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In Re Marriage of Viehman

OPINION FILED NOVEMBER 26, 1980.

IN RE MARRIAGE OF JAMIE R. VIEHMAN, PETITIONER-APPELLEE, AND RUSSEL R. VIEHMAN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of St. Clair County; the Hon. DENNIS J. JACOBSEN, Judge, presiding.

MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Respondent, Russel R. Viehman, appeals from the order of the St. Clair circuit court with respect to the division of marital property and the award to petitioner of maintenance of $750 per month for five years in a proceeding for dissolution of marriage. The respondent also appeals from an order finding that he was delinquent in payment of court-ordered temporary maintenance.

At the time of the final hearing on the question of property division and maintenance, the parties, Jamie R. Viehman and Russel R. Viehman, were 46 and 51 years of age respectively. Respondent has worked for Guth Lighting for 25 years. His salary at time of trial was $45,000 per year as general manager. The net annual salary was $30,000, and in addition respondent has received bonuses of between $5,000 and $8,000 per year for the past several years. Further, he received $2,800 per year in dividends from stock of General Signal, the parent company of Guth Lighting. The value of the General Signal stock at the time of trial was $96,000; however, respondent had obtained a loan of $37,000 in the past in order to exercise certain of his stock options. The parties own approximately $2,000 worth of stock in other corporations, and respondent testified that he was entitled to a retirement plan valued at $2,370.

The marital home was purchased for $37,000 and has been appraised at $105,000. The home is subject to a mortgage on which there is an unpaid balance of $14,000. Respondent has purchased a 10-percent interest in a land trust for $10,000. This interest was valued at $12,000 at the time of trial. Respondent is expected to receive a Federal income tax refund of $1,950. The parties' personal assets consist of household furniture estimated to be worth $6,000 and a family automobile, a 1978 Chevrolet, valued at $4,850, which is subject to a loan in the amount of $4,295. The cash values of respondent's life insurance policies are negligible due to the fact that he had taken out loans against them to pay for the educational expenses of the children. According to the evidence, the total marital debts are approximately $78,000, consisting of various loans and retail credit purchases.

Respondent has moved into an apartment and pays $330 per month apartment rent and $57 per month for leased furniture. He estimated his living expenses as being $1,181 per month and states that he has tried to meet the monthly loan and charge payments as they become due.

The parties have three children, Carl, 18, Tracy, 21, and Eric, 23. All three of the children are in college, and Eric is self-supporting.

Petitioner has a high school education and has been married to respondent for 27 years. The evidence established that for the past 5 1/2 years, petitioner had been employed as a property manager for a real estate firm. Her duties include showing apartments to prospective tenants, collection of rents, and supervision of maintenance of the building. Because the job is not full time, petitioner's earnings varied between $299 and $500 per month. She has been attempting to negotiate a sale of the marital home for $85,000 and has been required to expend money to get the house in salable condition. Petitioner stated that she plans to move to Texas, although she has not secured employment there nor is she familiar with the living expenses in Texas. According to petitioner, she had paid some of the expenses for the children's college during the previous year. She pays automobile insurance of $758 for six months, and the children are covered by the policy. She stated that automobile insurance for herself would be $115 for six months. Petitioner agreed that the marital debts totaled approximately $77,000. She testified that as a result of her petition for temporary support and maintenance, respondent was ordered by the court to pay her approximately $1,100 per month and that as of October 18, 1979, there would be a four-month delinquency in compliance with that order. She thought that respondent may have paid a couple of the utility bills as well as the mortgage and automobile payments.

On October 31, 1979, the court entered an order awarding petitioner the marital home, the household furniture, the 1978 Chevrolet, and all stocks with the exception of the General Signal stock. Petitioner was ordered to pay any remaining mortgage or loan payments, taxes, and insurance on the foregoing items. The court further awarded petitioner $1,700 maintenance per month for herself and for the educational expenses of the two youngest children. The maintenance was to be reduced by 29.4 percent upon the undergraduate graduation or marriage of each child and by 41.2 percent five years from the date of the order or upon petitioner's remarriage.

The court awarded respondent all the General Signal stock, the beneficial interest in a land trust, any income tax refund which might be due or might have been received, the retirement fund, and all life insurance policies. Respondent was ordered to repay all loans which might be outstanding against any of the foregoing, and each party was ordered to pay his or her attorney's fees.

On November 19, 1979, respondent filed a post-trial motion; and on March 13, 1980, the court entered an order modifying its original order regarding the division of marital property and maintenance. The court found the value of the marital home to be between $71,000 and $91,000, less capital gains taxes and selling expenses, and the value of the retirement fund at $4,740. The court found respondent's reasonable needs to be $1,500 per month and petitioner's reasonable needs to be $700 per month. The court found that the petitioner is without sufficient income to meet her needs and acquire sufficient education and job skills to find appropriate employment to allow her, during the remainder of her life, to maintain the standard of living established during a marriage of 27 years. The original order was modified to award petitioner $750 per month maintenance for five years. On April 3, 1980, respondent filed a second post-trial motion, on this occasion requesting that the order of March 13, 1980, the modified judgment order, be amended or in the alternative that a new trial be granted. On April 28, 1980, the court denied the post-trial motion of April 3, 1980, and on May 9, 1980, the respondent filed a notice of appeal.

The petitioner initially contends that the trial court has no authority to hear successive post-trial motions each filed within 30 days after the denial of the previous issue. She urges that since the notice of appeal in this cause was filed more than 30 days after the court's ruling on respondent's first post-trial motion, this court is without jurisdiction to consider this appeal.

Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) provides:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon ...


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