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In Re Marriage of Smith



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM E. BLACK, Judge, presiding.


Ruth J. Smith appeals from a divorce decree challenging the sufficiency of the maintenance and property awards granted her and the denial of her request for attorney's fees.

On July 13, 1976, W.H. Smith (hereinafter the husband) sued his wife Ruth for divorce. After numerous pleadings, Ruth Smith (hereinafter the wife) ultimately counterclaimed for divorce. The trial court granted a dissolution of the parties' marriage and on April 28, 1978, ordered that: (1) the husband shall pay $100 per week in permanent maintenance; (2) the marital home should be sold within four months and the net proceeds divided equally; (3) all savings and checking accounts shall be divided equally between the parties, and (4) each party shall pay his or her own attorney's fees.

The basic question presented in this case is whether a husband has the right to retire at an early age during the pendency of the divorce proceedings brought initially by himself. It appears that the husband, age approximately 54 during the divorce proceedings, was in good health.

The Smiths were married in 1943 and separated in 1976. They have five children, ranging in age from 21 to 28 years of age, none of whom is dependent upon their parents for support. The husband graduated from the University of Illinois with a degree in sanitary engineering in the late 1940's and was employed by the Cast Iron Pipe Research Association (CIPRA) from 1956 until he resigned effective December 31, 1977. He has been a recognized expert in the cast iron pipe area for several years. At the time of his resignation the husband was the president of CIPRA with a salary of $50,000 per year and fringe benefits, including an automobile and an expense account. He had earned over $40,000 per year for several years. He retired, according to his letter to the board of directors of CIPRA, because:

"I have had a wish to work as an individual consultant and have now determined that I will embark on this new venture in January, 1978."

The husband testified that he resigned because he had had to work 60-80 hours per week as president of CIPRA and that he no longer wanted to work at such a demanding job. Mrs. Smith contends that his resignation was motivated, in significant part, by a desire to punish her for her refusal to agree to his offers of settlement.

In January 1978 the husband set up a corporation from which he hoped to work as a consultant. The husband is the owner, director and chief operating officer of the corporation; it is essentially a one-man operation. The corporation had purchased a pickup truck and some instruments worth between $2000 and $2500 prior to the time of the hearing in May 1978. His new consulting firm had been hired by CIPRA, primarily so that the husband could train his successor as president of that organization. He was paid $200 per day for this service and had either received or was owed approximately $5300 from CIPRA at the time of the hearing. He had $350 in his individual bank account and approximately $600 in the consulting firm's account as of February 1978. Besides the potential income from his consulting firm, the husband has been receiving $41 per month in disability benefits and began receiving about $400 per month in retirement benefits from CIPRA as of May 1978.

The husband lives with his parents on their farm and estimated his current living expenses at $400 per month. He was contemplating the rental of a house in which to live and from which he could operate his consulting business and estimated his eventual living expenses to be $600 per month. The husband was 54 years of age and in good health at the time of the hearing.

The wife is 54 years old. She has a high school education and "some" college before her marriage and worked as a receptionist to help put her husband through school after World War II. During the marriage she was the homemaker with primary responsibility for cooking, cleaning and the care and raising of the couple's five children. In 1973 she began to work part time as a real estate salesperson and earned a total of approximately $10,000 at that work over the next three years. She left voluntarily because she "wasn't making enough money for the amount of time I was putting into it." She then had a part-time job as a receptionist/typist in 1977 at $2.50 per hour. She is currently taking courses at the local community college with the goal of acquiring an associate's degree.

The parties own a home in Wheaton in joint tenancy. The wife estimates it to be worth $60,000, and the husband estimates it to be worth $75,000. The wife has been living in the home since the separation and has been making the monthly mortgage payments of $141.75 and has also been paying the taxes and insurance on the home. The parties have a joint savings account which was established with $3500, including approximately $1000 that the wife's father had left her at his death. This account apparently had over $3000 in it at the time of separation and had "a little over" $2000 at the time of the proveup. The wife had used this account to help pay living expenses during separation and had drawn out $300 to cover a check the husband had written for his attorney's fees. The wife also has her own savings account which contained about $1000 at the time of the separation.

The wife testified that in the last few years her lifestyle with her husband had been "very comfortable," that she and her husband had traveled and that she could get the clothing she needed and didn't have to worry about the cost of groceries. The parties have been able to have their own automobiles and give each of the five children a college education. The family has no substantial debts outside of the $5000 mortgage on the home. The wife estimated her yearly living expenses to be $18,394.48 or $1588.04 per month. This figure was challenged by the husband who claims that it is excessive.

We turn first to the wife's contention that $100 per week was an insufficient maintenance award under the circumstances herein. Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 504) provides the appropriate standards to be considered by the trial court in determining an award of maintenance. Among the considerations articulated in this statute are the standard of living during the marriage, the duration of the marriage, the age and physical condition of both parties, the financial resources of the party seeking maintenance, and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

The wife contends that the maintenance award was insufficient due to the trial court's error in not considering the husband's ability to provide support but based the amount of the award on husband's actual income after his retirement from CIPRA. This contention assumes that the trial court did, in fact, base the amount of its award to the wife on the husband's actual post-retirement income and not on his ability to earn additional funds. However, the record indicates that this assumption may not be totally correct. Although the amount of the award indicated that the trial court did not base the amount on the husband's preretirement income of $50,000 per year, for in this particular case such an income would mandate a higher level of maintenance, the award appears to have been based upon his prospective future earnings as a consultant rather than only upon his then current earnings. The husband's retirement pay and disability benefits, his only definite current income, is almost exactly the ...

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