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In Re Marriage of Goldstein

OPINION FILED JUNE 25, 1981.

IN RE MARRIAGE OF MITCHELL GOLDSTEIN, PETITIONER-APPELLEE, AND GAYLE GOLDSTEIN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. MARION E. BURKS, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 14, 1981.

Appellant Gayle Goldstein is the respondent in a petition for dissolution of marriage (Ill. Rev. Stat. 1977, ch. 40, par. 401 et seq.). After a protracted trial, a judgment for dissolution was entered March 21, 1980. Respondent was awarded maintenance of $200 per month for 12 months, $395.88 as petitioner's share of an outstanding debt, and $750 for attorney's fees. Respondent appeals, attacking the subject matter jurisdiction of the circuit court and claiming error in the court's determination of marital property. Respondent was not allowed to give evidence of the parties' premarital cohabitation and her financial support of the petitioner while he was a student. Respondent asks that this court characterize the petitioner's increased earning potential derived from his medical degree as marital property.

We affirm.

Mitchell and Gayle Goldstein were married on May 1, 1977. At that time Mitchell was a student at the Chicago College of Osteopathic Medicine. Gayle was employed as a teacher in Northbrook, Illinois. Mitchell was not employed. In 1978, Mitchell graduated. He applied for an internship at the Osteopathic Hospital in Miami, Florida. He was accepted, and in July 1978 Mitchell and Gayle moved to Florida. On August 31, 1978, Mitchell moved out of their leased apartment in Florida. Gayle, having resigned her teaching post in Northbrook, Illinois, had to seek employment in Florida. Mitchell leased another apartment and began his one-year internship.

During that period, on October 18, 1978, Mitchell filed, in the circuit court of Cook County, a petition for dissolution of the marriage. On December 1, 1978, Gayle responded to the petition and filed a counterpetition for legal separation. On February 9, 1979, Gayle filed a petition for temporary maintenance on the grounds that she was unemployed. She was awarded temporary maintenance of $300 per month. In May 1979, Gayle returned to Illinois. In June 1979, Mitchell returned to Illinois to begin a residency at Chicago Osteopathic Hospital.

The trial on the petition for dissolution began on November 8, 1979. Respondent challenged the jurisdiction of the court. Respondent said that the petitioner was not domiciled in Illinois. It was the intent of the petitioner and respondent to purchase a home and reside in Florida. Respondent claimed they had moved "lock, stock and barrel" to Florida in 1978. Petitioner denied this and introduced evidence of a driver's license and automobile insurance as manifesting his intent to retain an Illinois domicile. After the hearing in November, the court ruled that it had proper jurisdiction.

At the hearings on January 2 and February 27, 1980, respondent attempted to introduce evidence of premarital cohabitation. Respondent claimed that she had supported petitioner while he was in medical school. The extent of support was contradicted by the petitioner. He claimed that his parents had paid his tuition, bought his medical books, and paid his living expenses from the time he began medical school in 1974. He estimated that his parents had spent $40,000. Moreover, petitioner claimed to have maintained an apartment near his medical school.

On February 27, 1980, after the parties had filed affidavits of their assets, debts, present income and living expenses, the court held a hearing on marital property. It was determined that the Goldsteins had no real property. Personalty consisting of a car, furniture and household effects were all in the possession of the respondent. The bank account was depleted.

The court ruled that the respondent had not met the burden of proof required to overcome the statutory presumption against maintenance. But, the court awarded respondent limited maintenance of $200 per month for a one-year period. The court further required the petitioner to pay one-half of a Visa credit card debt which respondent stated had been used for living expenses when they settled in Florida. And, the court awarded respondent $750 toward her attorney's fees. Judgment was entered on March 21, 1980. Respondent appealed.

Respondent contends the trial court lacked subject matter jurisdiction because the parties were not domiciled in Illinois. Domicile is defined as the place where a person has his true, permanent home to which he intends to return whenever he is absent. (Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156, 51 N.E.2d 140, 144.) The question of domicile is largely one of intention, and to establish a new domicile a person must physically move to a new home and live there with the intention of making it his permanent home. Keck v. Keck (1974), 56 Ill.2d 508, 514, 309 N.E.2d 217, 220.

In the petition for dissolution, petitioner alleged that he was presently residing in Cook County, Illinois, and had resided in the State of Illinois for more than 20 years prior to the date of the petition. Further, the parties were married in Illinois. In her counterpetition, respondent alleged that she was presently residing in Cook County, Illinois, had resided in the State of Illinois for more than 20 years prior to the date of the filing of the counterpetition, that the marriage had taken place in Lake County, Illinois, and that at commencement of this action the parties were domiciled in Illinois.

The evidence shows that the parties went to Florida because the petitioner had been accepted for an internship at the Osteopathic Hospital in Miami, Florida. Though respondent claims that they moved "lock, stock and barrel" to Florida, this is not unexpected inasmuch as the only assets of the parties consisted of their household furnishings.

Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home. (Green v. Green (1976), 41 Ill. App.3d 154, 159, 354 N.E.2d 661, 667.) Whether or not a party has abandoned one residence ...


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