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In Re Marriage of Johnson

OPINION FILED APRIL 27, 1982.

IN RE MARRIAGE OF SHIRLEY JOHNSON, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND EUGENE G. JOHNSON, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


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

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 1, 1982.

We herein consolidate two appeals. Shirley Johnson petitioned for dissolution of her marriage to Eugene G. Johnson. Final judgment for dissolution was entered on April 21, 1980. Respondent Eugene G. Johnson appeals from the maintenance awarded petitioner and the terms of the property settlement, and alleges errors by the trial court in considering affidavits in lieu of evidence. Petitioner cross-appeals the maintenance awarded her and the terms of the property settlement. Subsequent to the filing of the appeal and cross-appeal, petitioner brought a post-decree proceeding seeking a money judgment for arrearage in temporary support which accrued prior to the entry of the judgment of dissolution of marriage. On July 1, 1981, judgment was entered in favor of petitioner in the amount of $10,489.54 ($1,489.54 due as temporary support for the period through August 13, 1979, pursuant to a judgment entered October 31, 1979, and $9,000 due as temporary support for the period from August 13, 1979, to April 21, 1980, the date of the judgment of dissolution). Respondent appeals that judgment and the trial court's denial of respondent's motion to strike petitioner's reply in the post-decree proceeding.

Eugene and Shirley Johnson were married in 1951 and lived together until their separation in July 1977. During the marriage the parties enjoyed a middle to upper-middle class life style. They have two adult children. Both parties were 53 years old and in relatively good health at the time of the trial. Petitioner has a bachelor's degree in psychology from the University of Illinois. She was unemployed through most of the marriage, until approximately eight years prior to trial when she began conducting preliminary interviews in the personnel field. She was employed at this job one day per week and earned $2,109 in 1978. There was conflicting testimony as to her employment potential. One of respondent's witnesses was a director of employee relations at a local hospital who testified that there were numerous opportunities in the personnel field for someone with petitioner's qualifications. Salaries for these positions ranged from $13,000 to $18,000 per year. Petitioner testified that although she did not think she could work full-time because she had not done so in 28 years, she might be able to work two or three days a week. She also testified that there were very few job openings which were appropriate for her and for which she was qualified. Petitioner's original affidavit indicated that she had net yearly expenses of $25,354. Her amended affidavit, filed after completion of the trial, listed those expenses as $21,711. The trial court ruled that her life style called for expenses of more than $2,000 per month.

Respondent is employed by Johnson and Genrich, Inc. (J&G), an executive recruiting firm, and Metropolitan Business Reports, Inc. (Metro), a credit reporting firm. Both corporations were organized and operated by respondent. He owns 100% of the J&G stock and 24% of the Metro stock. The remaining 76% of the Metro stock is owned by J&G. Respondent, therefore, effectively owns both firms in their entirety. His Federal income tax returns show his gross income in 1978 as $37,000. Between 1974 and 1978, his income varied from a low of $30,000 in 1977 to a high of $50,000 in 1975. Much of the confusion at trial regarding his income can be attributed to his tax returns having been prepared on a calendar year basis while his wholly owned corporations operated on a fiscal year ending March 31.

After awarding each party household furnishings, an automobile and cash-on-hand, the trial court valued and divided the remaining property as follows:

Non-marital property to petitioner:

Savings accounts $21,714.77 Stock 851.50 Credit for forgiveness of debt due petitioner's father 6,503.16 __________ $29,069.43

Marital property to petitioner:

Marital residence $87,000.00 Savings accounts 41,347.77 Securities 36,149.08 ___________ $164,496.85

Marital property to respondent:

J&G corporate stock $145,000.00 Metro corporate stock 45,834.00 Respondent's interest in profit-sharing plan 34,166.00 ___________ $225,000.00

The court also ordered respondent to execute a promissory note to petitioner for $36,754. This amount consists of a $30,251 "equalizing note" designed to give the parties equal property settlements, and a $6,503 credit for the amount of petitioner's non-marital contribution to settlements, and a $6,503 credit for the amount of petitioner's non-marital contribution to the marital residence. The note provides for an annual interest rate of 12% and is payable in 144 monthly payments. The court also determined that petitioner lacked sufficient property, including marital and non-marital property apportioned to her, to provide for her reasonable needs and was unable to support herself through appropriate employment and was otherwise without sufficient income. The court therefore ordered respondent to pay petitioner permanent maintenance of $900 per month.

Petitioner's post-decree proceeding was based on a September 19, 1977, court order directing respondent to pay petitioner temporary support of $250 per week. In May 1979, petitioner filed a motion seeking relief for arrearage in the payment of that support. On August 13, 1979, respondent filed a petition seeking modification of the temporary support order based on his lack of funds. On October 31, 1979, the trial court (per Judge Burks) entered judgment against respondent for $1,850 for arrearage in temporary support payments through August 13, 1979. No specific action was taken concerning respondent's petition seeking modification of the temporary support order. Respondent's motion to vacate or stay enforcement of the October 31 judgment was denied.

Final judgment for dissolution of marriage was entered by Judge Burks on April 21, 1980. No reference was made to the $1,850 judgment or other unpaid temporary support in this final judgment. However, after allocating marital and non-marital property between the parties and providing ...


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