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In Re Marriage of Edelstein

OPINION FILED MARCH 10, 1980.

IN RE MARRIAGE OF CELINA EDELSTEIN, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND BARRY EDELSTEIN, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. HYDE, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Respondent Barry Edelstein appeals and petitioner Celina Edelstein cross-appeals from a judgment dissolving their marriage. Six years prior to the divorce the parties separated and continued to live apart. Under the terms of the judgment, respondent's child-support payments were increased from $250 per month to $1,000 per month. He was also required to pay all of their son's summer camp tuition and half of petitioner's attorney's fees.

On appeal, respondent argues that the trial court erred (1) in increasing his child-support payments to $1,000 per month and (2) in ordering him to pay part of petitioner's attorney's fees.

On cross-appeal, petitioner argues (1) that the trial court's award of $1,000 per month for child support is inadequate; (2) that the trial court erred in requiring her to pay part of her attorney's fee; (3) that the trial court erred in permanently barring her from receiving maintenance; and (4) erred in requiring her to share in financing her son's education.

We affirm in part, reverse in part and remand with directions.

Petitioner and respondent were married on June 25, 1960. As a result of that marriage, a son, Scott, was born. Scott is 13 years of age. In 1972 the parties separated. At that time respondent was in his residency in radiology and earning $17,111 per year. Petitioner was employed as a research technician. From that time until the present, the parties have lived separately and been gainfully employed. In 1978 petitioner earned $17,500 as a research technician and respondent earned $75,000 as a physician.

In 1972 petitioner filed a petition for the dissolution of their marriage. The trial court ordered respondent to pay petitioner $250 per month for child support.

In 1978, the matter was heard. A judgment dissolving their marriage was entered on November 2, 1978. In addition, the judgment increased respondent's monthly child-support payments from $250 to $1,000, ordered respondent to pay 100 percent of Scott's summer camp tuition, and awarded petitioner $3,250 in attorney's fees. Respondent appeals and petitioner cross-appeals.

On appeal, respondent first argues that the trial court erred in raising his child-support payments from $250 per month to $1,000 per month. In support of this contention, respondent contends that in arriving at the $1,000 per month figure, the trial court considered only respondent's ability to pay, rather than the needs of the child. Respondent further challenges the award on the grounds that it represents 58% of petitioner's household expenses. As such, it improperly relieves petitioner of any responsibility for the financial support of the child.

Petitioner, on the other hand, argues that $1,000 per month is inadequate because it fails to reflect the standard of living Scott would have enjoyed had the parties' marriage not been dissolved. It is also inadequate, she argues, because the trial court failed to consider the relative needs and resources of the parties.

• 1 In Illinois, the financial responsibility for the support of the child is a joint and several obligation of each parent. (Riordan v. Riordan (1977), 47 Ill. App.3d 1019, 365 N.E.2d 492; Hursh v. Hursh (1975), 26 Ill. App.3d 947, 326 N.E.2d 95.) Determination of the proper amount lies within the sound discretion of the trial court and will not be set aside unless contrary to the manifest weight of the evidence. (Sandberg v. Sandberg (1973), 11 Ill. App.3d 495, 297 N.E.2d 654.) Those factors to be considered are the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and his educational needs, and the financial resources and needs of the non-custodial parent or parents. Ill. Rev. Stat. 1977, ch. 40, par. 505.

• 2 Reviewing all of the pertinent facts in the present case, we believe the award of $1,000 per month for child support was proper. While the language of the judgment indicates that the only factor considered by the trial court was respondent's increased ability to pay, other factors support the award.

First, there are the financial resources and needs of petitioner as custodial parent. While she earns $1,458 per month, she and Scott have combined monthly living expenses of $1,865.06. Thus her income fails to meet their financial needs by nearly $400 each month. The second important factor to be considered here is the standard of living Scott would have enjoyed had the marriage not been dissolved. Had the marriage not been dissolved, Scott would have enjoyed a standard of living based on combined incomes of $92,500, a substantial sum to say the least. When one considers petitioner's financial resources and the standard of living Scott would have enjoyed, $1,000 per month for child support is not an unreasonable amount.

Respondent next argues that the trial court erred in awarding petitioner $3,250 in attorney's fees. Respondent contends that petitioner is not entitled to attorney's fees since she earns $17,500 ...


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