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Palacio v. Palacio

NOVEMBER 4, 1975.

ULLA PALACIO, PLAINTIFF-APPELLEE,

v.

EDWARDO PALACIO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This action was heard upon plaintiff's amended complaint asserting physical cruelty as grounds for divorce. Following a bench trial, judgment for divorce was entered in favor of plaintiff, and she was awarded alimony in gross. During post-trial proceedings, the trial court found defendant guilty of willful contempt and perjury, and as a result, sentenced him to serve two terms totaling 90 days, to run consecutively, in the Cook County jail. Defendant appeals from the award of alimony in gross and the contempt citations. The sufficiency of the evidence supporting that portion of the judgment granting the divorce is not questioned.

The following was awarded to plaintiff as alimony in gross: (1) the sum of $2000 to be paid in weekly installments of $20; (2) a savings account, which had previously been held by the parties in joint tenancy, with approximately $900 on deposit; (3) possession of the household furniture, furnishings, and other personalty contained in the parties' marital residence, except for three paintings, certain chairs, and a bedroom set, which were granted to defendant; (4) a certain 1970 Ford LTD; and (5) certain shares of common stock of Wickes, Inc., which had previously been held by the parties in joint tenancy. Defendant was allowed all property he brought to the marriage, his personal possessions, and his post-separation purchases.

The record reveals that the parties were married in 1966. It was stipulated that the gross income earned by plaintiff and defendant in 1972 was $14,386.89 and $10,176.16 respectively. They also stipulated to wage statements received by each of them during the month prior to trial; for a one-week period, plaintiff earned $128.68 gross and received $96.04 after deductions, and defendant produced wage statements totaling $900 gross and $657.12 net for one month.

In support of her prayer for alimony, Mrs. Palacio testified that she had been employed throughout the marriage. Although she had earned $1000-$1200 per month during the spring of 1972, her income decreased to $800-$900 per month at the beginning of 1973, and she was earning about $520 monthly at the time of trial. She stated that she had contributed most of the articles of furniture which had been brought to the marriage by the parties. After their marriage, she purchased additional articles of furniture from her employers at a discount, using funds from the parties' joint bank account. Plaintiff further testified that in 1972, she began buying stock in Wickes, Inc., her employer at that time. Following threats from defendant, she allowed defendant to become a co-owner of the stock in joint tenancy. The parties also held a joint bank account with the Harris Trust and Savings Bank, to which, according to plaintiff's testimony, she contributed a majority of the funds on deposit. Subsequent to their separation in 1972, plaintiff continued to remit payments, totaling approximately $580 toward various marital obligations incurred by the parties. In addition to these disbursements, plaintiff testified that defendant owed her $35.20 for a partial rent payment and $244 for the proceeds of a paycheck drawn to plaintiff, but which was endorsed and cashed by defendant. Defendant stipulated that he had signed the check. Although plaintiff was residing with relatives at the time of trial and therefore did not incur a rental expense, she estimated that her monthly living expenses, if she lived alone, would be about $590.

Mr. Palacio testified that he was paying $128 per month toward the purchase price of a new car and that he incurred additional monthly expenses for credit card charges. He admitted that all household furniture, with the exception of two chairs, was either contributed by plaintiff or purchased during the marriage with checks drawn on their joint account. Defendant further testified that subsequent to their separation, he purchased three paintings and engaged in one transaction on the commodities exchange.

Upon this evidence, alimony in gross was awarded to plaintiff. Defendant raises two issues with respect to this award: whether an award of alimony in gross is proper when special equities are neither alleged nor proven, and whether this award ordered by the trial court is supported by the evidence.

• 1, 2 Section 17 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 18) provides as follows:

"Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable."

Before property can be ordered conveyed pursuant to this section, special equities justifying such an award must be specifically alleged in the complaint and established by competent evidence adduced at trial. (Lawyer v. Lawyer, 19 Ill. App.3d 571, 321 N.E.2d 7; Overton v. Overton, 6 Ill. App.3d 1086, 287 N.E.2d 47.) In addition to section 17, section 18 of the Act (Ill. Rev. Stat. 1971, ch. 40, par. 19), which provides in pertinent part as follows, authorizes an award for support and maintenance in conjunction with a divorce decree:

"The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable."

When either alimony or a settlement in lieu of alimony is awarded under section 18, special equities need not be pleaded nor proven. (Miezio v. Miezio, 6 Ill.2d 469, 129 N.E.2d 20, citing Persico v. Persico, 409 Ill. 608, 100 N.E.2d 904.) All that is required to sustain an award ordered pursuant to this section is that the recipient spouse is entitled to alimony and that the conveyance is equitable. (Cross v. Cross, 5 Ill.2d 456, 125 N.E.2d 488; Persico v. Persico.) Whether the recipient spouse is entitled to alimony depends upon that spouse's needs and the other spouse's ability to pay alimony. (Klebba v. Klebba, 108 Ill. App.2d 32, 246 N.E.2d 681.) Thus, the power of the trial court to divide and settle the property rights of parties under section 17 is distinct from its power to direct a settlement in lieu of alimony under section 18. Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85.

• 3 The phrase "alimony in gross" refers to one type of award which may be granted pursuant to section 18. More specifically, this phrase describes an arrangement for support and maintenance in which the entire award is vested, not subject to modification, and definite in amount, regardless if the award consists of the payment of money or the transfer of specific real or personal property, or both. (Imbrie v. Imbrie, 94 Ill. App.2d 60, 236 N.E.2d 381; Walters v. Walters, 341 Ill. App. 561, 94 N.E.2d 726, aff'd, 409 Ill. 298, 99 N.E.2d 342.) Unlike periodic alimony, when installment payments are provided for in an order for alimony in gross, such payments are always for a definite length of time. (Walters v. Walters.) When alimony in gross is ordered, the amount and terms of such an award are largely within the discretion of the trial court, subject to correction only upon a finding that this discretion was improperly exercised. Donini v. Donini, 331 Ill. App. 405, 73 N.E.2d 127.

In the instant case, an award of alimony in gross was granted in lieu of alimony; the court not only referred to the award as "alimony in gross," but also provided that all rights of the parties by way of alimony were forever barred. Since such an award is authorized by section 18, we need not determine whether plaintiff alleged and established the existence ...


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