I might concur with the majority that the time had come for a complete departure from Kelleher. However, given the fact that the trial court misapplied Kelleher when a proper application might have resulted in increased child support payments, the majority\u2019s rejection of Kelleher is an unnecessary and premature step which beclouds its holding. I believe the majority opinion may lead to confusion among the bench and bar, and will tend to encourage unreasonable numbers of petitions for increased support for lack of the firm and established guidance of the Kelleher standard.", "type": "concurrence", "author": "Mr. JUSTICE BARRY," } ], "attorneys": [ "Thomas J. O\u2019Brien, of Kansas City, Missouri, for appellant.", "Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellee." ], "corrections": "", "head_matter": "In re SUPPORT OF CHRISTIAN ALLEN LUTHY et al., Minors. \u2014 (GAIL A. LUTHY, a/k/a Gail Luthy Clark, Plaintiff-Appellant, v. CHARLES F. LUTHY, Defendant-Appellee.)\nThird District\nNo. 80-220\nOpinion filed April 30, 1981.\nBARRY, J., specially concurring.\nThomas J. O\u2019Brien, of Kansas City, Missouri, for appellant.\nRalph Froehling, of Froehling, Taylor & Weber, of Canton, for appellee." }, "file_name": "0987-01", "first_page_order": 1009, "last_page_order": 1014 }