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Brandis v. Brandis

OPINION FILED AUGUST 8, 1977.

DONNA M. BRANDIS, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

DAVID J. BRANDIS, D.D.S., DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. CHARLES J. RYAN, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a divorce property settlement and alimony decree entered in Sangamon County. Plaintiff Donna Brandis commenced divorce proceedings against defendant David Brandis on November 12, 1975. They had been married since September 1962, and had no children. Following an uncontested bench trial, plaintiff was granted a divorce on extreme and repeated mental cruelty grounds. In a separate hearing on the property aspects of the divorce, the trial court awarded plaintiff $79,200 alimony in gross and $2,000 in attorney fees. The decree also allocated other assets in a manner not in dispute herein. Defendant filed a notice of appeal from the amount of the alimony and attorney fee awards. Plaintiff filed a notice of appeal from the amount of the alimony award.

Defendant contends that the award of alimony was improper or, alternatively, that an alimony in gross award was inappropriate in this case, and that the award of attorney fees was in error. Plaintiff counterappeals, contending that $108,000 would be a more appropriate alimony in gross award, or, alternatively, that the trial court's award should be sustained.

At the property settlement and alimony determination hearing commencing on May 18, 1976, it was established that defendant was 36 years old and plaintiff was 35 years old. Defendant testified that when he married plaintiff, a nurse, in 1962, he was 22 years old and in the aircraft business with his two brothers. In 1964 he decided to return to school. He attended college for six years and ultimately graduated from dental school in 1970. To help finance his education, defendant sold some of his assets, including an interest in an airplane. While in school, defendant's expenses were met by his occasional part-time work, by a partial dental school scholarship, by bank loans for tuition totaling $7,500, by stock investments, and by plaintiff who worked full-time as a nurse. In December 1970, defendant opened a dental office in Springfield, Illinois, and has remained there in the practice of dentistry. Plaintiff worked full-time as defendant's office secretary during his first half-year in Springfield.

In 1973, plaintiff and defendant purchased a 3 1/2-acre wooded lot and, with substantial mortgage financing, built a home thereupon. The house was subsequently sold, and each party to the marriage received $13,000, representing one-half of the equity accumulated in the house. Since 1973, defendant has bought and sold interests in three aircrafts. He has also invested in an oil well, subsequently found to be dry, oil leases worth $1,500, and, through substantial financing, oil drilling equipment worth approximately $22,000. At the time of the alimony hearing, defendant had voluntarily assumed the parties' joint obligations totaling approximately $30,000, and he acknowledged his ability to pay reasonable support. He had also made tuition payments for his wife to attend college.

Plaintiff testified that, prior to defendant's return to school in 1964, they had agreed that if she would work and support defendant through school, he would take care of her financial needs and provide her a lifestyle commensurate with his professional status when he became a dentist and that she would not have to work thereafter. Plaintiff further testified that in 1973, at defendant's request, she returned to work as a nurse in order to make money. At the time of the alimony hearing, plaintiff was employed by the Illinois Office of Education and earned a gross salary of $1,440 a month. Plaintiff testified that during the last full year of the marriage, 1975, her expenses averaged around $3,300 a month and that her present needs remain at that level. She acknowledged receipt of $13,000, her half share in the equity in the house. From this sum she still has approximately $8,500, the rest having been spent on college tuition, living expenses and attorney fees.

The trial court explained the award of alimony in gross in these words:

"* * * in view of the history of this marriage and considering the obvious intelligence, beauty and age and character of the Plaintiff, * * * she should be awarded alimony in a substantial amount and payable in such a manner that she would not be penalized by a loss of any part of this alimony in the event of a remarriage by her even in the near future."

The trial court stated its desire to provide plaintiff with the same economic comfort and security as she enjoyed during her marriage to defendant. The trial court also noted defendant's status as a practicing dentist earning substantial income and well able to provide for the plaintiff's support. The trial court ordered defendant to pay alimony in gross in an amount of $79,200, payable at the rate of $600 a month for 11 years. In addition, the trial court ordered defendant to obtain life insurance to secure the alimony amount balance, to legally assume the joint debts of the marriage, and to pay $2,000 of plaintiff's legal expenses.

Defendant contends that the award of alimony in gross was improper under the circumstances. Plaintiff disagrees, contending that the alimony in gross award was appropriate, but, in addition, asks that the award be increased because of her equitable claim that she is entitled to a share of defendant's assets. This claim is premised on the alleged agreement made between the parties prior to defendant's return to college.

The granting alimony in gross pursuant to a divorce decree is provided for by sections 17 and 18 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 18, 19) and not by general equitable powers. (Hall v. Hall (1976), 43 Ill. App.3d 97, 356 N.E.2d 1156; Debrey v. Debrey (1971), 132 Ill. App.2d 1072, 270 N.E.2d 43.) Section 17 empowers a trial court to compel the transfer of property upon the requesting spouse's allegation and proof of an equitable interest or ownership in the property claimed. Section 18 provides in pertinent part:

"When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, * * * as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just * * *. 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." Ill. Rev. Stat. 1975, ch. 40, par. 19.

In Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792, our supreme court noted that the awarding of alimony is a matter reposing in the sound discretion of the trial court and that discretion will not be disturbed on review unless it amounts to an abuse of discretion or is contrary to the manifest weight of the evidence. In Hall v. Hall (1974), 18 Ill. App.3d 583, 310 N.E.2d 186, further appeal after remandment, 43 Ill. App.3d 97, 356 N.E.2d 1156, this court observed that the usual and proper procedure is to award alimony in periodic payments so that the trial court can exercise a continuing supervision over the respective needs and abilities of the parties. The court then noted that alimony in gross would be appropriate in those circumstances where periodic payments would not be feasible as where a paying spouse does not pay his bills or will not work, or is regularly intoxicated and refuses to work, or where the paying spouse's occupation is so hazardous that he might not be able to continue to produce income. In Green v. Green (1976), 41 Ill. App.3d 154, 354 N.E.2d 661, the court found even further justifications for awarding alimony in gross including a paying spouse's irregular income, the speculative nature of the spouse's work, and severe bitterness of feeling between the parties arising especially in those circumstances where the parties own property jointly. Consequently, the overriding intent in awarding alimony in gross is to buoy the recipient spouse's financial security by minimizing the risks inherent in a periodic alimony award. See Neumark, Property Rights in Divorce, 62 Ill. B.J. 242 (1974).

• 1 From a review of the record, we conclude that the provisions for alimony here should have been in periodic form. There is no sufficient indication that periodic payments would be inappropriate or undesirable. Reasonable inferences from the evidence establishes that defendant is a professional man who works hard and pays his bills. There is no showing that defendant is regularly intoxicated or that his occupation is so hazardous that his income is jeopardized or that his future income is speculative. Although there is some evidence of bitterness between the parties, it does not appear to be significant and, since there is no continued joint ownership of property, it can reasonably be expected to minimize. (See Persico v. Persico (1951), 409 Ill. 608, 100 N.E.2d 904.) Furthermore, plaintiff has already received $13,000 as her part of the equity in ...


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