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Sullivan v. Sullivan

OPINION FILED JANUARY 30, 1979.

JUNE MARIE SULLIVAN, PLAINTIFF-APPELLANT,

v.

DARRELL GENE SULLIVAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Jackson County; the Hon. D.D. BIGLER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff June Marie Sullivan appeals to this court, challenging the propriety of numerous provisions contained in a divorce decree entered in the circuit court of Jackson County. Among other things, she claims that the circuit court erred in denying her alimony and attorneys' fees, that the award of child support in the amount of $100 a month was inadequate and that certain portions of the provisions dealing with the marital residence were improper.

Mrs. Sullivan filed a complaint for divorce on September 13, 1976. A divorce decree was subsequently entered on January 20, 1977, which made dispositions of the various items of the parties' property and findings with respect to child custody, support and alimony. Purportedly, these dispositions and findings were made in accordance with an agreement between the parties; however, on April 13, 1977, the circuit court vacated this decree finding that the parties had not in fact reached a complete agreement which was sufficient to support the decree.

A new hearing on Mrs. Sullivan's complaint was conducted on September 23, 1977, and on September 30, 1977, the circuit court entered a new decree granting her a divorce on mental cruelty grounds. The court's decree awarded the custody of the parties' minor child, Daren Kay Sullivan, to Mrs. Sullivan. In addition to the denials of alimony and attorneys' fees and the award of $100-a-month child support, the decree made the following orders which Mrs. Sullivan also attacks in this court: (1) that Mrs. Sullivan hold her husband, Darrell Gene Sullivan, harmless for any debt that she incurred on account of the purchase of a 1970 Chevrolet automobile; and (2) that she hold him harmless for any bills relating to medical treatment or hospital care provided to her during the course of the marriage which were unpaid at the time of the divorce decree's entry.

With respect to the marital residence, the decree made the following disposition. Possession of the residence was awarded to Mrs. Sullivan and Daren; however, under the scheme of the decree their possession is limited in duration. Upon the first occurrence of any of three events, their possession is to be terminated and a sale of the residence effected. The three triggering events are the death of Mrs. Sullivan, her remarriage or Daren's attainment of 18 years of age. During Mrs. Sullivan's and Daren's possession, it is Mr. Sullivan's obligation to pay all mortgage payments, insurance and taxes due on the residence and one-half of all "major" repairs made on the premises. However, upon the sale of the house, Mr. Sullivan is to receive a return of all sums of money expended by him under the above terms of the decree before an equal division of the net proceeds of the sale is made between the parties.

Mrs. Sullivan contends that the court erred both in ordering a sale of the house and in providing for a full return of all payments made by Darrell Sullivan during her occupancy of the house.

The first issue we will address is whether the court erred in denying Mrs. Sullivan alimony.

• 1 The law with respect to alimony under the Divorce Act (Ill. Rev. Stat. 1977, ch. 40, par. 1 et seq.) is well established. The purpose of an alimony award is to furnish support to the wife or to contribute to her partial support. (Stotlar v. Stotlar (1977), 50 Ill. App.3d 790, 365 N.E.2d 1097; Gilmore v. Gilmore (1975), 28 Ill. App.3d 36, 328 N.E.2d 562.) The proper measure of alimony is the need of the wife considered in connection with the husband's ability to pay. (Stotlar v. Stotlar; Scruggs v. Scruggs (1974), 23 Ill. App.3d 1004, 320 N.E.2d 406.) No single criterion is controlling and each case will depend on its own individual facts. (Scruggs v. Scruggs.) The amount of the award lies within the sound discretion of the trial court and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Gilmore v. Gilmore; Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792.

• 2 After considering the evidence in this case, we find that it was a gross abuse of discretion to deny plaintiff alimony and that such denial was contrary to the manifest weight of the evidence.

The need of Mrs. Sullivan was clearly established in the circuit court. At the time of the hearing, Mrs. Sullivan's monthly take-home pay from her employment with the office of the circuit clerk of Jackson County was $348. This money was the only source of income from which she could attempt to meet the needs of herself and the parties' 14-year-old daughter, Daren. It was Mrs. Sullivan's unrebutted testimony that it would take between $600 and $700 each month to support them and that this figure would not allow them to save any money or pay off any outstanding debts, which from her testimony appear to exceed $3000.

Despite this showing of Mrs. Sullivan's financial inadequacy to provide the necessities for her daughter and herself, the court chose not to award her any alimony. In view of the fact that Darrell Sullivan appeared well able to pay alimony, this was clearly error.

Darrell Sullivan is the plant manager of Cal Crest Outerwear in Murphysboro, Illinois. He has held that position for 11 years. At the time of the hearing, his monthly take-home pay was $1223, and his gross incomes for 1976 and 1975 respectively were $21,350 and $20,470. He testified as to his monthly bills. When the bills which need not be recurring and the payment on the marital house are excluded, his monthly expenses at the time of trial were approximately $392. This amount should now be reduced by $72 since by his testimony a monthly obligation in that amount to a credit company would have come to an end prior to the present time. He is well able to contribute to his ex-wife's partial support.

We, however, will not set an alimony award here but rather will remand this cause to the circuit court for further proceedings so that it may determine an appropriate award of alimony. We choose to do this for two reasons. First, the circumstances of the parties may have significantly changed in the time which has intervened since the original hearing. Second, there is a serious question presented as to what form of alimony would be best suited to the facts of this case. This question can best be resolved in the circuit court.

• 3 Although in Illinois an award of periodic alimony is judicially preferred to alimony in gross because the court retains jurisdiction of the cause to make modifying orders as they become appropriate (Musgrave v. Musgrave (1976), 38 Ill. App.3d 532, 347 N.E.2d 831; Schwarz v. Schwarz (1963), 27 Ill.2d 140, 188 N.E.2d 673; Honey v. Honey (1970), 120 Ill. App.2d 102, 256 N.E.2d 121), an award of alimony in gross is proper where the circumstances indicate that ...


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