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In Re Support of Mcgrew

OPINION FILED OCTOBER 16, 1980.

IN RE SUPPORT OF ALICE GRACE MCGREW, PETITIONER-APPELLEE. — (WILLIAM FRANKLIN MCGREW, RESPONDENT-APPELLANT.)


APPEAL from the Circuit Court of Effingham County; the Hon. GEORGE R. KELLY, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Respondent William McGrew appeals from an order granting $200 per month permanent maintenance to petitoner, Alice Grace McGrew, following the dissolution of their marriage under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 through 801). Respondent contends that the trial court abused its discretion in awarding maintenance because (1) his former wife did not meet the threshold requirements for an award of maintenance under section 504(a) of the Act since she had sufficient property to provide for her reasonable needs, was able to support herself through reasonable employment, and otherwise had sufficient income; and (2) an antenuptial agreement between the parties precluded a maintenance award. Respondent contends in the alternative that even if petitioner did meet the 504(a) statutory criteria for a maintenance award, in setting the amount thereof the trial court failed to give proper consideration to all the relevant factors under section 504(b).

At the time of the marriage of the parties on November 11, 1973, Alice Grace McGrew was 50 years old. She had been married previously, had children from that marriage who were grown, and had supported herself from the time of the death of her husband in December 1969. William McGrew was 61 at the time of the marriage and also had grown children from a previous marriage.

The parties executed an antenuptial agreement on November 5, 1973, six days prior to the marriage. The agreement revealed that Mrs. McGrew owned 280 acres of farm land in Wayne County used as a combination grain, hay, and livestock farm. On the farm was a seven-room ranch-type house with basement, built in 1953, barns and other outbuildings. The house was furnished with Mrs. McGrew's household furnishings and appliances. In addition, she owned a 1968 Dodge automobile, $3,700 worth of unsold crops, $600 cash in a checking account, and about 100 head of cattle. For almost 13 years prior to the marriage, Mrs. McGrew had been steadily employed at the Clay County Hospital in Flora, Illinois, doing nursing work, although she was neither a registered nor licensed practical nurse. For the four years preceding this marriage, she earned $18,423.10 from the nursing job. At the time of marriage she owed $2,500 to the First National Bank of Flora, Illinois.

The agreement disclosed that Mr. McGrew owned 447 acres of farm land in Wayne and Clay counties, improved with a six-room house built in 1967 and some outbuildings; farm machinery; a 1967 Plymouth automobile; $16,446 in accounts receivable; and approximately $30,000 worth of unsold crops. He owed $3,400 to the First National Bank of Xenia, Illinois. At the time, in addition to farming, he did custom combining.

Following the marriage, the parties lived in Grace's house and rented William's house for $100 per month, which sum was given to Grace. They managed both farms, as well as additional land rented by William. In September 1975, they moved to William's house. The parties lived together a little over three years, Grace moving out in December 1976. At the time of trial in May and June, 1979, Grace was 56 years old, and William was 66 years old. William had retired from farming and had leased his land under a share-crop agreement whereby the landlord got 40 percent and the tenants 60 percent.

The McGrews never commingled the profits from their farms while married. In March 1974, Grace purchased 16 acres of land for $3,200, which came from the sale of crops owned prior to the marriage. She also received 40 cares of land as a gift from her father. After the separation, she leased this land to her father for his lifetime. At the time of the trial, he was 84 years old and in poor health. There was no evidence in the record of any rental received from this tract.

During the marriage William paid off a $26,700 promissory note — cosigned by Grace — owed to a third party by Grace's son, Larry Mix. The parties agreed that William paid the debt of his own volition and without the prior knowledge of Grace or her son, but William testified that Grace agreed to repay the money to him if her son did not. This matter was the subject of a separate lawsuit in another county between William, Grace, Larry Mix and his wife, which was pending at the time of the dissolution hearing.

When Mrs. McGrew left the marital home on December 29, 1976, she moved to an apartment in Effingham. She testified that her monthly expenses were: rent, $235; utilities, $60; food, $120; clothing, $50; laundry, $15; medical and dental, $25; house and doctors' insurance, $25; homeowner's insurance, $35; car insurance, $10; church, $20; automobile operation, $100; loan expenses, $78; recreation and entertainment, $10; and payments on notes and miscellaneous, $100; a total of $883 per month. She owed $11,600 to the First National Bank of Flora, which she had borrowed to pay the following expenses: barn material, $6,000 (for improvements on her farm); taxes, $1,600; living expenses since separation, $1000; purchase of cattle, $3,000. She also stated that she owed her son $6,000 for living expenses. Following the separation, she rented her farm to her son, Larry Mix, and he agreed to pay her an annual rent of $7,300. This figure was based on a $25-per-acre rental and did not include any rent for the house and furnishings. This lease was terminable at any time by her giving proper notice to the tenant. She sold her cattle to him for a total of $23,900, which he agreed to repay by making repairs and improvements to the buildings on her farm within a reasonable time. Although she testified that the sale was made in August 1976, the written agreement was prepared in March of the following year and back-dated, which was after the separation. Both petitioner and her son testified that as of the trial date, June 1979, her son had paid her no part of the $23,900 and had made no improvements to her property, nor had she requested payment.

At the time of the hearing, William's assets also included the sum of $53,275, representing cash in the bank and accounts receivable. In 1973 his net income was $11,124.11. In 1974 and 1975, their joint net income was $13,141.04 and $19,438.86, respectively. In 1976, 1977, and 1978, his net income was $25,081.93, $35,892.97, and $14,408.59, respectively, while hers was $10,558, $11,685, and $9,455, respectively, from rent on her farm, private duty nursing, and wages paid for farm work done for her son. Her wages for January 1979 were $280, and for February, $225. She broke her arm in February and did not resume her nursing occupation, although at the time of trial she testified that she was in good health. She testified that she had worked for her son as late as the week before trial.

A real estate broker testified that petitioner's real estate had a fair cash market value of $322,200, and a fair cash market rental value of $12,630 per year for the farm land and between $1,500 and $1,800 for the house. A farmer of over 40 years' experience who farmed 700 acres — some of which adjoined petitioner's land — placed the fair cash market rental value of the land at $11,495 per year, while respondent set it at $14,200. Petitioner estimated her household goods and furnishings to be worth $2,000. She also testified that she had been eligible to receive a pension of $65.10 per month from the Illinois Municipal Retirement Fund since age 55 in October 1978, but had never applied for it. If she waited until age 60, the monthly benefit would be $93.

Petitioner testified that her standard of living was the same at the time of trial as it was when she was living with the respondent.

Following the hearing, the trial judge found that because of the parties' antenuptial agreement, there was no marital property to be divided, and thus each party retained his or her own property. No appeal was taken from that finding. The judge also found that the antenuptial agreement did not preclude an award of maintenance, and maintenance was awarded in the sum of $200 per month, commencing January 1, 1977, the first month following the separation. Respondent filed a motion for modification, and in denying the motion the court stated that he "took into account all the evidence presented and considered all requirements for maintenance and entered this order based on all factors but especially to permit the plaintiff to maintain standard of living established during the marriage."

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 504) as pertinent to ...


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