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In Re Marriage of Adams

OPINION FILED JANUARY 19, 1981.

IN RE MARRIAGE OF SALLY ADAMS, F/K/A SALLY ADAMS NOBLE, PETITIONER-APPELLANT, AND GEORGE NOBLE, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Sally Adams Noble (now Sally Adams) and George Noble were married July 16, 1965. Two children were born to the parties: Tracy, born August 25, 1968, and David, born March 16, 1970. On July 13, 1978, their marriage was dissolved. Pursuant to the judgment of dissolution, the wife was awarded permanent custody of the parties' two minor children. The judgment incorporated a property settlement agreement entered into between the parties on May 20, 1978. The agreement contained provisions regarding the division of property, maintenance and child support, custody and visitation of the children and certain miscellaneous matters.

With regard to maintenance and child support, the settlement agreement stated that the husband's yearly income was approximately $40,000 and the wife's current yearly income was $4,000. The agreement further provided that the husband agreed to pay the wife "for the support of herself and her minor children" $1,000 per month until her income equaled at least $15,000 per year, then reduced to $750 per month until her income equaled at least $25,000 per year, then reduced to $500 per month. The husband agreed that the "maintenance and child support" payments would be made until the last minor child of the parties was emancipated or had completed his or her college education as long as such child continued to permanently reside with the wife while completing college. The agreement stated that the parties intended the payments to be deductible by the husband on his income tax return and to constitute gross income to the wife on her income tax return.

During the period of their marriage, the parties occupied a home in Northbrook, Illinois. After dissolution, the wife and the two minor children continued to reside in the former marital residence. They later moved, leaving the residence vacant. The house was subsequently sold. With regard to the marital residence, which was held in joint tenancy by the parties, the settlement agreement, in relevant part, provided:

"* * * Wife shall have the right to retain the exclusive use and occupancy of the said premises until the sale of the premises which is intended to take place within two years from the date of this Agreement.

During the period of time that the Wife shall have exclusive use and occupancy of the matrimonial domicile, the Wife shall be solely responsible for the normal maintenance and upkeep costs of the aforesaid premises and appliances therein, and solely responsible for mortgage payments and tax and insurance payments as they become due.

Upon the sale of the matrimonial domicile, the net proceeds shall be equally divided between the parties, less expenses of the sale, repayment of an outstanding loan of $2,000 to parents of Wife, an outstanding loan of $1200 from the Northbrook Trust and Savings Bank, an outstanding loan of $1,430 against the Life Insurance policies, and any amounts due and owing either party for necessary repair work in contemplation of such sale for which the party has not been reimbursed."

On December 26, 1978, the husband filed a post-judgment proceeding to enforce provisions set forth in the parties' agreement concerning visitation with the parties' daughter. He requested that an attorney be appointed to represent the interests of the parties' minor children and that the wife be held solely responsible for costs incident to the former marital residence. On April 9, 1979, the court appointed an attorney to represent the minor child Tracy.

On January 30, 1979, the wife filed a response and counterpetition, requesting that the judgment be modified so as to reclassify payments designated as "maintenance and child support" in the parties' settlement agreement as only child support. She also requested that the husband be required to contribute one-half of the costs incident to the former marital residence, contribute one-half of the expenses of the children's private school education and pay an increase of 10% per year in child support payments.

On April 20, 1979, the wife remarried and on June 5, 1979, the husband filed a supplemental proceeding to have maintenance terminated and a figure set for child support. On July 5, 1979, the wife filed an amended counterpetition, in which she requested as additional relief that the husband be required to pay her attorney's fees and costs.

The affidavit by the wife in support of her counterpetition listed $555 in expenses directly attributable to the two minor children. Of the $555, $165 covered: clothing $100, education $20, medical $30 and personal $15. The amount of $390 was classified as "other expenses": entertainment $100, private lessons, sports and social activities $138.50, miscellaneous additional incidentals $51.50, and summer camp $100. The affidavit also listed $2420.25 in expenses other than those directly attributable to the children: mortgage $427.75, taxes $88.25, insurance $10.10, utilities $130, food $450, transportation $70, auto insurance $24, personal clothing $100, medical $20, miscellaneous: car repair bills $87.77, telephone $100, furniture $100, sundry personal expense $50, miscellaneous additional incidentals $100, loan payments $562.38, and vacation $100.

On appeal, the wife argues that, exclusive of $190 personal expenses, 43% of her total household expenses of $2420.25, i.e., $959, is attributable to the children.

Before any testimony was taken, the husband voluntarily consented to dismissal of his petition to enforce visitation provisions of the parties' agreement.

The wife testified that at the time of the dissolution of the marriage she was employed at an annual salary of $4000 and that at the time of the hearing she was earning an annual salary of $14,400. She further testified that the needs of the two minor children had increased since the date of the dissolution of the marriage, due to an increase in the cost of the children's clothing because they had grown and an increase in the cost of living. She also testified that there had been an increase in the cost of utilities, insurance, transportation, mortgage payments, taxes and car expenses since the date of ...


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