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Goldberg v. Goldberg

JULY 17, 1975.

BEVERLY C. GOLDBERG, PLAINTIFF-APPELLEE,

v.

HARVEY S. GOLDBERG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.

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

This appeal arises in part out of two post-decretal divorce petitions filed by the appellee, Beverly Goldberg. The first petition, alleging a change in the circumstances of the parties, asked for an increase in the alimony awarded to Beverly Goldberg in the divorce decree entered on January 9, 1964. The second petition asked for an order directing appellant, Harvey Goldberg, to pay certain medical bills which he was allegedly obliged to pay under the provisions of the divorce decree. After an evidentiary hearing, the trial court ordered Mr. Goldberg to increase his alimony payments by approximately $2,000 per year and to pay certain medical bills totaling $5,094.35.

After the above proceedings, attorneys for Mrs. Goldberg, the firm of Robbins, Coe, Rubinstein & Shafran, Ltd. (hereinafter referred to as RCR&S, Ltd.) and John P. McAuliffe, a sole practitioner, filed petitions seeking attorney's fees from Mr. Goldberg for services allegedly performed during the above proceedings. RCR&S, Ltd., filed an additional petition seeking attorney's fees pending appeal. After an evidentiary hearing, the trial court ordered Mr. Goldberg to pay attorneys' fees of $1,500 to John McAuliffe and $3,000 to RCR&S, Ltd. The trial court further ordered that Mr. Goldberg pay an additional $1,500 to RCR&S, Ltd., to defend the appeal.

Mr. Goldberg now appeals from all of the above orders and presents the following issues for review: (1) whether Mrs. Goldberg clearly proved that her present needs had materially changed and that Mr. Goldberg's ability to meet those needs had materially changed since the entry of the divorce decree between the parties; (2) whether Mrs. Goldberg proved that Mr. Goldberg was obligated under the provisions of the divorce decree to pay certain of Mrs. Goldberg's alleged medical expenses; (3) whether the evidence proved that Mrs. Goldberg was unable to pay her own attorneys' fees and whether the fees assessed against Mr. Goldberg were reasonable, necessary and adequately documented; and (4) whether the trial court was authorized to award attorneys' fees to defend the appeal in this cause before the services were even performed.

We reverse in part and affirm in part.

The first issue appellant, Mr. Goldberg, raises concerns the $2,000 per year increase in alimony. Mr. Goldberg contends that the trial court erred in awarding an increase in alimony because Mrs. Goldberg proved neither that her needs had materially increased nor that his ability to meet those alleged increased needs had materially changed since the entry of the original divorce decree.

• 1 In order to justify the increase in alimony both Mrs. Goldberg's needs and Mr. Goldberg's ability to pay must have increased since the entry of the divorce decree. (See Arnold v. Arnold (1947), 332 Ill. App. 586, 76 N.E.2d 335.) Furthermore, this change in the circumstances of the parties must be a material one. As stated in Louthan v. Louthan (1970), 130 Ill. App.2d 281, 283, 264 N.E.2d 797, 798-99:

"A decree of divorce is final as to the circumstances and conditions of the parties as of the date of its entry. Upon a subsequent application for a modification, only matters which have occurred subsequent to the entry of the decree may be considered by the court. Before a modification will be allowed it must be shown that the circumstances of the parties have changed materially. See generally Green v. Green, 86 Ill. App.2d 362, 229 N.E.2d 565."

Additionally, in showing that the circumstances of the parties have materially changed, the burden of proof is on the applicant. See Patterson v. Patterson (1960), 28 Ill. App.2d 76, 170 N.E.2d 11; Kelleher v. Kelleher (1966), 67 Ill. App.2d 410, 214 N.E.2d 139.

In the case at bar, Mrs. Goldberg's alimony was increased from $833.33 per month to $1,000 per month. As evidence of a substantial change in her circumstances, Mrs. Goldberg testified that she was suffering from hypoglycemia which necessitated her having six meals a day at a cost of $15 per day or $450 in the average month. The above testimony, however, is unsupported by any competent medical testimony. In fact, the only medical doctor who testified at trial indicated that hypoglycemia is a common disease and that there is no reason why a person suffering from hypoglycemia would have to eat any unusual or difficult-to-take foods. Furthermore, there was no evidence offered as to what Mrs. Goldberg's food expense was at the time of the original divorce decree.

Another factor which Mrs. Goldberg urges as evidence of a material change in her circumstances is inflation. The trial court took judicial notice of the fact that the cost of living has gone up significantly since the original divorce decree was entered in January of 1964. We do not believe that inflation in itself is sufficient to establish a material change in circumstances. A material change in circumstances is not shown by merely having the court take judicial notice of inflation, but instead by evidence clearly indicating that the applicant's needs have thereby increased since the original award of alimony.

• 2 The record further indicates that after the divorce decree was entered in 1964, Mrs. Goldberg sought and attained employment as a real estate sales associate and was earning up to $500 per month. Although at the time the trial court ordered that the alimony be increased Mrs. Goldberg was not working, we believe that Mrs. Goldberg's capacity to work and earn money is a factor to consider in determining whether or not she sustained her burden of proving that her circumstances had materially changed. See Tan v. Tan (1972), 3 Ill. App.3d 671, 279 N.E.2d 486.

Mrs. Goldberg further argues that with the increase in alimony she will barely be able to meet her present expenses. However, the relevant consideration in determining whether an increase in alimony was properly awarded is whether the applicant's circumstances have materially changed and not whether the increase in alimony will barely meet the applicant's present expenses. Mrs. Goldberg's present living expenses could be well beyond those contemplated in the original divorce decree.

• 3 We have searched the record and studied the briefs and find no evidence that Mrs. Goldberg's circumstances have materially changed since the entry of the divorce decree. Accordingly, that part of the order of the trial court ...


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