APPEAL from the Circuit Court of Kane County; the Hon. PAUL W.
SCHNAKE, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 4, 1975.
The defendant husband appeals from certain provisions of a decree granting his wife a divorce and other relief. He does not challenge the divorce, the child custody or the transfer of their home and certain personal property to her as alimony in gross. He points out that he suffers from schizophrenia and, since 1970, has been in and out of various mental hospitals, unemployed and without income. He contends that, insofar as the decree orders him (1) to pay support of $60 per week per child, plus certain medical and dental bills, and (2) to pay $3000 fees and $360 expenses to his wife's attorney, it ignores his complete inability to pay and is therefore excessive. He also (3) challenges certain provisions of the decree which purport to make future arrearages judgments and a "valid vested debt" against defendant at such time as his "expectancy" under his father's trust vests. We reduce the child support to $30 per week per child and reverse all other decretal provisions so challenged.
The parties were married on December 1, 1956, and lived together until April, 1970, when the defendant left and moved in with his mother. Three children, now 14, 15 and 17, were born to the parties. A complaint for divorce based on desertion by the defendant was filed by the wife in July, 1971. In the pretrial stages, the parties were not able to agree on a property settlement and child support payments.
The husband had been employed in his family's business, Charles Lenz and Sons, at $36,000 a year, until October, 1970, which was several months after leaving his wife. On October 31, 1970, he was hospitalized at Mercyville Hospital in Aurora for psychiatric treatment. He suffers from schizophrenia and was released from this initial perid of hospitalization on January 15, 1971. Thereafter, the defendant was in various mental hospitals, including Hines. His last hospitalization at Mercyville Hospital before the trial was from December 27, 1971, to May, 1972. The cost per diem as a patient at Mercyville exceeded $100.
During their marriage, the parties owned as joint tenants a five-acre tract of real estate on which the marital home, valued at approximately $115,000 was built in 1966. The unpaid balance due the first mortgagee was approximately $30,000 at the time of trial. The property was also encumbered by a second mortgage, in the amount of approximately $3,500, held by Patrick T. Driscoll, who has been the Lenz's family attorney and who was one of the attorneys representing the defendant in this divorce proceeding. At the time of trial, the plaintiff had paid all installments on the first mortgage since January, 1971, without contribution by the defendant. However, the second mortgage was in default, and the plaintiff had received a letter from Patrick T. Driscoll advising her of a potential mortgage foreclosure unless the default was remedied. Under the terms of the decree of divorce, this parcel of realty was awarded to the plaintiff as alimony in gross.
The plaintiff introduced as evidence the will of Charles Lenz, the husband's deceased father, which established two trusts, one termed the "Bessie Lenz" trust, which is not pertinent here, and a second, termed the "Residual Trust," which named his widow Bessie and Patrick T. Driscoll as trustees. It provided that the net income be paid to Bessie so long as she lives and that, upon her death, the remainder be divided into equal shares, one for each of his five children, including the defendant Walter, and the income paid to them for one year, at the end of which, if they survive, they shall receive the principal of their share. It also authorizes Driscoll, in his sole discretion, to pay to Bessie such additional sums out of principal as may be necessary for the comfort, welfare and maintenance of any of their children.
The corpus of the residuary trust consists of real and personal property valued at some $750,000. Patrick T. Driscoll, a cotrustee of this trust, testified that he made all of the temporary child support payments, which had been $25 per week per child. He also testified that he paid $500 pursuant to a court order awarding fees to the plaintiff's attorney. However, according to his testimony, none of these sums was paid under any provision of the trust. Rather, these sums were personally paid by himself on behalf of the defendant, Walter Lenz.
The defendant testified that he was presently unemployed and living with his mother, and that he owed sums of money to his mother, to Patrick T. Driscoll, to his brother, Richard Lenz, to Mercyville Hospital, and to doctors, aggregating some $38,000. He testified that he was not aware that he had any interest in the Residual Trust. He also testified that he had originally owned shares of stock in the family business, which he had transferred to his brother, Richard Lenz, in part for cancellation of a debt owed and in part for cash. He did not remember the value of the stock at the time of the transfer; nor when the transaction occurred. His wife, Helen, he said, had no knowledge of any indebtedness to Richard Lenz or of the stock transfer.
The wife testified that the defendant had left their home in April, 1970, and did not do so for the purpose of receiving psychiatric treatment. As stated above, his initial admittance to Mercyville Hospital was on October 31, 1970. The wife also testified that she owned no assets other than her undivided interest as a joint tenant with Walter K. Lenz in their home. She was currently employed on a part-time basis earning $2.50 per hour. She was offered $115,000 for the home but refused it.
After considering the evidence presented at the trial, the court entered the decree from portions of which the husband has appealed. It should initially be noted that he does not challenge the divorce, the child custody or the transfer of their home and certain personal property to the wife as alimony in gross.
The husband's first contention is that the order that he pay support of $60 per child per week, plus certain medical and dental expenses, ignores his complete inability to pay and is therefore excessive.
The legal principles applicable to such situations are reflected at considerable length in Annot., 1 A.L.R.3d 324-376 (1965). At page 331 it concludes that:
"The basic function of a child support award is to assure that a father provides adequately for a child who is not living with him, and the amount of the award depends exclusively on the child's need for ...