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Gilmore v. Gilmore

APRIL 8, 1975.

MARY JANE GILMORE, PLAINTIFF-APPELLANT,

v.

ROBERT LEE GILMORE, DEFENDANT-APPELLEE. — (MITCHELL EDELSON, JR., APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Mary Jane Gilmore, was granted an uncontested divorce from defendant Robert Lee Gilmore. The trial court's decree awarded plaintiff periodic alimony and granted defendant custody of the minor children as well as exclusive possession of the marital home. The decree further directed defendant to maintain the home, continue making mortgage payments, and pay real estate taxes. When the youngest child reaches 18 years of age, the court ordered that the house be sold and that defendant receive credit for any monies he has advanced for real estate taxes, mortgage payments, and capital improvements. The net of the sale proceeds are then to be divided between plaintiff and defendant.

Plaintiff prosecutes this appeal from those portions of the decree that grant her alimony; that allow defendant exclusive possession of the home; and that permit defendant to take credits for his payment of the mortgage, real estate taxes and capital improvements prior to dividing the proceeds from the sale of the house.

Plaintiff's prior attorney, Mitchell Edelson, Jr., also appears in this proceeding as an additional appellant. He appeals from that portion of the decree ordering defendant to pay attorney's fees and from the rulings of the trial court which prohibited him from testifying in support of his request for fees and prevented him from questioning both plaintiff and defendant regarding their respective abilities to pay his fees.

We shall first consider the issues raised by plaintiff.

I.

Mrs. Gilmore challenges the sufficiency of the trial court's award of periodic alimony. The decree ordered defendant to pay to plaintiff $825 per month as alimony, and this amount, plaintiff urges, is wholly inadequate, contrary to the manifest weight of the evidence, and represents an abuse of the trial court's discretion.

The findings of the trial court as set out in its decree reveal that the parties had been married since 1946; that they have eight children who ranged in age from 10 to 26 years at the time of the decree; that defendant is a physician whose net income (after taxes) for the years 1971 and 1972 was $41,167 and $40,245.93 respectively; that the parties have no assets, no bank accounts, no stocks and bonds, and no equity other than the marital home which is subject to an outstanding mortgage indebtedness of approximately $21,000; that defendant had income tax obligations of approximately $13,000, loans payable of approximately $17,000, and has committed himself to provide college educations for his children. The decree further ordered that the defendant should maintain $25,000 of life insurance payable to plaintiff, to carry necessary hospitalization insurance for plaintiff, to pay plaintiff's extraordinary medical and dental expenses, and to permit plaintiff to take one-half the furniture from the marital home.

On appeal plaintiff points out that in the trial court she testified that her monthly expenses amounted to $1,455 and submitted an itemized list to support such claim; that she had no personal assets other than her interest in the marital home; and maintains that the award of $825 bears no relation to her needs in order to live in the station of life that she was accustomed to while married to defendant.

• 1 The purpose of an alimony award is to furnish support to the wife or to contribute to her partial support. (Byerly v. Byerly (1936), 363 Ill. 517, 526, 2 N.E.2d 898; 16A I.L.P. Divorce § 151.) Its proper measure is the need of the wife and the ability of the husband to pay. (Klebba v. Klebba (1969), 108 Ill. App.2d 32, 40, 246 N.E.2d 681.) The amount of the award lies within the discretion of the trial court, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 349, 239 N.E.2d 792; Canady v. Canady (1964), 30 Ill.2d 440, 444, 197 N.E.2d 42; Sandberg v. Sandberg (1973), 11 Ill. App.3d 495, 501, 297 N.E.2d 654.

• 2 In the instant case the trial court noted during the course of the hearing that the aggregate amount of alimony requested by plaintiff would have equaled nearly 50 percent of defendant's yearly net income as reflected by the evidence presented. We have reviewed the record that was before the trial court. We note the so-called monthly expenses claimed by the plaintiff include items which a trial court could properly question both as to their need, whether they would be recurring, and the amount. We, therefore, conclude that the decision evidences no abuse of discretion and is supported by the manifest weight of the evidence. We, therefore, affirm the alimony award.

II.

Plaintiff next attacks those portions of the decree which grant defendant exclusive possession of the marital home and give him credits on the ultimate sale proceeds from the house. Plaintiff and defendant held title to the property as joint tenants, and plaintiff argues that the trial court's order deprives her of her equity in the property and, as such, is tantamount to a transfer or conveyance of her property to defendant, and that there is no proof of special equities in defendant as required by the Illinois Divorce Act.

In Illinois the transfer of property from one spouse to another pursuant to a divorce decree is governed by statute. (Ill. Rev. Stat. 1973, ch. 40, pars. 18, 19.) Section 18 (par. 17) permits the court to compel the party holding title to property to convey the same to the party who is equitably entitled to it. Our courts have held, however, that to justify a conveyance or transfer under section 17, special circumstances and equities must be alleged and proved, but that this is unnecessary when the court orders a conveyance or transfer of property in lieu of alimony under section 18 of the Act (par. 19). (Debrey v. Debrey (1971), 132 Ill. App.2d 1072, 1074, 270 N.E.2d 43.) Accordingly, plaintiff contends that the ...


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