APPEAL from the Circuit Court of Du Page County; the Hon.
KEITH D. LEWIS and the Hon. CHARLES R. NORGLE, Judges, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
These two appeals have been consolidated for review by this court. In 78-322 (hereafter the dissolution suit) Samuel Schuppe (Samuel) appeals from a decree rendered by the circuit court of Du Page County which dissolved the marriage of Barbara and Samuel Schuppe. The portions of the decree in dispute concern the support and division of property provisions. In 78-461 (hereafter the partition suit) Samuel appeals the dismissal of his suit to partition the marital residence he owned in joint tenancy with Barbara Schuppe (Barbara).
1 Barbara and Samuel were married in 1958. Three children were born of this marriage; twins, Ann Marie and Peter, age 16 and Elizabeth, age 11 in 1976 when Barbara filed for divorce alleging mental cruelty on the part of Samuel. Hearings in connection with these proceedings were held on August 15, 16 and 18, 1977; judgment for dissolution of marriage was entered on January 20, 1978. Therefore the provisions of the Illinois Marriage and Dissolution of Marriage Act (hereafter the New Act), effective October 1, 1977 (Ill. Rev. Stat. 1977, ch. 40 et seq.) are applicable. See Ill. Rev. Stat. 1977, ch. 40, par. 801(b).
Barbara was awarded custody of the couple's three children. She estimated expenses for herself and the children at $2315 per month, while Samuel estimated them at $1095 per month. The trial court awarded Barbara $1600 unallocated family support per month; said payment was to be reduced by $200 per month upon the graduation from high school of each of the children.
In the dissolution suit, the first issue raised on appeal is whether the amount of the award of unallocated family support is unreasonable and contrary to the manifest weight of the evidence.
Samuel argues that even with two of the children now emancipated (the twins having graduated from high school) the required monthly family support payment of $1200 is over one half (53%) of his net monthly income of $2250. He also testified that his gross monthly income is $5000; that this figure is reduced by several payroll deductions, including $500 per month in an optional profit sharing plan. Further, the parties stipulated that the "Lester Doctrine" derived from the decision in Commissioner of Internal Revenue v. Lester (1961), 366 U.S. 299, 6 L.Ed.2d 306, 81 S.Ct. 1343, would be applicable to this case to control the tax consequences of an award of unallocated child support and maintenance to Barbara. Thus, the unallocated payment of maintenance and support awarded would be treated as alimony only for income tax purposes. It would be fully deductible to Samuel for income tax purposes and includable in the income of Barbara.
2 The awarding of alimony (now termed maintenance under the new act) is a matter within the sound discretion of the trial court and will not be disturbed unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792.) Considering Samuel's monthly income, with both the required and optional deductions plus the tax benefits he receives, we are of the opinion that the monthly family support award is neither against the manifest weight of the evidence nor an abuse of discretion on the part of the trial court.
Next Samuel contends that the trial court erred in failing to terminate maintenance to Barbara. Section 504(b) of the New Act provides in pertinent part:
"(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after consideration of all relevant factors, including:
(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(4) the duration of the marriage." Ill. Rev. Stat. 1977, ch. 40, par. 504(b).
Samuel testified that he earns a base salary of $60,000 per year; in 1976 he also received a bonus of $600 in addition to his base salary. Barbara was a registered nurse prior to their marriage but terminated such employment shortly after the marriage. Barbara obtained a bachelors degree in 1977 from George Williams College and is at present enrolled in a masters program for a graduate degree in social work. She plans to work in private therapy after graduation; her income from such work would range between $8000 and $11000 per year.
Here, the parties have been married for approximately 20 years during which time Samuel has advanced himself in business while Barbara has devoted herself to maintaining a home and raising the couple's children. At present she is obtaining the education needed to return to the job market. Should Barbara obtain the maximum salary indicated for that occupation, her earnings would still be approximately one sixth of Samuel's yearly ...