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Richheimer v. Richheimer

MAY 13, 1965.




Appeal from the Circuit Court of Cook County, Divorce Division; the Hon. DANIEL A. COVELLI, Judge, presiding. Decree reversed and cause remanded with directions.


Rehearing denied June 3, 1965.

This is an appeal from a decree entered in an uncontested suit for separate maintenance. Defendant charges that the alimony and attorneys' fees awarded were excessive. Plaintiff has cross-appealed, charging that the alimony and child support were inadequate. Two of her attorneys have filed cross-appeals, claiming that their fees were inadequate. Defendant filed a motion to dismiss the attorneys' cross-appeals, which motion was taken with the case. The principal issues on appeal are the amount of the defendant's income and what would be a fair portion thereof as alimony; the standing of the attorneys to file cross-appeals; and the proper amount to be awarded for attorneys' fees.

The Richheimers were married in 1933 and lived together until August 1960. They have three children — an adult son, Robert, and two minor daughters Laurie and Kathie, who were seventeen and thirteen in December 1963 at the time of the decree. Kathie is afflicted with cerebral palsy and requires special care and attention. Defendant is the president and one of the three directors of Richheimer Coffee Company (Richheimer), a wholesale coffee business. The preferred stock and half of the common stock of the company is held by a testamentary trust established by defendant's father for the benefit of his mother during her lifetime. Defendant and his brother each own one-quarter of the common stock and are the residual beneficiaries of the testamentary trust. Dividends were paid on the common stock in 1957, 1958, 1960 and 1961, but not in 1962. No common stock dividends were paid before 1957. Defendant and his brother also each own fifty percent of the stock of the Thayse Coffee Company (Thayse) which is engaged in the wholesale coffee business as a selling agent. Thayse has the same address as Richheimer and buys coffee from the latter. Defendant testified that Richheimer sold coffee to Thayse at a profit. He testified that his original investment in Thayse was $500 and that its net assets at the end of March 1962 were $64,466.24.

Defendant received approximately $43,500 in salary from Richheimer and $2,500 from Thayse in 1962, the year prior to the entry of the decree. In 1962, defendant's total taxable income was $54,885.30, including a taxable, nonrecurring capital gain of about $4,500 and a bonus of about $5,000, based on ten percent of the profits of Richheimer, provided such sum does not exceed $5,000.

In December 1963, at the time of the entry of the decree for separate maintenance, defendant had an interest in the Richheimer employees' pension fund computed to be $74,028, which cannot be withdrawn until 1975 when he reaches the age of sixty-five. He also had $5,000 in bonds plus approximately $20,000 in cash. His only other asset was the home in Glencoe worth approximately $50,000, where the plaintiff and their two daughters live. He formerly owned a 34-foot sail boat or yacht costing $25,000 and belonged to a yacht club, but sold the yacht in 1962. The family usually took a month's cruise during the summer and also took other trips and vacations and generally lived in the manner of a well-to-do family.

Plaintiff is a sculptress and in 1962 she earned $1,800 on a single commission. There is no evidence to indicate that she had earnings of any regularity from such source.

The complaint for separate maintenance and other relief was filed on October 11, 1960. The cause was referred to a master, who found among other things that temporary alimony and child support of $1,700 a month was fair and reasonable. It was conditioned on the defendant's payment of Kathie's medical expenses, Robert's college expenses, the payment of insurance premiums, and the payment of real estate taxes on the house. During the period prior to the entry of the decree, extended and intensive negotiations were conducted regarding a divorce and property settlement, the cause being continued from time to time. In about September 1962 plaintiff refused an offer of settlement. In June 1963 a stipulation was entered into and pursuant thereto, a hearing on plaintiff's complaint for separate maintenance was had before the chancellor. There was no contest on the merits, and the testimony was limited to the amount of the defendant's income and the amount to be awarded for the support of plaintiff and their children.

The decree ordered the defendant to provide the following:

1. Alimony of $15,500 annually;

2. Child support of $6,000 annually ($2,400 for Laurie and $3,600 for Kathie) tax free;

3. Rent-free use of the Glencoe home, the reasonable rental value of which was $6,000 a year;

4. Real estate taxes on the home, which now exceed $1,000 annually; and

5. To carry life insurance and pay the premiums thereon of $2,500 a year for the ...

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