May 7, 2001

JUSTICE BYRNE delivered the opinion of the court:

Respondent, Marvin L. Letsinger, appeals the judgment of thecircuit court of Winnebago County increasing child support andawarding attorney fees to petitioner, Marcella A. Letsinger. Marcella cross-appeals from the amount of the trial court's awardof attorney fees and from the denial of her motion for contempt. We affirm as modified and remand with directions.

The parties' marriage was dissolved on August 11, 1997. Thetrial court awarded sole custody of the parties' minor child,Shana, to Marcella and ordered Marvin to pay $145 per week in childsupport. The judgment further required Marvin to pay $98 per weekto Marcella for maintenance until July 18, 1999, and to providemedical insurance continuation coverage (COBRA) for Marcella untilthe coverage expired or she became eligible for group insurancecoverage, whichever occurred first. The trial court awardedpossession of the marital residence to Marcella. Marcella retained60% of the equity in the marital residence, and Marvin retained theremaining 40%. The judgment allocated the marital debts betweenthe parties, each to assume sole responsibility for, and hold theother harmless from, the assigned debts. Marvin's attorneys weregranted judgments against him for attorney fees totaling $5,304. Apparently, after the attorneys were granted judgments againstMarvin, they filed liens on the marital home. On October 27, 1997,following Marcella's motion to reconsider, the court modified thejudgment, awarding Marcella all of the equity in the maritalresidence.

On November 3, 1997, Marvin filed a bankruptcy petition andwas discharged of the marital debts allocated to him in thejudgment of dissolution. On November 25, 1998, Marcella filed anamended motion for relief and contempt. Marcella alleged thatMarvin's discharge of the marital debts constituted a substantialchange in circumstances justifying an increase in child support. Marcella also sought a contempt finding against Marvin for hisfailure to pay her COBRA premiums from May 1998 as previouslyordered by the court in the judgment of dissolution.

At the hearing on the motion, Marcella testified that thebankruptcy court discharged Marvin's marital debts and he hadfailed to pay any of the debts that were discharged, including (1)$5,304 in attorney fees to Marvin's former attorneys; (2) $3,103 inattorney fees to Marcella's attorney; (3) $8,791 to Dr. Albasha;(4) $425 in income taxes; (5) $320 to Neuman & Company; and (6)$133 to Oman & Oman. Marvin admitted that he had made no paymentson the debts allocated to him in the dissolution since he had filedfor bankruptcy.

Marcella also testified that she could not afford to pay themarital debts that originally had been allocated to Marvin. Hernet take-home pay amounted to $1,466 a month, and her student loansexceeded $16,000. Marcella had made some payments on her owndebts, and she had paid some back taxes. Marcella attempted torefinance the marital residence but was unable to do so because ofthe liens on the marital home. She feared that she would lose theequity in her home as a result of the liens. Marcella's financialaffidavit from February 1999 reflected monthly living expenses of$2,870, biweekly net earnings of $747, plus child support of $628per month. She paid $165 per month on debts totaling $62,725. Shealso paid $214 in car payments per month.

Marcella further testified that Shana had become involved ina number of extracurricular activities that required her topurchase uniforms and equipment and to pay for camps. Marcellastated that she had been forced to pay $600 for cheerleading campand that Marvin had failed to pay his share of the camp fees within30 days, as previously ordered by the court. Marcella stated thather house payments, homeowner's insurance, and automobile insurancehad increased. Marcella stated that she could not afford to payfor her daughter's extracurricular activity expenses if forced topay the debts discharged in bankruptcy by Marvin.

Regarding her health insurance, Marcella stated that she didnot become eligible to receive health insurance coverage until July1999 due to a preexisting condition. Since May 1998, Marcella hadbeen paying the COBRA premiums despite the judgment requiringMarvin to pay the premiums. As of January 1999, the cost ofpremiums had increased from $233 per month to $243 per month.

Marvin testified that, although he had been earning $52,000per year at the time child support was calculated, he was nowearning $45,000 to $46,000. Marvin admitted that because of hisbankruptcy discharge he was no longer responsible for the maritaldebt allocated to him in the judgment. Marvin's financialaffidavit reflected that, excluding child support and maintenancepayments, he had monthly living expenses of $1,562. Marvinadmitted that he had not paid half of Shana's extracurricularactivity expenses.

Following the hearing, the court found that the debts incurredby Marcella due to the discharge in bankruptcy by Marvinconstituted a substantial change in Marcella's circumstanceswarranting an increase in child support. The court determined thatthe substantial debts precluded Marcella from providing for thechild in the manner she would have been able to provide had Marvinnot filed bankruptcy. Determining that it would be appropriate todeviate from the statutory guidelines, the court increased thechild support obligation to $182 per week.

Additionally, the court awarded to Marcella all of thereasonable attorney fees that she had incurred in connection withher petitions, finding that Marcella lacked the ability to pay herown attorney fees and that Marvin had the ability to contributetoward the fees. The court further held Marvin in contempt ofcourt for wilfully failing to comply with the previous court orderthat required him to pay $300 for Shana's cheerleading expenses.

Thereafter, Marcella filed a petition for attorney fees in theamount of $4,370. Marvin objected to $890 of attorney fees, themajority of which were related to the removal of liens recordedagainst the marital residence by Marvin's former attorneys. Thetrial court agreed with Marvin and awarded Marcella $3,304 in fees.

The parties filed cross-motions for reconsideration. Marvinasked the court to reconsider modifying the child supportobligation and the award of attorney fees to Marcella. Marcellarequested that the court increase the amount of child support andfind Marvin in contempt for failing to pay her COBRA premiums.

On April 4, 2000, the trial court found that a total of $17,925 in marital debts had been shifted to Marcella as a resultof Marvin's bankruptcy judgment that "will impede [Marcella's]ability to provide for the needs of herself and the minor child,thus, justifying a deviation from the statutory guideline." Thecourt added an additional sum of $97 per week to the statutorychild support of $132 per week for a total of $229 per week,retroactive to November 25, 1998, the date on which Marcella filedher amended motion for relief and contempt. The court arrived at$97 per week by dividing 184 weeks, the number of weeks betweenNovember 25, 1998, to June 1, 2002, the date Shana will graduatefrom high school, into $17,925, the amount of debt Marcella was nowresponsible for as a result of Marvin's discharge. The court founda child support arrearage of $6,596 as of March 10, 2000, bymultiplying $97 by 68 weeks and ordered Marvin to pay the arrearageat a rate of $20 per week until paid in full. The court deniedMarcella's request to reconsider ruling on the COBRA issue. Thecourt also denied Marvin's motion to reconsider in its entirety. Marvin appeals. Marcella cross-appeals.

On appeal, Marvin first contends that the trial court lackedjurisdiction to modify the custody support. Marvin asserts thatthe trial court was divested of jurisdiction by the failure to filea petition for modification of child support within 30 days of thefinal judgment of dissolution. This argument lacks merit. Thetrial court has inherent jurisdiction to modify child support in adissolution proceeding upon a showing of a substantial change incircumstances, and the trial court need not expressly retainjurisdiction. See 750 ILCS 5/510(a)(1)(West 1998). Unlike otherfinal orders, a child support order is always modifiable. In reMarriage of Petramale, 102 Ill. App. 3d 1049, 1053 (1981).

Marvin next contends that the trial court abused itsdiscretion in increasing child support. Specifically, Marvinmaintains that the trial court erred in considering that thedischarge of marital debt in bankruptcy constituted a substantialchange in circumstances justifying an increase in support. Wedisagree.

The modification of a child support award will be made only onproof of a substantial change in circumstances pursuant to section510(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510(a)(1)(West 1998)). A trial court'sdetermination that there has been a substantial change incircumstances to warrant the modification of child support lieswithin the discretion of the trial court and will not be disturbedabsent an abuse of discretion. Villanueva v. O'Gara, 282 Ill. App.3d 147, 149 (1996). A trial court abuses its discretion when noreasonable person would agree with the decision. In re Marriage ofMitteer, 241 Ill. App. 3d 217, 224 (1993).

The basis for determining a substantial change incircumstances is the needs of the child and the ability of theparents to respond to those needs. Certainly, Marvin's dischargeof his marital debt affected the ability of both parents to respondto Shana's needs. The discharge in bankruptcy relieved Marvin ofthe legal obligation of paying certain debts, thereby affecting asignificant change in his financial condition. In response, anequal but opposing significant change occurred in Marcella'sfinancial condition. Because Marcella is now responsible for asubstantial debt due to Marvin's discharge of that debt, Marcella'sexpenses have so increased beyond what they were at the time of thedissolution that she must have more money to care for Shanaproperly. Not only is Marcella spending her income paying asubstantial increased amount of debt, but the evidence shows thatthe cost of providing shelter for Shana has increased, expenses inraising Shana have increased, and Marvin has greater incomeavailable as a result of the discharge of marital debt inbankruptcy. We determine that the trial court properly consideredthe discharge of marital debt in bankruptcy to constitute asubstantial change in circumstances to warrant an increase in childsupport.

We find additional support for our holding in courts of otherjurisdictions. In Simpkins v. Simpkins, 435 So. 2d 753, 754 (Ala.App. 1983), the husband filed a postdissolution petition forbankruptcy and was subsequently discharged of his marital debt. The wife sought the modification of child support on the groundthat since she was required to pay the husband's formerindebtedness her expenses had greatly increased beyond what theywere at the time of the dissolution, and she needed an increase inchild support. The court held that, because she was required topay the debt incurred by the husband's discharge, it presented amaterial change in her financial situation to justify an increasein the award of child support. On appeal, the court upheld theincrease based on the husband's discharge of debt in bankruptcy,which burdened the wife with additional debt. Simpkins, 435 So. 2dat 754.

Similarly in Coakley v. Coakley, 400 N.W.2d 436, 441 (Minn.App. 1987), the court found that the releasing of marital debtobligations through bankruptcy caused damage to the former spouse'sfinancial circumstances, which created a substantial change incircumstances warranting an increase in child support. See alsoEckert v. Eckert, 140 Wis. 2d 770, 424 N.W.2d 759 (App. 1988)(trialcourt's finding of a substantial change in circumstances warrantingmodification of maintenance properly premised on consequences ofhusband's discharge in bankruptcy of marital debt); In re Marriageof Clements, 134 Cal. App. 3d 737, 746, 184 Cal. Rptr. 756, 761(1982)(wife's discharge in bankruptcy of debts, which then becameobligation of husband, justified reduction of wife's support); Inre Danley, 14 B.R. 493, 494 (Bankr. D. N.M. 1981)(husband'sbankruptcy can impact upon needs of wife and, thus, constituteschange in financial condition required for modification ofsupport).

Marvin argues that the trial court circumvented or infringedupon the jurisdiction of the bankruptcy court in modifying childsupport. Congress gave priority to child support debt by carvingan exception to the "fresh start" that bankruptcy affords debtors. 11 U.S.C.