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In Re Marriage of Petramale

OPINION FILED DECEMBER 15, 1981.

IN RE MARRIAGE OF MARGUERITE E. PETRAMALE, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND DONALD L. PETRAMALE, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


APPEAL from the Circuit Court of Du Page County; the Hon. KEITH LEWIS, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

This is an appeal by the petitioner, Marguerite Petramale Steindl, from those portions of the judgment of dissolution entered by the Circuit Court of Du Page County which related to the distribution of marital property. Respondent, Donald L. Petramale, cross-appeals that portion of the judgment ordering child support. Mr. Petramale moved to dismiss petitioner's appeal, and we ordered the motion taken with the case. Subsequent to the filing of the notices of appeal, respondent petitioned the trial court to modify the award of child support due to changed circumstances. The court dismissed his petition, and respondent appeals that order. The cases have been consolidated in this court.

Respondent and petitioner were married in 1955, and four children were born of the marriage. Respondent left the marital home in October 1977, and petitioner filed for a petition of dissolution on March 3, 1978.

At the December 1979 hearing, respondent testified that he was self-employed as an insurance salesman and broker and that he also served as a director of a savings and loan institution for which he received a $300-per-month attendance fee. Respondent had, previous to the time of trial, also, engaged in a photocopy service and supply venture known as PEP Supplies, but he testified that the business suffered a financial reverse in 1978 and that it had generated very little income in 1979. Petitioner attempted to show that the respondent was involved in a competing photocopy supply enterprise, D & D Copiers, by introducing the testimony of former customers of the first venture to the effect that their accounts were now serviced by D & D Copiers and that Mr. Petramale gave out a D & D Copiers business card and had responded to a phone call to D & D Copiers. Respondent denied ownership in any copy supply business and denied receiving any money from such a business in 1979 except that which was owed him from the 1978 activities of PEP Supplies.

Petitioner had been a homemaker for much of the 24-year marriage. She testified that, although she had had full-time employment in the past, at the time of the hearing she was a part-time waitress earning approximately $65 to $80 per week. Her ability to work full-time was impeded by the needs of the one unemancipated child of the marriage, a 10-year-old boy.

Respondent and petitioner owned various pieces of real estate during the marriage: the marital residence in Bloomingdale, Illinois, which had a mortgage balance of approximately $78,000 at the date of the hearing; a condominium in Longboat Key, Florida which had been sold in February 1979, generating net proceeds of $15,000; and an apartment building in Glendale Heights, Illinois which had also been sold in 1979, producing $42,000 after payment of the outstanding mortgage.

The parties maintained numerous accounts in several financial institutions. Petitioner introduced evidence which showed that respondent had prior to the hearing, withdrawn a total of almost $100,000 from those accounts. But respondent testified that he had paid petitioner over $70,000 since her petition for dissolution was filed. This sum included money paid for the mortgage and utilities on the marital home.

The trial court entered its judgment for dissolution on March 7, 1980. It found, inter alia, that respondent had demonstrated a capacity to earn from $30,000 to $50,000 per year and ordered $150 per week child support to be paid to the petitioner, in whom custody of the minor child was placed. Maintenance and attorney's fees were denied both parties. All money held during the marriage in accounts at four named savings and loan associations was found marital property and ordered to be divided equally. The court ordered that the marital home in Bloomingdale be sold and the proceeds shared equally, finding that its fair cash value was between $140,000 and $190,000 with an outstanding mortgage balance of $45,000. The proceeds from the sales of the real estate in Florida and of the Glendale Heights apartment building were to be divided in equal shares.

Prior to entry of the judgment order, petitioner moved the trial court to clarify its finding that the marital property included "all money held during the marriage by the parties" in accounts at four named institutions. She alleged that she was uncertain of the court's valuation of the accounts, i.e., whether the court intended that the parties share the balances remaining at the date of the hearing (she alleged there was "little, if any" sums) or the balances prior to the husband's withdrawals between 1977-1979. The trial court ordered that the finding was based "upon the evidence at trial and clarification is not required."

Petitioner's post-trial motion for reconsideration, or in the alternative for a new trial, was denied on March 17, 1980. On April 3, 1980, she moved for a rule to show cause why respondent should not be held in contempt for his failure to comply with certain portions of the judgment order, including the provision that the savings accounts of the parties be divided equally. The trial court ordered that respondent turn over certain items of marital property on pain of a contempt citation but made no mention of the division of the savings accounts.

On April 16, 1980, petitioner filed her notice of appeal in this matter. On April 23, 1980, respondent's attorneys were personally served with the notice of appeal. On May 2, 1980, respondent filed his notice of cross-appeal. Five days later, he filed a motion to dismiss petitioner's appeal on the basis of estoppel. We ordered the motion taken with the case.

On August 8, 1980, respondent filed a petition in the trial court seeking a modification of the decree of child support. In the petition, he alleged that he was required to pay $150 per week child support pursuant to the judgment; that his weekly income was $395 at the time judgment was entered; that subsequent to the entry of judgment his income was reduced to $251 per week; and that the reduction in income constitutes a substantial change in circumstances warranting a modification in the amount of child support. Petitioner filed a motion to dismiss the petition, alleging that the trial court lacked jurisdiction in the matter because an appeal and cross-appeal had been filed and the amount of child support was at issue in the cross-appeal. The trial court granted the motion to dismiss on January 12, 1981. Respondent filed a timely notice of appeal.

I

We turn first to the appeal by the respondent of the trial court's dismissal of his petition to modify the judgment granting child support. Although the respondent had alleged a substantial change in circumstances, the trial court granted the ...


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