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Hogan v. Hogan

OPINION FILED MARCH 29, 1978.

HARRIET W. HOGAN, PLAINTIFF-APPELLEE,

v.

WILLIAM F. HOGAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BERNARD WOLFE, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

The parties to this action were divorced in 1976. On January 10, 1977, a supplemental judgment was entered awarding plaintiff permanent alimony and child support, granting her special equities in all real estate owned by defendant, ordering defendant to maintain his life insurance policies with plaintiff as named beneficiary, ordering defendant to convey to plaintiff his one-half interest in the jointly owned marital home subject to defendant's equitable lien, and awarding plaintiff attorney's fees and costs. Defendant appeals.

At the time the parties were married in 1951, plaintiff was employed as a typist and defendant was serving in the army. During defendant's tour of duty, plaintiff accumulated approximately $6,000 from their joint earnings which was later used, in large part, to furnish their first apartment. When defendant commenced civilian employment in 1954, plaintiff quit and has not been employed since. Defendant is employed by Medidentic, Inc., a firm in the business of providing management consultation for the medical and dental professions. He became vice-president of the firm in 1965.

The parties have three children. At the time of the divorce, two children had attained their majority and were attending college. Defendants pays approximately $700 per month for their education. The third child, aged 15, lives with plaintiff in the marital home.

From 1954 to August 1, 1974, when the parties separated, almost all defendant's earnings were deposited in a joint checking account with plaintiff. Plaintiff contributed no money to the account. These funds covered all expenses and were used to purchase several parcels of real estate. Title to the real estate was held as follows: the parties owned the marital home in joint tenancy; plaintiff held title to two condominiums in Florida, one individually and the other in equal partnership with two of defendant's business associates; defendant held title to two condominiums in Florida, one individually and the other in partnership with a Dr. Keverian; he also held title to three farms in Wisconsin in partnership with a Charles Martin. Plaintiff sold one of her condominiums during the divorce proceedings and, after paying fees and outstanding liens, received approximately $2,300. Defendant sold one of the farms and netted $19,673. In the trial court, defendant expressly renounced any claims he might have to the two condominiums which were in plaintiff's name.

At the time of trial, defendant earned approximately $51,000 per year and had a net expendable income of $39,000. He had $1,500 in a checking account, $1,000 in stocks, and had no savings. He owned an estimated 25% of the common stock of Medidentic which he valued at $150,000. He maintained three life insurance policies on his life totaling $59,000. In the trial court, defendant indicated that he was in the process of changing the beneficiary on these policies from plaintiff to the children.

In the course of the proceedings, plaintiff inherited $12,288 from an uncle. At the time of the entry of the decree she had cash holdings of $13,729 and stocks worth $13,000. Plaintiff testified that basic monthly living expenses for herself and her minor son amounted to approximately $630.

On the basis of the foregoing evidence, the trial court awarded plaintiff $750 per month permanent alimony and $300 per month child support. The court further granted plaintiff special equities in and declared her one-half owner of all real property owned by defendant individually or in partnership with others. Similarly, defendant was granted a one-half interest in the two parcels held by plaintiff.

The trial court found that each party was a one-half owner of the marital home which was valued at $57,000 and encumbered with a $17,000 mortgage. Defendant was ordered to convey his one-half interest to plaintiff, subject to a $20,000 equity. Defendant's equity was reduced by $12,600, representing amounts owing plaintiff from the proceeds on the sale of the farm, one-half of a joint debt assumed by plaintiff, and a portion of the liens paid by plaintiff upon the sale of the condominium. Defendant's equitable lien, therefore, amounted to $7,400.

Defendant was ordered to keep his life insurance policies in full force and effect "naming plaintiff as irrevocable beneficiary until her death, remarriage or his obligation for permanent alimony support is terminated." Finally defendant was ordered to pay $8,233.86 in attorney's fees at the rate of $300 per month.

Defendant's initial contention that the $750 per month alimony awarded to plaintiff is excessive merits scant attention. The amount of an award of alimony rests primarily in the discretion of the trial court and its findings will not be set aside unless they are contrary to the manifest weight of the evidence. (Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792.) The proper measure of an alimony award is the need of the wife and the ability of the husband to pay. (Gilmore v. Gilmore (1975), 28 Ill. App.3d 36, 328 N.E.2d 562.) The evidence, as recited above, amply supports the amount of alimony awarded.

Defendant next contends that the trial court erred in granting plaintiff special equities in all real estate owned by him. The conveyance of property held by one spouse in which the other asserts an interest is governed by section 17 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 18), which provides:

"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."

Defendant argues that since these acquisitions were made with funds from the joint family checking account, comprised of defendant's earnings, the court erred in awarding plaintiff a ...


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