specially concurring:
Although 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.
In Kelleher, this court stated that “[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’s support. The burden of proof is on the petitioner to clearly establish the increased need and corresponding ability to pay.” (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.
Although the majority opinion here recites that the trial court’s reliance upon Kelleher and its failure to utilize the balancing approach dictated by Swanson, Sullivan, and Sharp in denying Mrs. Clark’s petition to increase child support was erroneous, it appears that the real basis for reversal is the trial court’s error “in holding that modification is allowable only upon a showing that the non-custodial parent’s ability to pay has increased.” 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 “so increased.” The trial court’s findings and letter to the participants erroneously suggest it did not determine any increased “earnings” or “income” 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.
Here, 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’s 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 “well employed.”
In 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’s 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.