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Schwartz v. Schwartz





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


In his appeal of a divorce granted to plaintiff based upon the grounds of mental cruelty, defendant urges on review error by the trial court in the award of alimony in gross, child support, and attorney's fees. The following issues are presented for review: (i) whether the trial court improperly admitted documentary evidence concerning the contents and provisions for distribution of defendant's deceased father's estate, and improperly relied on such evidence in making its findings; and (ii) whether the trial court's award of alimony in gross, child support, and attorney's fees was based on speculative evidence as to future income, and was therefore improper and against the manifest weight of the evidence.

Only those facts necessary to the limited issues on review will be stated. The parties married in Chicago in September of 1967 and lived together until May 24, 1973. When first married, defendant was working for Dunkin's Donuts of America and plaintiff was director of public relations for Patricia Stevens. Defendant asserted he was earning $100 a week at that time and plaintiff $150 a week, whereas plaintiff contended defendant was at that time earning $150 a week and she was earning $130 a week.

About six months after they were married, they moved to Florida to be with defendant's father who had become ill. Plaintiff testified they had approximately $3,000 to $4,000 between them when they moved to Florida. Although they lived there between four to six months, neither party worked. Shortly thereafter, defendant's father died and defendant received about $125,000 from a life insurance policy. About four to five months after the death, plaintiff's father came to Florida and persuaded them to return to Chicago and offered to sell defendant a store. Defendant purchased the store, Recreation Specialties, Inc., for $11,000, taken out of the $125,000. Defendant sold pool tables and related products at retail in this store from 1969 to April 30, 1974, at which time he sold the business to Norton Investments for between $4,500 and $5,000.

In addition to purchasing the store out of the insurance policy proceeds, the parties went to Europe three times, they bought several automobiles, defendant gave plaintiff a $1,000 a month allowance, and he used $8,000 as a down payment on a townhouse into which they moved shortly after returning from Florida, and he also used $15,000 to furnish the townhouse and $4,000 to buy a mink coat for plaintiff. The policy proceeds were also utilized, in combination with the money received from selling Recreation Specialties, to make the temporary alimony and child support payments of $1,000 a month ordered prior to trial by the circuit court. Defendant testified that at the time of the trial, nothing remained of the $125,000.

The evidence indicated that, as the $125,000 was almost gone, plaintiff became angry and suggested defendant borrow money from his mother temporarily. Defendant also asserted plaintiff knew the income on which they were living was coming from the policy proceeds rather than from the meager profits of the business. Defendant also testified plaintiff had only earned minimal income during the marriage in her infrequent job as a lecturer for Weight Watchers. Plaintiff asserted she had no idea what defendant earned in Recreation Specialties but did know defendant gave her everything he made. She agreed that she worked "sporadically" for about a year and a half at Weight Watchers, and admitted she contributed no money toward the townhouse.

Defendant testified he was, at the time of trial, living in Florida and employed as a sales representative at Jordan Industries, Inc., from which job he netted, after travel expenses, $187.20 a month. He also confirmed that he received $2,163 a year in interest income and $200 a month from Aetna Life Insurance Co. All of this income was, he asserted, subject to income tax.

Defendant's accountant testified as to Federal corporate income tax returns for Recreation Specialties, plaintiff's and defendant's joint Federal income tax returns for 1969 to 1972, and defendant's individual Federal income tax return for 1973. These returns were also admitted as exhibits. This testimony indicated that for the following years the gross income from all sources for both parties was:

Year Gross Income

1969 $ 9,996 1970 5,446 1971 5,931 1972 9,657 1973 10,208

Plaintiff alleged she had no outside income at the time of the trial and was prevented from working because of her small daughter at home. She contended her monthly expenses were as follows:

mortgage on townhouse $298 ($26,000 remaining at time of trial) maintenance for townhouse 46 live-in helper 120 telephone 40 to 45 electricty and gas 40 drugs 50 cleaning woman 152 food 300 Such expenses, exclusive of car insurance of $300 a year, total $1,046 to $1,051 a month.

In the pleadings, defendant admitted having acquired assets during the course of the marriage including trusts totaling $200,000. Prior to trial, plaintiff also filed a motion to produce documents including all original trust agreements of which defendant was a beneficiary or in which he had a beneficial interest. When defendant was being examined as a section 60 (Ill. Rev. Stat. 1973, ch. 110, par. 60) witness, he asserted his father's estate had been in probate for about four years and that he believed it was no longer being probated. He also contended he knew one of the trusts created by that estate, of which he was beneficiary, was worth about $50,000, and stated he believed he was to receive one-quarter of a second trust worth $200,000 at age 35, another quarter at age 40, another at age 45, and another at age 50. In the course of this examination, defendant's counsel objected to questions regarding any estate, absent the essential documents relevant to that estate. Defendant was born on June 4, 1941, and would be 35 on June 4, 1976.

After defendant had presented his case, plaintiff asserted in rebuttal testimony she had received from defendant's sister an inventory of defendant's father's estate, defendant's father's last will and testament and a petition for construction of the will, all of which she offered for introduction into evidence. She contended she had told defendant she had received the documents and that defendant had told her to leave him alone. Defendant's counsel objected to the introduction of these ...

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