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In Re Marriage of Greenberg

OPINION FILED DECEMBER 21, 1981.

IN RE MARRIAGE OF HULBERT GREENBERG, PETITIONER-APPELLANT, AND JEAN GREENBERG, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. ALLEN F. ROSIN, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Hulbert Greenberg (petitioner) and Jean Greenberg (respondent) were married on June 14, 1953. They had two children, Ilene, age 22, and Julie, age 20, at the time of trial. Petitioner sued for dissolution of the marriage on December 14, 1977. After a hearing on May 21, 1980, the trial court awarded respondent temporary maintenance and attorneys fees. On June 17, 1980, the trial court granted a dissolution of the marriage on the grounds of mental cruelty after an uncontested prove-up (see Ill. Rev. Stat. 1979, ch. 40, par. 401(2)). After trial, marital assets were divided by the court in an order dated December 9, 1980. Subsequent hearings were held on the issue of attorneys fees resulting in an order entered March 13, 1981. Petitioner has appealed from all monetary decisions by the trial court.

I

Temporary Maintenance

Petitioner is self-employed in the practice of optometry. His income tax returns for 1977, 1978, and 1979, showed gross annual income of $30,295, $36,977, and $41,870 respectively. During 1979, petitioner contributed $4,802 toward his own Keogh retirement plan and purchased an automobile for approximately $9,000. Part of the automobile purchase price came from insurance funds.

Petitioner was then currently residing in the marital home in Flossmoor, Illinois. He noted his affidavit indicated a monthly net income of $2,200. Petitioner also testified to detailed expenditures for college education of his daughters. These expenditures were paid out of monthly income, savings, and proceeds from the sale of approximately $10,000 of bonds. Petitioner was aware that both daughters have their own savings accounts.

Respondent testified her affidavit of expenses listed "estimated" rental payments of $500 per month although her actual rent was then currently $150 per month. Similarly, her "estimated" utility expenditure was listed in her affidavit as $150 per month, whereas she currently paid nothing for utilities. Respondent testified these estimated expenses were those she expected to be paying in the near future when she moved into a new apartment. She stated she was then currently residing in the apartment of a friend's mother, but would soon have to move out. Respondent also testified she was sending $25 per month to each of her daughters. She also incurred personal expenditures of $200 per month for entertainment and $150 per month for clothing.

Respondent testified she is currently employed as a legal secretary at a gross salary of $275 per week. Her income was in excess of her expenses, allowing her to save $1,500. She owned stock, given her by her mother, valued at approximately $15,700. The dividends from these stocks went to help support her mother. Respondent stated she had also recently sent $250 to her younger daughter. The trial court allowed respondent $110 per week as temporary maintenance.

Petitioner notes the discrepancy between respondent's "estimated" and actual expenses and points out she has been able to save portions of her salary. Petitioner contends this ability to save money, combined with her "stock portfolio," establish respondent was financially capable of supporting herself.

Section 501(a)(1) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 501(a)(1)) specifically permits a moving party to receive temporary maintenance. In Bellow v. Bellow (1979), 72 Ill. App.3d 608, 610, 391 N.E.2d 29, this court stated "[a] temporary support order is primarily within the sound discretion of the trial court and, absent an abuse of discretion, this court will not reverse such an order." The trial courts> have "wide latitude" in this regard. See In re Marriage of Simmons (1980), 87 Ill. App.3d 651, 657, 409 N.E.2d 321.

• 1 We cannot say the instant award was an abuse of discretion. Although respondent was neither destitute nor unemployed, she was clearly living at a standard far below that which she enjoyed during her marriage. (See In re Marriage of Brenner (1981), 95 Ill. App.3d 100, 102-03, 419 N.E.2d 400.) Her earnings are far less than those of petitioner. Generally, "the manner in which the parties have been accustomed to live" should be considered as regards maintenance. (In re Marriage of Parello (1980), 87 Ill. App.3d 926, 934, 409 N.E.2d 461.) The trial court described the maintenance award as 20% of petitioner's net monthly earnings.

• 2 We find no discrepancy between respondent's actual and projected expenses which demonstrates an abuse of discretion by the trial judge. The fact that respondent's affidavit detailed projected and not actual expenses was adequately brought to the attention of the trial judge, as was respondent's contention that these estimated expenses would shortly become actual expenditures. Thus, this factor became a question of credibility which the trial judge was in the best position to determine. In addition, the ownership of stocks by respondent does not establish her as financially independent. Respondent should not be required to divest herself of assets or impair her capital in order to maintain herself. (In re Marriage of Thornton (1980), 89 Ill. App.3d 1078, 1088, 412 N.E.2d 1336.) We therefore conclude the temporary maintenance award was not an abuse of discretion.

II

Temporary Attorneys Fees

Section 508(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)) provides:

"The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney's fees and for the costs and attorney's fees necessarily incurred by the other spouse, * * *."

After respondent had been awarded temporary maintenance during the hearing of May 21, 1980, counsel for respondent orally requested an order for temporary attorneys fees. No petition for fees had been filed, but counsel for respondent stated he had performed approximately 20 hours of work and had been paid only costs. Counsel for petitioner argued such request was premature. The trial court awarded counsel for respondent $1,000 as temporary fees.

• 3 In our opinion this allowance was an abuse of discretion by the trial court. Although the award was made after the trial court had heard evidence as to the financial status of the parties, no petition stating the detailed services performed and the amount of fees claimed was ever presented to the trial court by counsel for respondent. This court has held that "the granting of attorney's fees is improper where no evidence is heard as to the items of service performed, or as to the basis of the amount requested or as to the reasonableness of the fees for such services." (In re Marriage of Brophy (1981), 96 Ill. App.3d 1108, 1120, 421 N.E.2d 1308.) The order for temporary attorneys fees is therefore vacated.

III

Marital Property

The marital property is:

A. The home in Flossmoor valued at $110,000 with mortgage of approximately $19,000.

B. Petitioner's automobile valued at about $9,000 and respondent's ...


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