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Lewanski v. Lewanski





APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. BALES, Judge, presiding.


Defendant appeals from a judgment granting a divorce to plaintiff, contending that the trial court abused its discretion when it continued in effect a temporary support order which was excessive in light of his earnings. He also contends that the trial court erred when it (a) awarded certain items of property to plaintiff in addition to periodic alimony, (b) awarded fees to plaintiff's attorney which were excessive in light of defendant's ability to pay, and (c) entered orders after defendant had filed his notice of appeal.

The following facts are pertinent to the disposition of this appeal.

On September 17, 1975, plaintiff filed a complaint which prayed, inter alia, that the bonds of matrimony existing between her and defendant be forever dissolved; that she be awarded the sole custody of the parties' three minor children; that defendant be required to pay to her reasonable sums for alimony, child support and attorney's fees; that defendant be enjoined from harassing plaintiff and from selling or otherwise disposing of the parties' coin collection; and that the court award to plaintiff a 1973 Pontiac automobile and all of the furniture in the marital apartment. Defendant's answer prayed that action be dismissed. On September 26, 1975, the court entered an order pursuant to an agreement between the parties which required that defendant pay to plaintiff 50 per cent of his earnings with a minimum of $150 per week for the temporary support and maintenance of plaintiff and the minor children; that defendant have reasonable visitation rights with the minor children; and that he pay to the law firm of Blumenthal and Schwartz $350 in temporary attorney's fees. The court subsequently allowed an additional $250 in plaintiff's attorney's fees, and denied each of several petitions filed by defendant asking that the support payments ordered by the court be reduced. The cause was assigned to trial on July 1, 1976, at which time the following evidence pertinent to this appeal was adduced.

Plaintiff, on her own behalf, testified that three children ranging in age from one to five years had been born of her marriage to defendant. Prior to their marriage she had earned approximately $10,000, $7,000 of which was used to buy the furniture for their apartment, while the other $3,000 was contributed to the purchase of dishes, linens and other family items. She currently is without funds or assets. She could not work because she has to stay at home and care for her minor children. She and her children moved from the apartment in Chicago to one in Palos Hills. Total living expenses for her and her children are approximately $812 a month. Since May 1973 she had been the sole driver of the 1973 Pontiac Le Mans automobile. She was paying for the insurance and maintenance of this car and needed it for the transportation of herself and her children. The car had recently been towed away from her apartment. Defendant had not made all of the payments required by the support order which provided her with a minimum of $150 per week, and he was currently $350 in arrears under the order. During their marriage, she and defendant acquired a coin collection which she estimated to be worth approximately $2,500. She acknowledged that the rent for her apartment in Palos Hills was higher than the average rent in the neighborhood she and defendant had lived in, and that the public transportation was not as good, but explained that her new neighborhood was a better place for her children. She also acknowledged that defendant was the sole supporter of the family during their marriage, and that he supplied all of the funds used to purchase the coin collection.

Defendant, called under section 60, acknowledged that in September 1975, he agreed to temporarily pay plaintiff $150 per week, but stated that he told her soon afterward that he could only pay $100 per week. He had delivered the Pontiac Le Mans to his wife under court order. He had been making payments on the car since its purchase in 1973, and still owed approximately $1,850 on it, but at the end of 1975 he had terminated the arrangement he had with his credit union whereby payments on the car were deducted from his weekly paycheck. He denied knowing that the car was going to be repossessed.

On direct examination on his own behalf, defendant testified that in both 1974 and 1975 he earned approximately $19,000, but in 1976 as of June 19 he had earned approximately $6,200 with net weekly earnings of $187. He estimated that he would earn approximately $15,000 in 1976 and explained that the decrease was due to a generally poorer economy. His monthly living expenses are approximately $320, which does not include a $20 a month expenditure for life insurance. He valued the coin collection to be worth no more than $100.

On cross-examination he denied telling his wife that he would make sure that he didn't work so that he would not have the money to pay for her support, or that the coin collection was worth $2,500.

Plaintiff, on rebuttal, testified that her husband told her that the coin collection was worth approximately $2,500.

On July 7, 1976, notice of a hearing on plaintiff's petition for fees, which was to be held on the following morning, was telephoned by the clerk of the court to the attorneys for both parties, but was not received by defendant's counsel. Attempts to locate defendant's counsel on the morning of July 8, 1976, also failed, and the hearing was held ex parte. Arthur F. Schwartz, attorney for plaintiff, testified that the time sheets he kept correctly revealed that he had spent 103 hours working on this case, and that a fair and reasonable fee for the work performed, in addition to the retainer he had received from plaintiff and the amount previously awarded by the court, would be $6,000.

On August 16, 1976, a judgment of divorce was entered which, inter alia, found that defendant had been guilty of extreme and repeated physical cruelty to plaintiff during their marriage, and ordered that the marriage be dissolved. The judgment awarded sole custody of the three minor children to plaintiff, and ordered defendant to pay to plaintiff $30 per week for alimony and $120 per week for child support. It also awarded the parties' furniture and the 1973 Pontiac Le Mans automobile to plaintiff, with directions that defendant return the car to her and be solely responsible for the outstanding payments due on it. The judgment further directed that the coin collection be equally divided between the parties, and that defendant pay to Blumenthal and Schwartz an additional $6,000 as plaintiff's attorney's fees. Defendant filed a notice of appeal from this judgment on August 24, 1976. On September 29, 1976, the court entered an order requiring defendant to pay certain percentages of his income to plaintiff for her and the children's support during the appeal, and to the law firm of Blumenthal and Schwartz for attorney's fees of $1,000 in connection with the appeal.


• 1 Defendant first contends that the $150 a week awarded by the court as alimony and child support is excessive. Defendant admits that at the commencement of the divorce proceedings he offered to pay plaintiff $150 a week, and that an agreed order for temporary support citing that amount as the minimum support was therefore issued. He contends, however, that the continuation of $150 as a permanent figure is excessive in light of his earnings. The amount of alimony and child support which should be allowed in a divorce case must be determined by accommodating, insofar as possible, the needs of the parties and the children with the available means of the parties, due regard being given to their stations in life. (Everett v. Everett (1962), 25 Ill.2d 342, 185 N.E.2d 201.) Defendant testified at trial that he earned approximately $19,000 in 1974 and in 1975 and estimated that he would earn only $15,000 in 1976. Defendant refers in his brief, however, to a post-trial petition he filed on February 3, 1977, which revealed that his 1976 gross income was $16,800 and that his net income was $229 a week. He also testified at trial that his payments for rent, utilities, food, laundry and dry-cleaning totaled approximately $320 a month. While payment of these expenses under defendant's reduced 1976 net earnings would apparently consume the entire portion of the income remaining to him after his payments under the court's order, plaintiff's testimony at trial indicated she currently had no incoming funds of her own, and that the total living expenses for her and the three minor children would substantially exceed the $150 a week ordered by the court. We also note that there was some dispute before the trial court as to whether the reduction in defendant's earnings was the result of a generally poorer economy, or was due to defendant's hostility and reluctance to pay the amounts of alimony and child support which had been ordered. The determination of those amounts lies within the sound discretion of the trial court which heard and considered the evidence, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. (Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792.) After reviewing the pertinent evidence adduced at trial, we cannot say that the trial court's award to plaintiff of $150 a week for alimony and child support was contrary to the manifest weight of the evidence or an abuse of the court's discretion.

• 2 Defendant further argues, however, that plaintiff changed her station in life when she moved from the marital apartment to a new apartment and neighborhood where the rent is substantially higher. Plaintiff admitted at trial that the rent she now paid was higher than the average rent in her former neighborhood, but explained that the new neighborhood was a better place to raise her children. Defendant has cited no case wherein a move to a more expensive apartment, by itself, was held to be a substantial change in the party's station in life. In determining the propriety of an award for alimony and child support, no single factor is controlling, and each case depends on all of its individual facts. (Scruggs v. Scruggs (1974), 23 Ill. App.3d 1004, 320 N.E.2d 406.) Plaintiff's move was reasonably designed to meet her needs and the needs of her children, and does not appear to have been calculated to raise her station in life to any significant degree. Further, the fact that the trial court, ...

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