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Gorman v. Gorman

OPINION FILED MAY 22, 1979.

MARY C. GORMAN, PLAINTIFF-PETITIONER-COUNTERRESPONDENT-APPELLANT,

v.

ROBERT GORMAN, DEFENDANT-RESPONDENT-COUNTERPETITIONER-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Mary C. Gorman, appeals an order of the circuit court of Cook County granting defendant Robert Gorman's post-decree petition seeking a reduction in the alimony award. The sole issue for review is whether the trial court abused its discretion in finding a material change of circumstances warranting the reduction of the alimony award from $500 per month to $300 per month.

On July 6, 1972, after 29 years of marriage and seven children, a judgment of divorce was rendered in plaintiff's favor. In the property settlement agreement incorporated in the decree, defendant agreed to pay plaintiff $500 per month as unallocated alimony and child support for the parties' three minor children, ages 18, 12, and 10, whose permanent custody was awarded to plaintiff. Defendant also agreed to pay the children's college expenses provided that he was financially able to do so at the time of their enrollment.

At the time of the decree, defendant was 55 years old, had been employed by Local Union 55 for 24 years, and was earning a net salary of $297.37 per week. The plaintiff was also employed and was grossing approximately $4,000 per year. Paragraph (h) of the property settlement agreement provided that plaintiff had the right to earn up to $5,000 per year without such earnings being a circumstance to warrant a petition for a reduction in the alimony and child support award. Paragraphs (k) and (l) provided that plaintiff would receive one-third of defendant's $45,000 severance pay and one-third of his $10,500 yearly retirement pension until the children reached their majority, at which time such payments would be reduced to one-fourth.

The decree further awarded plaintiff the marital home valued at $45,000 subject to a first mortgage and the general real estate taxes for 1971 and 1972, the personal property therein, and a 1970 Oldsmobile. Defendant was ordered to maintain hospital and major medical insurance for the minor children and to pay their extraordinary medical expenses. Plaintiff was made the trustee beneficiary of defendant's two life insurance policies for the benefit of the minor children until they reached majority. Upon their majority, plaintiff was to become the sole beneficiary of these policies and to remain as such until defendant's obligation for support terminated.

On July 23, 1975, plaintiff petitioned for an increase in alimony and child support predicated on an alleged increase in the cost of support and an alleged substantial increase in the defendant's income. The court granted this petition increasing plaintiff's alimony to $500 per month and child support to $125 per month for each of the remaining two minor children. The court further ordered the termination of child support payments upon the emancipation of each of the children. At that time plaintiff was unemployed and defendant had a gross income of $37,000 per year.

On June 24, 1977, plaintiff filed a petition seeking enforcement of paragraph (r) of the decree in which the defendant agreed to pay the children's college expenses. Defendant's answer alleged that since he was eligible for retirement, he was financially unable to provide for their daughter Cathy's education. He further argued that since plaintiff was then employed, she should be required to contribute toward these expenses.

The instant appeal arises from defendant's petition filed the same day as his answer to plaintiff's petition, wherein he sought (1) a reduction in the alimony award, (2) the termination of Cathy's child support award, and (3) a modification of paragraphs (k) and (l) of the property settlement agreement. Defendant contended that his desire to retire and his inability to do so if required to pay alimony and child support at the present level or at the level provided in paragraphs (k) and (l), and plaintiff's current employment constituted changes of circumstances warranting a reduction in the alimony award. Plaintiff's answer denied the existence of such a change of circumstances insofar as her salary at the time of the petition had not exceeded the $5,000 limit set by paragraph (h) of the decree.

The testimony adduced at the August 19, 1977, hearing on defendant's petition established that defendant and his new wife had purchased a two-bedroom condominium in 1973 for approximately $32,500. Defendant testified that he had obtained a $40,000 loan from his father to make this purchase, thus avoiding mortgaging the property. Defendant further testified that a $20,000 savings account bearing his name as well as that of his sister and his father contained funds belonging solely to his 85-year-old father. Moreover, although defendant acknowledged the purchase of 1976 and 1977 Cadillacs without financing, he testified that they were purchased by his new wife with her separate funds. Defendant's 1976 income tax return filed jointly with his new wife shows that she received wages of $12,000 and trustee's fees of approximately $25,000 in that year.

At the time of the increase in the alimony and child support award in 1975, defendant was earning a gross salary of $37,000. Between 1972 and the 1977 hearing, defendant also received reimbursements from the union for business expenses totaling approximately $11,500, a $500 allowance, and the use of a car maintained by the union. Due to yearly increases of approximately $2,000, defendant was grossing approximately $800 per week or $41,000 per year at the time of the hearing. However, following deductions for Federal and State income taxes, Social Security, an involuntary contribution to the union's retirement fund, and the purchase of a $75 bond each week, defendant's net salary at the time of the hearing was only $369.12 per week.

The record also establishes that defendant had had a heart condition for 20 years, an ulcer for 8 years, emphysema for 6 months, and was a borderline diabetic. Sixty years old at the time of the hearing, defendant testified that he could not retire if he were required to continue to pay the 1975 increased alimony award.

Plaintiff testified that she had been employed by the Cook County Department of Public Health since June 16, 1977, and that she was earning a gross salary of $604 per month, or a net salary of $269 every two weeks. Plaintiff expressed her satisfaction with her employment and her ability to perform the duties required of her. Plaintiff further testified that her home was no longer encumbered by a mortgage, that she and her brother maintained a joint savings account containing a $5,880 inheritance from her father who had died after her divorce, that she expected no more inheritance, and that she had not earned over $5,000 in any taxable year since the 1972 decree.

Cathy Gorman, the parties' daughter, testified that she would be 18 in two months, and that she was enrolled in Northern Illinois University for the 1977 fall semester. Cathy estimated that tuition per semester was $860 and that room and board was $730. A brochure from the university filed with the court indicated that tuition was $308.75 per semester and room and board for a single room in a high rise dormitory was $870 per semester. Cathy further estimated the cost of books to be $75 to $100 per semester, and miscellaneous expenses to be $289 totally. Although Cathy stated that she had not received an inheritance, defendant's attorney made an offer of proof that she had worked for 1 1/2 years at a sandwich shop and had accumulated $1,000 in savings.

Following the evidentiary hearing, the trial court ordered defendant to pay the expenses of Cathy's first year of college estimated by the court to be $2,900, ordered the termination of Cathy's child support award on her 18th birthday, and reduced the alimony award to $300 per month. The trial judge left unaffected the 1975 $125 per month child support award for the parties' youngest child. Plaintiff ...


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