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In Re Marriage of Sipich

OPINION FILED JANUARY 31, 1980.

IN RE MARRIAGE OF PAULINE SIPICH, PETITIONER-APPELLEE, AND RUDOLPH SIPICH, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Pauline Sipich, the petitioner, and Rudolph Sipich, the respondent, were married in June of 1957, had four children between the years of 1958 and 1965, and were separated in 1972. Pauline Sipich brought an action for dissolution of marriage. Following a bench trial in the circuit court of Cook County, the court ordered the marriage dissolved and awarded Pauline Sipich child support, property, and attorney's fees. The court subsequently entered an order finding Rudolph Sipich in contempt of court for failure to make payments allegedly due under the terms of the judgment.

On appeal, Rudolph Sipich argues (1) that Pauline Sipich failed to prove any right to child support payments, that the award of child support was contrary to the manifest weight of the evidence, and that the amount of child support is excessive; (2) that Pauline Sipich is not entitled to maintenance; (3) that the distribution of property was disproportionate and unjust; (4) that the court abused its discretion in awarding attorney's fees to Pauline Sipich's attorney; (5) that the contempt order is void because the court erred in denying a petition for change of venue; and (6) that he did not wilfully or contumaciously disobey an order of the court.

At trial, Rudolph Sipich was called as an adverse witness by Pauline Sipich. He testified that his four children ranged in age from 12 to 20. He said he was 47 years old and that he is in the insurance brokerage business. The name of the business is Rudolph M. Sipich, CLU & Associates, Inc. He owns all of the stock in the corporation. Rudolph Sipich said his wife is 46 years old and that for the past three or four years she had been gainfully employed. At the time of trial he was sending Pauline Sipich $185 per week voluntarily. He was also paying her car expenses through his corporation, including gasoline and maintenance, her monthly phone bill which was about $26, and another $60 per month for the gas and oil for the home. Rudolph Sipich said the total sum he was providing monthly to Pauline Sipich and his children was approximately $950.

Rudolph Sipich testified that the family residence was purchased in the late 1960's for approximately $40,000, with a down payment of $10,000. The balance due on the mortgage is $23,000. Monthly payments are $315 per month which includes principal, interest, taxes and insurance. The market value of the home today is $80,000. The equity in the house is $53,000 minus sale costs which would result in a net profit of about $45,000. Rudolph Sipich estimated the combined value of the family home furnishings and Pauline Sipich's car at $15,000 to $20,000.

Rudolph Sipich said he lives in an apartment in a building he owns at 25 West Plainfield. His business also operates from that address. The building contains three apartments and two stores. He occupies two of the apartments, one for his business and the other for a residence. The rest of the space in the building is rented. The income from the one rental apartment is $275 per month. The rents on the stores are $406 and $550 per month. The corporation pays $610 per month for the two remaining apartments. The total rental income last year was $16,691, and the total expenses were $18,372. Rudolph Sipich introduced a letter from a professional appraiser which shows the fair market value of the Plainfield property to be $120,000 as of March 1977. In a financial statement executed in February 1977, Rudolph Sipich said the value of the Plainfield property was $145,000.

Rudolph Sipich said he acquired the Plainfield property in December 1975. The price was $120,000 and he made a $25,000 down payment with money borrowed from a bank. The original mortgage was $95,000 which was payable in monthly installments of $1,030. When he purchased the Plainfield property he completed a financial statement and listed his total assets as "$150,000 or $175,000." This was three years ago.

Rudolph Sipich testified his income from the business is about $12,000 per year. He gets a check each week for $210 from the business. This represents his draw. He also said his annual draw from the business is determined at the end of each year and depends upon the corporation's profit or loss for the year. His accountant decides how much the draw will be.

Rudolph Sipich said his personal monthly expenses are approximately $700 to $750 per month. He said he has a number of credit cards. He charges his grocery bills to the credit account and charges the bills to the corporation. He does the same with Pauline Sipich's gas and oil bills for her car. He uses corporate funds for the purchase of his and Pauline Sipich's cars and also charges entertainment expenses to the corporation.

The corporation's tax return for the fiscal year ending September 30, 1975, showed a deduction of $3833 for entertainment and $2824 for vehicle expenses. That year Rudolph Sipich had an income of $24,500. For the tax year ending September 1976, Rudolph Sipich's salary was $13,700; vehicle expenses were $4661.58 and entertainment expenses were $6145. The 1976-77 corporate tax return showed a salary of $12,000 and entertainment expenses of $11,548.

Rudolph Sipich explained that his entertainment expenses had increased because the corporation took on a group insurance program which required a large initial investment. He also explained that his 1974-75 salary was higher than in subsequent years because he wrote a $1,000,000 insurance policy on a friend and received the commission to deposit on the Plainfield property. The policy was later allowed to elapse and the commission is still carried today as money due even though he will never receive it.

Pauline Sipich testified that she is 45 years old. She said she has $2000 in the bank and that she has been gainfully employed for the past five years doing office work. Her net earnings are $126 per week. She uses the money for household expenses. She also testified that the money she had been receiving on a voluntary basis from Rudolph Sipich was not sufficient to maintain herself and the children.

Pauline Sipich's attorney testified that his work on behalf of Pauline Sipich in this case involved eight hours of appointments, 19 court appearances totaling 20 1/2 hours, and preparation of pleadings totaling four hours. His rate is $100 per hour for office work and $150 per hour for court work. The fee he is seeking is $5225. On cross-examination he conceded that a deposition listed in his records was never taken. His petition for fees included copies of the appropriate time records.

In its judgment order the trial court found that Rudolph Sipich had been voluntarily giving Pauline Sipich $950 per month and that he testified his personal expenses amounted to $750 per month. The court commented that such expenditures could not be made from an income of only $12,000, and concluded that Rudolph Sipich had to be earning more ...


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