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Ulm v. Ulm

APRIL 8, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. HYMAN FELDMAN, Judge, presiding. MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 10, 1971.

Plaintiff-Counterdefendant ("plaintiff") appeals from three orders of the Circuit Court requiring him to pay temporary alimony and child support, and temporary attorney's fees to his wife on her counterclaim for separate maintenance filed after plaintiff's complaint for divorce. The first order, entered August 8, 1969, provided that the plaintiff pay $800 per month for support of his wife ("defendant") and their only child, retroactive to January 29, 1969, and $4500 in temporary attorney's fees. Plaintiff appealed from this order (No. 54589). On September 23, 1969, the second order was entered, providing that he pay $800 per month pending the appeal, and $1200 for his wife's attorney's fees to defend against the appeal. He appealed from this second order also (No. 54617). A third order was then entered December 17, 1969 (No. 54782) which, in addition to requiring plaintiff to pay $800 per month pending appeal, provided, for the first time, that he pay $1,702.59 for real estate taxes, special assessments, and insurance on the parties' home in which the wife and child were living, and an additional $2500 in attorney's fees to defend the second appeal.

Plaintiff first contends that the amount of the support orders was excessive in view of the parties' respective incomes, and constituted an abuse of the trial court's discretion. His second contention is that the award of a total of $8200 in temporary attorney's fees was similarly an abuse of the trial court's discretion.

The parties were married in 1952 and have one child, a boy, age eleven. They own a home, in which defendant and her son live, which is valued at from $40,000 to $50,000 and is mortgage free. In August of 1965, plaintiff (who is now 38 years old) left the home, taking an apartment which cost him $700 a month to maintain, where he remained until October of 1968. During this time, and while he was living with defendant, plaintiff was employed as the sales manager and secretary of Osgood Displays, a company owned by his father. Prior thereto he had attended Parsons College for 1 1/2 years. Plaintiff testified that from 1965 to 1968 his yearly gross income had varied from about $40,000 to $52,000. part of which he had to return to the company to pay off amounts borrowed in earlier years. His father discharged him in October of 1968 after two major accounts had been lost, sales had dropped by one half, warnings had been given by his father that he and his wife were spending too much money, and he had been repeatedly told that if this situation did not improve, he would be discharged. When his employment was terminated, he owed the company $23,000, which remains unpaid. The father's testimony concerning plaintiff's discharge and debt was substantially the same, and he testified further that he had no intention of bringing his son back into the company.

Continuing with plaintiff's testimony, he said that after losing his position, he accepted a job as captain of a private yacht in the Bahama Islands at $500 a month plus full maintenance. He held this position from October of 1968 to April of 1969. During that period, he sent $100 per week to defendant. He then returned to Chicago, and after six or seven job interviews, began working for Unimark, International, owned by a friend of his father, training as an account executive. His salary on this job, which he began May 1, 1969, was the highest offer he received, being $18,000 per year gross, which the court recognized would net him approximately $14,000. During the three years he and defendant were separated, until he lost his job with Osgood Displays, he paid her approximately $14,000 per year. Aside from his half interest in the parties' home, plaintiff's only substantial asset is approximately $52,000 which will be due him under Osgood Displays' profit sharing and pension plans when he reaches age 65.

Defendant testified that during the three-year period from the time she and her husband were separated until he left his job at Osgood Displays, he was paying her $16,000 or $17,000 per year for support, which maintained her at the standard of living she had enjoyed prior to her husband's departure. After her husband left Osgood Displays, he sent her $100 per week. Since June of 1969, she has been receiving approximately $500 per month in voluntary support payments from plaintiff. She has also taken employment as a provisional elementary school teacher, and nets somewhat less than $4,000 per year. Defendant testified that, since October of 1968, she had received gifts totaling about $3,000 from her father-in-law, of which $300 was for a ski vacation with her son in Colorado. This, together with monies received from her husband between October of 1968 and July of 1969, amounted to approximately $6,300 for the nine-month period. Plaintiff testified further that she had been forced to lower her standard of living and borrow money from various sources, including a woman who worked for her. Her indebtedness was $5,700 to $6,000, including loans of $1400.

Defendant's theory of the case is that plaintiff was never "fired," but that he and his father entered into a conspiracy to reduce his income and make defendant and her child suffer in order to force her into accepting a divorce on plaintiff's terms. In support of this theory, defendant testified to conversations she had with her husband's father, who indicated that he was surprised when his son had left his job in October of 1968 as he needed his son's services. Plaintiff's father refused this evidence unequivocally, testifying that he had had conversations with his son over a period of about eight months, telling him that his services were not proving satisfactory and that he might be out of a job. Both father and son testified that plaintiff had, in fact, been discharged from his position with Osgood in September, 1968. No evidence was offered to show that plaintiff actually had a net income in excess of the $14,000 received from Unimark.

This yearly net income distributed between the parties in accordance with the Circuit Court's orders would produce a result approximately as follows:


Salary (net), approximately ................... $14,000.00

Less: Temporary alimony ($450 per month) and child support ($350 per month) ........................ $ 9,600.00

Insurance, taxes and assessments on house ................................ 1,702.59 11,302.59 _________ __________ Net remaining to plaintiff for his living expenses ......................... $ 2,697.41

Plaintiff would also be required to pay $8,200 in temporary ...

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