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In Re Marriage of Sahagian

OPINION FILED APRIL 2, 1979.

IN RE MARRIAGE OF WANDA M. SAHAGIAN ET AL. — (WANDA M. SAHAGIAN, PETITIONER-APPELLEE,

v.

H. TOM SAHAGIAN, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 30, 1979.

In this action for dissolution of marriage, after a trial on the merits, judgment was entered in favor of the petitioner on the grounds of adultery. Petitioner was awarded a lump sum settlement of $25,000 as alimony in gross. The respondent appeals.

In his brief in this court, respondent contends that the trial court erred in awarding alimony to the petitioner in the first instance because petitioner did not prove her need for said alimony. Respondent further contends that the trial court erred in awarding alimony in gross.

On January 3, 1977, the petitioner filed her complaint alleging that the respondent was guilty of mental cruelty. The complaint alleged that the parties had been married for eight years; no children were born to or adopted by them; and the parties had acquired certain properties consisting of a marital residence, furniture, two automobiles and certain bank accounts. Petitioner prayed a divorce from the respondent; temporary and permanent alimony; attorney's fees and injunctional and other relief. Respondent filed a counterclaim alleging mental cruelty and seeking an award of all jointly held property. On July 25, 1977, the petitioner filed an amended complaint charging the respondent with adultery.

At trial, under oath, respondent admitted that he had committed adultery. Respondent testified he had lost his job approximately two weeks prior to the hearing. Respondent testified that he received income in the form of commissions which he did not report to the Internal Revenue Service. Petitioner testified that she had discovered W-2 forms which established that the respondent had received $7500 in commissions in 1976. The respondent did not report this item on his income tax returns and petitioner had no previous knowledge of this income. Respondent's total earnings for 1976 were approximately $30,900.

Respondent further testified that he had received a loan of $23,000 from his mother which was used to purchase the marital residence by the parties owned in joint tenancy. Respondent testified that no note was executed for the loan, no repayments had ever been made, and he had no actual proof of the payment of the money to him from his mother.

Petitioner testified she earned a net income of $770 per month. She testified she needed alimony from the respondent to "make up the difference so that I may live the way I would like to live, or the way I have been accustomed to living the last eight years." Petitioner testified that her expenses exceeded her salary by $309 a month. Petitioner further testified that the first time she had ever heard of the $23,000 loan from the respondent's mother was after she had filed these proceedings.

Respondent's mother and sister testified that the respondent had received a loan of $23,000 from respondent's mother to enable the respondent and the petitioner to purchase their marital residence.

The judgment found that neither respondent nor his mother had any special equities in the marital residence. The judgment ordered that the marital residence remain in joint tenancy. The judgment further provided that the petitioner be awarded "lump sum alimony in gross" of $25,000 to "be paid out of the proceeds from the ultimate sale of the property" and to "act as a lien against the Defendant's [respondent's] interest" in the marital residence.

• 1 Respondent contends the petitioner should not have received alimony in the first instance. This court stated in Walters v. Walters (1950), 341 Ill. App. 561, 567, 94 N.E.2d 726, aff'd (1951), 409 Ill. 298, 99 N.E.2d 342:

"It [alimony] is based upon the husband's income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live."

In Comstock v. Comstock (1977), 55 Ill. App.3d 140, 145, 370 N.E.2d 645, this court quoted from Pohren v. Pohren (1973), 13 Ill. App.3d 380, 384, 300 N.E.2d 288:

"Our Statute (Ill. Rev. Stat. 1971, ch. 40, par. 19) provides that when a divorce is decreed, the court may make such order touching the alimony and maintenance of wife or husband as from the circumstances of the parties and ...


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