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In Re Marriage of Dulyn

OPINION FILED SEPTEMBER 29, 1980.

IN RE MARRIAGE OF CHRISTINE DULYN, PETITIONER-APPELLEE, AND GREGOR DULYN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Gregor Dulyn (hereinafter respondent) appeals from the entry of a supplemental judgment by the circuit court of Cook County on October 31, 1978, apportioning the parties' marital property, awarding maintenance, child support, attorney's fees, and establishing the parties' minor child as the irrevocable beneficiary of an insurance policy to be maintained by the respondent on his life until the minor child reaches majority or until he completes his college education. No appeal has been taken from the entry of the original judgment in this cause which granted the dissolution of the marriage and established custody and visitation rights. It is urged on appeal that the trial court erred: (1) in awarding $600 per month as child support, requiring respondent to pay one-half of the minor child's private school tuition, and requiring respondent to maintain his life insurance for the minor child; (2) in awarding Christine Dulyn (hereinafter petitioner) $4,000 in satisfaction of all claims in the parties' marital property and maintenance; and (3) in awarding petitioner's attorney $5,000 in fees.

Affirmed in part, and reversed in part.

The respondent filed a complaint for divorce on August 16, 1976, against petitioner from whom he had been separated for six years on the basis of desertion. Petitioner generally denied respondent's allegations and filed a counterclaim for divorce, also alleging desertion. Temporary unallocated child support and maintenance was awarded to petitioner in the amount of $600 per month. Thereafter, a vast number of motions were filed alleging the contemptuous or otherwise improper conduct of one or the other party. On June 2, 1978, after an uncontested hearing, the trial court granted a dissolution of the parties' marriage on the petitioner's counterclaim. That judgment incorporated an agreement reached between the parties as to child custody and visitation.

The record discloses the following undisputed facts. At the time of the judgment the petitioner was 40 years old and the respondent was 55. The couple was married on December 28, 1968, in New Jersey and resided in Illinois until their separation 13 months later. After their separation, the respondent continued his residence in Illinois while the petitioner returned to New Jersey with the parties' minor child and took up residence with her mother. The respondent, who is a physician in Joliet, Illinois, listed assets which included: a house in Joliet owned in joint tenancy with his mother, where he, his mother, and a niece live; a small frame house which is used as an office; a one-sixth interest in land in Yuma City, Arizona; and a two-year-old Lincoln Continental, on which he owed $3,300. The petitioner, who has a high school education but no special skills, worked as a bank teller for seven to eight years prior to her marriage but has not worked since then. Her only income since the separation has been the $100 per month unallocated alimony and child support she received from respondent. She did not pay income tax on this amount because she did not think that she had to. Petitioner's assets included a four-year-old Pontiac Lemans on which she still owed $1,800 and a savings account with a balance of $5-$10. A two-year-old car owned by petitioner and left with respondent at the time of their separation was a total loss in an accident by respondent. Petitioner has outstanding loans in the amount of approximately $10,000 on money she borrowed from an aunt and an uncle for living expenses. She also owes her mother for room and board.

The testimony of the parties in the contested hearing regarding maintenance, child support, and property rights conflicted in several particulars. The respondent's testimony was also impeached in several respects and uncorroborated in others. Petitioner refuted the testimony of respondent that his father bought the house that he and his mother now own. According to her testimony, respondent told her that he had bought the house for his parents and paid all expenses associated with it, including taxes, because his parents didn't have any money. It was also disclosed that shortly before the trial the respondent sold an interest he owned in some Arizona apartments. He testified that he borrowed $12,000 from his mother to purchase the interest and that he turned over the $12,000 he obtained when he sold the interest to his mother to repay her. He did not know where she had gotten the money to loan him in that she had not worked for a number of years. No note or other evidence of the debt was executed. The respondent's testimony in this regard was impeached by reference to his deposition testimony where he stated that the funds which he used to purchase the apartments came out of earnings from his practice. The record also shows that the respondent withdrew $10,700 from a savings account shortly after filing this action. At the trial the respondent explained that the withdrawal was made to repay loans deposited a little at a time into the account. This testimony, however, contradicted his deposition testimony which stated that the money in this account came from earnings from his practice.

The respondent also testified that he suffered from angina pectoris, a heart condition, for which he was under the care and treatment of a physician. On cross-examination, respondent admitted that he had never been hospitalized for this condition. Furthermore, the testimony concerning the respondent's health was uncorroborated. It was maintained that the state of the respondent's health explained the overall downhill turn in his financial picture. His gross receipts for 1975-1977 were $80,000, $70,000 and $60,000 respectively. Tax records, not a part of the record on appeal but referred to in the record and briefs, apparently revealed a net income in those years of between $10,000 and $11,500. The respondent's net income for the first six months of 1978 was reported as approximately $6,000. An employee of the respondent confirmed the $6,000 income figure for 1978. However, on cross-examination her testimony was impeached on the basis of bias because she indicated that she put in many off-hours' work for her employer, including entertaining the parties' minor child when he was in Chicago. Respondent's testimony indicated that his taxable income was reduced by several factors which did not affect his ability to pay maintenance or support: depreciation on his car, Keough plan payments, and personal exemptions and deductions. Despite this financial situation, respondent employs three persons to maintain his office, two full-time employees, including a niece, and his mother part-time. In addition to the salary his mother and niece receive, each also receives room and board as part of their employment. Petitioner noted in her testimony that her mother-in-law had not worked for her husband during their courtship nor after they were married.

Respondent and petitioner contradicted each other as to what transpired at the time of their separation. Respondent stated that his wife left no personal property behind when she left and in fact stole personal property owned by him, including personal effects, and one-half of all of the china, silver and furniture. This was denied by petitioner, who stated that she didn't take anything with her when she left. She claims an interest in personal property held by the husband because she spent $2,000 on china, silver, a television, and furniture and because of wedding gifts received by the couple.

We turn first to a consideration of respondent's arguments attacking the child support provisions as excessive in light of the respondent's $11,000 per year income. The respondent first asserts that the $600 per month child support payments were excessive in that they constituted 60 percent of the respondent's net income. Determination of the proper amount of child support lies within the sound discretion of the trial court and will not be set aside unless contrary to the manifest weight of the evidence. (In re Marriage of Edelstein (1980), 82 Ill. App.3d 574, 403 N.E.2d 323; In re Marriage of Preston (1980), 81 Ill. App.3d 672, 402 N.E.2d 332; In re Marriage of Reyna (1979), 78 Ill. App.3d 1010, 398 N.E.2d 641; In re Marriage of Raski (1978), 64 Ill. App.3d 629, 381 N.E.2d 744.) Under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 505), the factors to be considered in granting child support 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.

While the respondent testified that his net income was approximately $11,000, the trial court could have determined that the respondent in fact had a much greater net income for his average gross income of $70,000. Indeed, the court could have concluded that the lower net income figure represented respondent's attempt to shelter income from taxation and his wife and child by passing income to optional dependents, and taking other deductions from his gross income which did not affect the total amount of money which he had available for either maintenance or support payments. Moreover, the trial court could have found that the respondent had hidden income from the court by claiming that a $10,700 savings deposit withdrawal was made to repay nonexistent loans and that an additional $12,000 was paid to respondent's mother for a nonexistent loan she made to him to buy an interest in some Arizona apartments. The credibility of witnesses is left to the trier of fact because it is alone in the position to see the witnesses, observe their demeanor, and thus make a judgment as to the relative credibility of conflicting testimony on issues of fact. We will not reverse the trial court's finding of fact absent an abuse of discretion. In re Marriage of McGowan (1980), 84 Ill. App.3d 609, 405 N.E.2d 1156; Tandy v. Tandy (1976), 42 Ill. App.3d 87, 355 N.E.2d 585; Farah v. Farah (1975), 25 Ill. App.3d 481, 323 N.E.2d 361.

• 1 Respondent also claims that the $600 award exceeds the child's needs and was, therefore, erroneous. We reject this contention because it ignores any consideration of the standard of living the minor child would have enjoyed had the marriage not been dissolved. (In re Marriage of Edelstein (1980), 82 Ill. App.3d 574, 403 N.E.2d 323.) Reviewing all of the pertinent factors in the present case, we believe that the award of $600 per month for child support was proper.

• 2 Respondent next argues that he should not be required to pay one-half of his son's private school tuition because the record does not establish the necessity for the child to attend private school as there is a public school in close proximity to petitioner's residence. The petitioner directs our attention to her testimony at the hearing where she explained that she consulted with respondent before enrolling the child in nursery school to determine what type of school he thought the child should attend. At that time, respondent told petitioner that the child should attend the best school possible and that he would pay for any school that she found. Subsequently, respondent wrote a letter confirming that he would pay for the cost of the child's education. Pursuant to her conversation with respondent and his letter, petitioner enrolled the child in private school. Prior to the filing of this suit, respondent paid for the total cost of the tuition; however, since that time the tuition has been paid by respondent's niece. A child's support needs are determined in reference to the financial resources of the parties and the child individually, the standard of living the child would have enjoyed had the marriage not been dissolved, and the physical, emotional, and educational needs of the child. (Ill. Rev. Stat. 1977, ch. 40, par. 505; In re Marriage of Edelstein.) We do not believe that the respondent could have agreed to place his child in a private school and then complain that a private school education and its attendant expenses were unnecessary.

The respondent's final argument in regard to the child support award is that the trial court erred in requiring him to name his son as irrevocable beneficiary on his $50,000 life insurance policy. He asserts that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) contains no provision which would specifically authorize the court to require him to maintain his insurance for the child and that, as he was not required to maintain insurance as an attribute of support during the marriage, he should not be required to provide insurance incident to the dissolution absent such specific statutory authority.

• 3 After due consideration of the new act, it is our conclusion that a parent may be required to provide or maintain life insurance with his child as irrevocable beneficiary under either section 503(d) or 510(c). Section 503(d) provides that the court may establish a trust or separate "fund" from a portion of the jointly or separately held estates of the parties to protect and promote the best interests of the children and to provide for their support, maintenance, education, and general welfare. Under this provision, a trust is not established merely because of the relative financial positions of the parties, but rather only where it is clear that it is necessary to protect and promote the best interests of the child. In re Marriage of Atkinson (1980), 82 Ill. App.3d 617, 402 N.E.2d 831; In ...


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