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In Re Marriage of Theeke

OPINION FILED DECEMBER 22, 1981.

IN RE MARRIAGE OF JANE A. THEEKE, PETITIONER-APPELLEE, AND JON A. THEEKE, RESPONDENT-APPELLANT.


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

PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

After 16 years of marriage, Jon and Jane Theeke (hereinafter "Jon" and "Jane" for ease in identification) obtained a divorce in October 1979. Jane was awarded custody of their three children, Jonny, age 14, and twins, Jennifer and Janiece, ages 9. Jane was also awarded exclusive possession of the marital home for a period of 10 years and 60% of the net proceeds from the sale of the home. The other significant marital asset, Jon's profit-sharing plan, was divided equally between the parties. Jon appeals the award of child custody, the division of marital property and the award of attorney fees.

The issues with which we are presented are whether: (1) the trial court committed error in making certain evidentiary rulings; (2) the award of child custody to Jane was against the manifest weight of the evidence; (3) the division of marital property and child support was against the manifest weight of the evidence; and (4) Jon was improperly ordered to contribute to Jane's attorney fees.

During the trial on the issue of child custody, Janiece and Jennifer testified, in camera, that they preferred to live with their mother. They believed that Jon and Jane both loved them; both parents helped them with their homework and attended Parent Teacher Night; Jane did the cooking, laundry, shopping and house cleaning, although sometimes Jon cooked; and when something bothered them, they usually talked it over with their mother. Jon spoke to them about custody on several occasions. Once he told them, "If you live with your mom, I may have another family and I may not want you anymore." They got along with their brother, Jonny, and desired to continue living with him.

Jonny also testified in camera. He believed both parents loved him. He preferred to live with his father. He got along with his sisters except for an occasional fight. He loved his sisters and wanted to continue living with them. He did not know whether it would be hard for his sisters to live with his father.

At trial, Dr. Monte J. Meldman, a certified psychiatrist and the author of four books, testified on Jane's behalf. He interviewed her in August 1978, and subsequently had her perform a psychological test known as the Minnesota Multi-Phasing Inventory. The test indicated that Jane had no abnormal psychological problems and had a good ability to manage things.

James Hess testified that he was principal of Central School, and that he had known the Theekes for about five years. Both parents were actively involved in a number of school activities.

Betty Hauer testified that she was employed as a case worker by Cook County. Her duties required her to visit the home, interview the parents and make recommendations as to child custody based on her observations. She considers a number of factors in determining which parent is best able to serve the interests of the children, including the manner in which the parent handles the divorce-custody matter with the children. Based on her interviews with the Theeke family and their neighbors, she concluded though both Theekes were loving parents, Jane was better qualified for running the household and taking care of the children's everyday needs.

Jane testified that she believed she was fit to have custody of the children because she had always been responsible for their care. Jon was incapable of adequately taking care of the children because of the demanding nature of his job.

Raymond Russo, coach of Jonny's baseball team, testified in Jon's behalf. He knew the Theekes through their involvement in Little League Baseball. Jane attended about 10% of Jonny's baseball games and practices until 1979 when the girls began playing on a team. The paternal grandparents, Leona and Patrick Theeke testified that if their son was awarded custody of his children, they would immediately retire and move so that they could help take care of the children. Leona acknowledged that Jane was a loving mother and would be a fine custodial parent.

Jon testified that he loved his children and believed that he was more capable of bringing up the children than Jane. He had not treated his girls any differently than he treated Jonny.

At the conclusion of the trial, the court found that both parents were fit to have custody of the children, but that it was in the best interests of the three children for custody to be awarded exclusively to their mother.

The following evidence was heard at trial on marital property distribution. Jon averred that his monthly expenses added up to a total of $1,140. His sole indebtedness amounted to $5,539. His gross earnings were $26,225 in 1978 and $29,050 in 1979. Jane testified that she obtained her real estate broker's license in 1973. In 1974, she made between $9,000 and $10,000. In 1975 she earned between $13,000 and $14,000 and in 1976 she made between $16,000 and $18,000. The money she earned she spent to help support the family. She and the three children have current monthly expenses of approximately $2,000. Her business related debts total $5,923. On the final day of the trial Jane was employed by Safeguard Business Systems and was receiving a loan of $1,900 per month which was to continue for a six month period of time. In the event that she was terminated prior to the end of the six-month period, the total loan amount received during that period of time would be forgiven. If her employment extended past six months, she was to repay the salary advanced her. The only marital assets of significant value were the family's home, having a net worth of $70,250 and Jon's Sears Roebuck Profit & Savings Plan, having a value of $11,300.

The court awarded Jane and the three children the exclusive right to use and possess the marital home for a period not to exceed 10 years at which time the twins would have reached the age of majority. The net proceeds derived from the sale of the home in the future was to be divided, with 60% to go to Jane and 40% to Jon. Jon was ordered to pay child support equal to 35% of his net take-home pay, but not less than $602 per month. The pension profit-sharing plan was split equally between Jon and ...


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