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Busby v. Busby


MAY 21, 1973.




APPEAL from the Circuit Court of Iroquois County; the Hon. ROBERT J. IMMEL, Judge, presiding.


The plaintiff, Anna Janice Busby, brought an action in the Circuit Court of Iroquois County for divorce on the ground of mental cruelty. The trial judge rendered judgment for divorce in favor of plaintiff and awarded her periodic alimony and certain property. Plaintiff has appealed on the issue of the adequacy of the alimony and the refusal of the trial court to receive evidence relating to the nature of the defendant's misconduct in determining the amount of alimony.

Plaintiff in her original complaint had charged adultery but amended to change the grounds to mental cruelty. A hearing was held on August 25, 1972 and on that date the court decreed a divorce in favor of plaintiff on the ground of mental cruelty and continued all questions relating to child support, alimony, and the division of the property until Sept. 29, 1972.

• 1-3 At the hearing held on Sept. 29, 1972 plaintiff attempted to once again introduce evidence that defendant had committed adultery. Defendant objected and was sustained. Plaintiff contends that such evidence should have been admitted as weighing on the question of an appropriate alimony award. She cites Byerly v. Byerly, 363 Ill. 517, 525 as authority that a party has an unequivocal right to present such evidence. In Byerly the court stated, "There is no hard and fast rule for the fixing of alimony. Matters which are usually considered by the court in determining alimony are the ages of the parties, their condition of health, the property and income of the husband, separate property and income, if any, of the wife, the station in life of the parties as they have heretofore lived, and whether or not there are any children dependent upon either for support, and also the nature of the misconduct of the husband. It was never intended that the allowance of alimony shall be used as a means of visiting punitive damages upon the husband in favor of the wife for the husband's misconduct * * *." (Emphasis supplied).

• 4-6 In Reavis v. Reavis, 2 Ill. 242 the Illinois Supreme Court held that where a divorce was granted at one term of court it was error on the trial of the amount of alimony at the next term to permit the reintroduction of evidence of fault given by the plaintiff on the trial of the question of divorce. The court held that the testimony relating to the grounds of divorce was irrelevant to the inquiry on the question of allowance of alimony. The court said, "What would be a proper allowance * * * was surely the only question in a case like the present. * * *" We believe that the testimony sought to be adduced was entirely irrelevant and that the ruling of the trial court was proper in the instant case.

The plaintiff further contends:

1. that the amount awarded was inadequate in amount as a matter of law,

2. that defendant should be required to extend life insurance coverage for the benefit of the plaintiff and the minor children,

3. that defendant should make provision for plaintiff's retirement.

At the hearing plaintiff testified that her total monthly needs, including child support for 2 minor children of the parties was $700. She had been working for several weeks but was unable to cope with the 50 hours per week demanded by her employer and had quit. She expected to secure other employment which would produce $90 to $95 per week gross. The defendant, an insurance salesman, draws $1000 per month from his employer. The 1971 income tax return was introduced and showed that defendant's gross income was $17,500 salary and $480 director's fees with outside salesman's travel expenses of $1745 and $478 for other business expenses leaving about $15,800 before state and federal income taxes. Defendant said that other than higher income taxes this would remain about the same in 1972. A financial report was introduced which showed that excluding the mortgage on the home awarded to plaintiff, defendant had a current indebtedness of $62,000 (plus $1100 attorney fees awarded to plaintiff by the court). Defendant was paying $500 a month on just 2 of his loans. His current expenses were about $500 a month.

The court awarded plaintiff, who had no special equities:

The home with a net equity of about $12,500 The furnishings worth about 5,000 A car worth about 500 _______ Total $18,000

Child support $2600 per year Alimony $2600 per year for 1st year ________ Total $5200 for 1st year plus

Hospital and medical insurance for children Beneficiary of a whole life policy of $20,000 for 5 years at least. *fn1

The court awarded defendant the remaining assets having a present case value $70,830 and on which there was a current indebtedness of $62,060 to be paid by defendant. _________ Net $ 8,770

Less attorney fees $ 1,100 to be paid plaintiff's lawyer in six months _________ Net $ 7,670

It is obvious that defendant did not come out well on the property division.

Plaintiff needs $ 8,400 (her own estimate) Alimony and child support $ 5,200 from plaintiff _________ Deficit $ 3,200 ÷ 52 = $61.54 per week

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