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Bellow v. Bellow

OPINION FILED MARCH 19, 1981.

SUSAN BELLOW, PLAINTIFF-APPELLEE,

v.

SAUL BELLOW, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. BALES, Judge, presiding. MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This case originated as a divorce action between Susan Bellow and Saul Bellow. In 1968, the parties entered into a property settlement in Illinois which was incorporated into the divorce judgment. Plaintiff filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 72) to set aside the property settlement agreement. In July 1974, the trial court entered an order setting aside the agreement. That decision was affirmed by this court in Bellow v. Bellow (1976), 40 Ill. App.3d 442, 352 N.E.2d 427.

Plaintiff then petitioned for temporary alimony and temporary child support. The trial court denied defendant's motion for summary judgment which was based on plaintiff's failure to restore $130,000 she previously had received under the rescinded settlement agreement. The trial court also awarded temporary alimony and temporary child support, while holding defendant in contempt of court. This court affirmed the alimony and child support awards, postponed consideration of the restitution issue and reversed the finding of contempt. (Bellow v. Bellow (1979), 72 Ill. App.3d 608, 391 N.E.2d 29.) At the same time, plaintiff moved for an award of permanent alimony, attorneys' fees and for leave to change residence to New York with the minor child, Daniel. Defendant cross-petitioned and again moved for judgment on the restitution issue. The trial court denied defendant's motion for summary judgment and for custody but granted plaintiff's petition for leave to remove to New York.

In August 1978, the trial court awarded alimony in gross of $665,552.73 and ordered payment in the amount of $500,000, after allowing credits of $165,552.73. The following month, the trial court awarded attorneys' fees in the amount of $200,000. The court simultaneously increased child support from $650 to $800 per month.

Defendant filed a motion for reconsideration, with supporting exhibits, and also submitted a memorandum of law setting forth possible tax consequences of the trial court's order. In March 1979, the trial court denied defendant's motion and struck the supporting exhibits and the tax memorandum from the record.

Defendant appeals from the awards of alimony, child support and attorneys' fees, as well as the trial court's denial of his motion for reconsideration. The defendant additionally challenges the court's striking the tax memorandum and financial exhibits from the record. He raises the issues of (1) whether the trial court's alimony and child support awards were based on the proper criteria and are in the proper amounts; (2) whether the trial court's award of attorneys' fees was excessive and an abuse of discretion; and (3) whether the trial court erred in refusing to require plaintiff to restore funds she received under the vacated 1968 property settlement agreement.

Plaintiff and defendant were married December 10, 1961. Seven years later, after five years of marital living together, they were divorced. Defendant earned approximately $6000 during the first year of their marriage. The couple initially resided in Tivoli, New York.

In 1962, defendant began employment with the University of Chicago, as an instructor, at a salary of between $14,000 and $16,000. The first marital residence in Chicago was with plaintiff's parents. During 1964, their only child, Daniel, was born. Subsequently, an apartment was rented near the University of Chicago.

Between 1961 and 1964, defendant produced the novel Herzog, for which he received a $10,000 advance. Additional apartment space was acquired to facilitate defendant's work on the novel. The book was published in the fall of 1964, becoming a best-selling novel and raising defendant's adjusted gross income in that year to $89,670.

In 1965, plaintiff and defendant moved to a cooperative apartment which they purchased for a $15,000 down payment and a $20,000 mortgage. Defendant's income for the next 3 years increased due to royalties from the book Herzog.

The marital separation occurred in late 1966, 5 years after plaintiff and defendant were married. Plaintiff and her son continued to live in the family apartment while defendant paid the mortgage. In 1967, Daniel Bellow began nursery school. In the same year, he began receiving medical treatment.

Plaintiff began work at the Adlai Stevenson Institute and in 1968 she became employed by the Bulletin of Atomic Scientists. Two years later, she attended the University of Chicago in pursuit of a master's degree in urban planning. During that time, she was not employed. In 1973, she received the degree and the next year she began working for the State of Illinois.

Plaintiff filed for divorce in September 1967, and judgment was entered in February 1968. The judgment incorporated a property settlement agreement. The agreement provided that, in lieu of alimony, plaintiff was to receive $130,000 in periodic payments.

In June 1969, plaintiff filed a section 72 petition (Ill. Rev. Stat. 1967, ch. 110, par. 72) to vacate the property settlement. The petition alleged that plaintiff was ready and willing to return property received in accordance with the agreement. In December 1969, plaintiff filed an amended petition which did not contain the tender of property. At that time, approximately $30,000 and one-half interest in the marital home had not been returned. Throughout the litigation and until 1974, plaintiff received and accepted payments under the original property agreement.

In July 1974, the trial court entered an order setting aside the 1968 settlement agreement. The court found financial misrepresentations made by defendant. It based its finding upon the fact that defendant concealed from plaintiff the joint tenancy ownership of the parties' apartment and bank account. Defendant also was found to have underestimated his 1968 income in a letter written by his attorneys to plaintiff's attorneys. The trial court's judgment was affirmed by this court and remanded for a hearing to determine plaintiff's right to various property and allowances. Bellow v. Bellow (1976), 40 Ill. App.3d 442, 352 N.E.2d 427.

On remand, the trial court denied defendant's motion for summary judgment and entered an order directing him to pay equitable alimony of $1500 per month as long as plaintiff was working and $2500 in the event she became unemployed. The order went on to direct defendant to pay $650 per month for child support, in addition to Daniel's medical and educational expenses. The court also held defendant in contempt of court. This court affirmed the award of temporary alimony and child support but reversed the finding of contempt. Bellow v. Bellow (1979), 72 Ill. App.3d 608, 391 N.E.2d 29.

In July 1978, plaintiff filed a motion for hearing on permanent alimony, attorneys' fees, and for leave to remove Daniel Bellow to New York. Defendant filed a cross-petition for custody and for summary judgment based on plaintiff's failure to restore property received under the vacated agreement. The cross-petition was denied.

The hearing on plaintiff's petition for permanent alimony was held in July 1978. Plaintiff presented joint tax returns for 1967 and 1968, a summary of transactions involving a joint savings account for years 1963-68, the documents of title for the cooperative apartment, and an estimate of expenses for herself and Daniel. Evidence presented by both sides indicated the following adjusted gross income and net spendable income for the years 1963-68:

Year Adjusted Gross Net Spendable Income Income

1963 $ 16,852.00 Not available 1964 $ 89,670.00 Not available 1965 $ 79,157.00 $ 93,379.57 1966 $ 90,085.00 $ 76,020.00 1967 $127,368.00 $102,017.00 1968 $ 92,086.00 $105,303.56

Plaintiff testified the annual family budget prior to the 1966 separation was about $40,000. She also stated the expenses for herself and Daniel in 1967 amounted to $31,000. The basis of plaintiff's argument was that the cost of living index in 1978 for New York was 193.7 compared with the figure of 100 for 1967. It was her argument that current needs equal either $31,000 or $40,000 multiplied by the index factor. She testified her rent in New York would be $780 per month, or $9,360 per year, and expenses for Daniel would be almost $1000 per month, or $12,000 per year.

Plaintiff stated she would be able to obtain a job in New York sufficient to maintain herself. She also disclosed that she had retained more than $20,000 from the 1968 settlement agreement proceeds. These monies, she testified, were to be set aside for savings.

Plaintiff and defendant differed on the issue of defendant's assets as of 1978. In their presentation, plaintiff's counsel listed defendant's assets, totaling $992,884, as follows:

Securities ............................................... $450,000 Real estate investment with Samuel Bellow ................ 35,000 Real estate investment with Maurice Bellow ............... 200,000 Real estate investment with Maurice Bellow (foreclosed) ........................................... 40,000 Kasuba real estate investment (foreclosed) ............... 25,000 Exchange National Bank ................................... 120,102 American National Bank ................................... 92,782 Morgan Guaranty Bank ..................................... 30,000 ________ Total ............................................... $992,884

Defendant testified that $265,000 of the assets listed, including two real estate investments entered into with Maurice Bellow and the Kasuba real estate investment, were uncollectible. Defendant also pointed out certain duplications made in the plaintiff's list. Specifically, plaintiff's own exhibit, a statement from the Exchange National Bank, indicates the account includes 100 shares of IBM stock valued at $25,725. Another exhibit offered by plaintiff was a list of municipal bonds held in defendant's account at the American National Bank which indicated securities held with a value of $55,000. The stock held at Exchange National Bank and the securities held at the American National Bank were included in the value of holdings at the two banks but they were also included in the general list of securities valued at $450,000.

The other duplication concerned the $50,000 demand note from Maurice Bellow. The note was included in both the $200,000 Maurice Bellow investment item and the assets held at the Exchange National Bank.

An adjusted list of defendant's assets, containing no duplications, amounts to approximately $600,000 and includes the following items:

Securities ............................................. $450,000 Real estate investment with Samuel Bellow .............. 35,000 Real estate investment with Maurice Bellow (worthless) .......................................... ____ Kasuba real estate investment (worthless) .............. ____ Exchange National Bank ................................. 44,377 American National Bank ................................. 37,782 Morgan Guaranty Bank ................................... 30,000 ________ Total .......................................... $597,159

In August 1978, the trial court awarded plaintiff alimony in gross in the amount of $665,552.73. There was an allowance credit to defendant of $83,302.73 for wages earned by plaintiff since 1968 and another of $82,250 for previous payments by defendant. A judgment order was entered in the amount of $500,000 on October 11, 1978. At the same time, the court increased child-support payments to ...


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