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Green v. Green

OPINION FILED APRIL 15, 1976.

IRMA GREEN, PLAINTIFF-APPELLEE,

v.

IRVING GREEN, DEFENDANT-APPELLANT.



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

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

Mr. PRESIDING JUSTICE MEJDA delivered the opinion of the court:

Plaintiff, Irma Green, commenced proceedings for divorce against defendant, Irving Green. Following a lengthy trial without a jury, a judgment for divorce was entered in favor of plaintiff which included an award of alimony in gross "in the aggregate sum of $678,000" comprised of nine specified items of property. Defendant was ordered to pay plaintiff attorney fees of $50,000 plus costs and expenses, in addition to a prior allowance of $7,500 for temporary fees. Defendant filed a notice of appeal from the judgment. The trial court then entered an order awarding plaintiff $2,300 per month as temporary alimony pending the appeal and a further order for attorney fees of $7,000 plus costs to defend the appeal. Defendant filed separate appeals from the subsequent orders. The appeals are consolidated in this court.

On appeal defendant contends that the trial court (1) was without jurisdiction of the subject matter in that plaintiff was not a resident of the County of Cook and State of Illinois as required by statute; (2) erred in awarding alimony in gross, and alternatively, that the award is excessive; (3) erred in awarding alimony pending appeal; (4) erred in awarding attorney fees in the trial court, and alternatively, in an excessive amount; and (5) erred in awarding attorney fees to defend the appeal, and alternatively, in an excessive amount.

Plaintiff and defendant were married on August 18, 1936, and separated on September 10, 1968. Two children were born of the marriage, each of whom has attained majority and is emancipated. Prior to separation the parties maintained several residences. They jointly owned a home in Long Grove, Lake County, Illinois, while maintaining an apartment in Florida and also leasing a furnished hotel apartment at the Astor Towers in Chicago. They lived in the Long Grove home for several years until early 1968 when the home was vacated and later sold. During the summer of 1968 they lived together at the Astor Towers apartment until defendant left on September 10, 1968. That apartment was rented on a monthly basis and rent was paid only for the months of occupancy.

Defendant testified that plaintiff had an apartment in Florida where he occasionally lived with her prior to the separation. Plaintiff testified that since the separation she has lived at the Astor Towers apartment for six or seven months during each year of 1969 and 1970, never having a written lease, and lived in her Florida condominium during the winter months. She testified that when they vacated the Lake County home some of the furniture was put in storage, some given to their daughter, and the remainder used at the Florida apartment. She alleged in her complaint and testified at trial that her permanent address was the Astor Towers Hotel and that she was a resident of Cook County, State of Illinois, for more than one year before filing the complaint for divorce on February 3, 1970. She further testified that she retained her driver's license and voter's registration at the Lake County address where she last voted about seven years before. No evidence was introduced that she ever changed her voter's registration or driver's license to any other place or State.

The parties testified that prior to the purchase of the Florida condominium by plaintiff they had lived in an apartment in Florida for six years during the winter seasons.

Prior to and during 1969, defendant earned $70,000 per year as president of Mercury Record Productions, Inc., and also received interest, dividends and income from various real estate and other investments, many of which were fractional interests held with different persons and groups. After the separation in 1968, defendant continued to pay all of plaintiff's bills and unlimited charge accounts. At the end of 1969 defendant severed his employment with Mercury and his annual income therefrom was discontinued. He then notified plaintiff of the termination and that he was closing all of the charge accounts. He then voluntarily commenced paying plaintiff $1,200 per month to cover her expenses, which payments were continued throughout the proceedings.

Plaintiff testified that during the marriage she had a Cadillac automobile, unlimited charge accounts, a monthly cash allowance, and regularly visited a daughter in New York. The couple had vacationed frequently at home and abroad and enjoyed many social activities. Plaintiff testified that she had no independent income; that $1,200 a month was insufficient and that she would require $3,000 per month net after taxes to meet her average monthly expenses. She enumerated those expenses to include: $600 rent for the Astor Towers apartment, plus $45 garage, $100 utilities, $120 maid service; $200 food; $95 automobile maintenance and insurance; $550 clothing; $150 grooming; $100 doctor; $50 drugs; $100 golf and social clubs; $600 entertainment; $50 gifts; $30 charitable contributions; $20 newspapers and magazines; $350 vacations; $100 condominium maintenance fees; and unpaid bills of $5,780.

Defendant particularly challenged the rental and maid service at the Astor Towers apartment which were claimed as regular monthly expenses. He contended that such items should be limited only to the months of occupancy in each year.

Each party presented testimony of witnesses as to the purported value of the various assets and properties owned by defendant which included some 21 items. The valuations were sharply controverted over a wide range, with a great disparity in value as to each item and in the aggregate. Plaintiff contends that the assets had a market value of approximately $3,000,000; defendant valued the same assets at approximately $1,000,000. The court found the fair market value to be $1,900,000, and based thereon awarded alimony in gross in the aggregate amount of $678,000, comprised of nine items of real and personal assets specifically described in the judgment for divorce.

Plaintiff's attorney testified that he spent 378 hours of office time and 54 hours of court time and would require 15 hours of office time and 4 hours of court time to conclude the proceedings. Based thereon, he requested a fee of $75,000. The court orally found the fair and reasonable fee would be $45,000, but in the judgment for divorce ordered defendant to pay plaintiff attorney fees of $50,000 plus court costs, which was expressly in addition to the temporary fees of $7,500 previously allowed. Following defendant's appeal from the judgment for divorce, plaintiff petitioned for temporary alimony pending appeal and was granted $2,300 per month for alimony pending appeal and was awarded attorney fees of $7,000 plus costs to defend the appeal.

I.

• 1, 2 Defendant initially contends that plaintiff failed to satisfy the tandem prerequisites as to residence required by sections 2 and 5 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, pars. 3 and 6). He argues that the evidence shows plaintiff's lack of permanency in Illinois and the lack of her intent to remain in Illinois on any permanent basis. Section 2 (par. 3) of the Divorce Act requires that a party seeking a divorce be a resident of Illinois for one year prior to filing the complaint, and section 5 (par. 6) requires that one of the parties be a resident of the county in which action is brought. "As used in the Divorce Act, `residence' thus denotes `permanent abode.' It is the place one considers as `home.' Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home. [Citations.]" (Garrison v. Garrison (1969), 107 Ill. App.2d 311, 314, 246 N.E.2d 9.) Whether or not a party has abandoned one residence in favor of another in a different jurisdiction is a question of fact. (Cohn v. Cohn (1945), 327 Ill. App. 22, 63 N.E.2d 618.) As stated in the recent opinion in Davis v. Davis (1973), 9 Ill. App.3d 922, 926, 293 N.E.2d 399, "Affirmative acts of abandonment of the Illinois residence must be proved to sustain abandonment. Temporary absence, admittedly lengthy in this case, does not equate with abandonment."

• 3 The record contains sufficient circumstances and evidence to support plaintiff's allegations in her complaint that she resided in Cook County and the State of Illinois for more than one year. The parties were married and lifelong residents of Illinois. At the time of separation they lived at the Astor Towers apartment in Chicago. Thereafter, plaintiff occupied the same apartment for six or seven months of each year and designated it as her permanent address. This was sufficient to indicate her intent to establish the apartment as her permanent abode and address. The winter sojourns in Florida were seasonal and temporary in nature; in fact, a continuation of the pattern established by the parties over many previous years. The ownership of a condominium in Florida as opposed to the month-to-month rental on a seasonal basis of a furnished apartment in Chicago does not preclude a determination of an Illinois residence. There is no evidence of an abandonment by plaintiff of her Chicago residence, nor any intent to make Florida her permanent home. Defendant's reliance on DeKlade v. DeKlade (1923), 231 Ill. App. 50, is misplaced. There the plaintiff wife was a traveling theater performer and failed to establish the necessary residence requirement by two- or three-week stays at a Chicago hotel which stays were incident to her performances in the city. The facts are clearly distinguishable from the instant case. The trial court's finding of plaintiff's residence in Cook County, Illinois, is not against the manifest weight of the evidence. Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792; and Davis v. Davis.

II.

Defendant next contends that the trial court abused its discretion in awarding plaintiff alimony in gross in lieu of periodic payments, and alternatively, that the award is excessive and an inequitable division of the property, and as such, visits punitive damages upon the defendant. Plaintiff argues that the trial court was persuaded that periodic alimony would be unfit and lead to further litigation and that therefore, the trial court acted within the scope of its discretion in opting for an award of alimony in gross.

The judgment for divorce included findings that at the time of marriage neither party was possessed of any significant or substantial assets, but that defendant prospered during the course of the marriage; that the parties enjoyed a high standard of living; that plaintiff received on a voluntary regular basis $1,200 a month and that she now requires $3,000 per month net ...


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