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Vyskocil v. Vyskocil





APPEAL from the Circuit Court of Cook County; the Hon. RENE GOIER, Judge, presiding.


Rehearing denied September 16, 1981.

This appeal is taken from an order of the circuit court of Cook County modifying a judgment entered by a Minnesota State court. On appeal, these contentions are presented for review: (1) the court erred in ignoring the agreement of the parties that provided for modification; (2) the court erred in the terms specified for the payment of support arrearage; and (3) the court did not properly apply the terms of the judgment in its order setting the provisions for life insurance. The pertinent facts follow.

Mary Jennette Vyskocil (petitioner) and Leonard Vyskocil (respondent) were granted a divorce by a Minnesota State court on June 19, 1969. The judgment incorporated a written agreement of the parties providing for child custody, visitation, alimony, modification of alimony, division of property and attorneys fees. The agreement provided in pertinent part that respondent would pay petitioner $660 a month until she remarries, at which point he would pay $250 a month as child support. He also agreed to pay additional alimony in an amount equal to one-third of all salary increases over and above $25,000 per year. Modification of defendant's obligation to pay alimony and support payments was based in part on petitioner's "outside income." Outside income included compensation, dividends or interest received by petitioner from any corporation in which her family has a financial interest. It excluded personal earnings from employment and receipts from the trust fund established by her father. If respondent has gross compensation of $25,000 or less a year and petitioner has outside income of more than $200 per month, then respondent was entitled to reduce alimony dollar for dollar for every dollar of petitioner's outside income that was more than $200 per month. If respondent's gross compensation exceeded $25,000 per year, then petitioner could receive an additional $20 per month in outside income for each $10,000 of respondent's gross compensation over $25,000. If respondent's gross compensation was $35,000 per year, then petitioner could receive outside income of $500 per month before the stated reductions would take effect. If respondent's gross salary exceeded $35,000 per year, petitioner's outside income still remained fixed at $500 per month.

The decree also provided that respondent was to keep in full force and effect, in all events and at his cost, a life insurance policy on his life in the amount of $100,000 with petitioner as beneficiary.

Petitioner registered this judgment in Illinois in 1977 and then filed a petition seeking to establish arrearages, maintenance of a life insurance policy, payment of proceeds from the sale of a parcel of property, and attorneys fees and costs. Respondent, who has since remarried, counter-petitioned for a reduction on the amount of support he is to pay, alleging a substantial change in circumstances.

At trial, respondent testified that he has paid approximately $100,000 under the judgment and additional amounts for nursery school and private school for the parties' child, Leslie. He stated that his current home is in Omaha, Nebraska, and cost $107,000, with a present mortgage of $86,000. His yearly income is $62,000. He also indicated that his present wife does not contribute financially to the mortgage payments and further that he has a monthly deficit after paying alimony of $603.16, which he makes up each year by using the refund he gets from his income tax.

Upon cross-examination, petitioner introduced an exhibit which showed $98,965 in unaccounted-for monies of respondent for the past 10 years. Tax refunds amounted to $46,065, assets from the sale of the marital home and Connecticut property totaled $33,000, and net proceeds from the sale of his Buffalo Grove, Illinois home, less his downpayment on the Omaha home, equaled $19,900. Respondent also testified that the Minnesota decree required him to carry a life insurance policy which was in existence at the time of the divorce; however, it expired in 1977, and he did not replace it.

Petitioner testified that she purchased a home in Colorado for $48,500 in 1977. Her mortgage was $45,000 and the home has a current value of $70,000. She owns an eight-unit building in California for which she paid $75,500 in 1974. Her estimate of its market value is $90,000 to $100,000, and her gross receipts for rents are approximately $14,000 a year. She receives $120 a month from oil royalties and is the beneficiary of a trust fund from which she receives $2,000 a year. She has no savings, stocks or bonds. Her debts include the mortgages on her home and apartment building, a monthly car note of $161 a month, a doctor bill of $350, $7,698.67 owed to her Massachusetts attorney and $4,296.47 owed to her Minnesota attorney.

At the conclusion of the hearing, the trial court determined that the Minnesota judgment should be modified. The court ordered that:

(1) alimony and support payments be reduced to $700 a month;

(2) respondent pay the arrearage of $15,631.76 at the rate of $300 a month; and

(3) the $100,000 life insurance policy should be maintained until ...

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