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In Re Marriage of Dwan

OPINION FILED AUGUST 24, 1982.

IN RE MARRIAGE OF MARY J. DWAN, PETITIONER-APPELLEE, AND FRANCIS A. DWAN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Charles J. Grupp, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

On August 20, 1981, the marriage of Francis and Mary Dwan (Frank and Mary respectively) was dissolved and the marital property was apportioned. Frank appeals, contending that: (1) the trial court's award to Mary of $2,500 per month in unallocated maintenance and child support was excessive, contrary to the evidence and an abuse of discretion; (2) the trial court's finding and order awarding Mary $56,000 in alleged support and maintenance arrearages was contrary to the evidence; (3) the trial court abused its discretion in ordering Frank to pay an excessive amount of attorneys fees — $12,896.90 — to Mary's attorneys; and (4) the trial court erred in entering a judgment prepared by Mary's counsel which contained orders on issues not presented to the trial court.

For the reasons which follow, we affirm.

Mary and Frank were married on April 12, 1958. Their marriage produced five children, two of whom were minors at the time of dissolution: Martin, aged 17, and Colleen, aged 14. The parties stipulated that Mary should have custody of the minor children. Mary, the minor children and a third child, Guy Francis, aged 18, resided in a house which Frank had conveyed to Mary in 1977. The house, therefore, was owned by Mary at the time of dissolution and was not apportioned as marital property.

Mary first filed for divorce on October 12, 1972, and the parties separated at that time. The couple attempted to reconcile on numerous occasions, but all such attempts were futile and the matter proceeded to trial on March 10, 1981.

Mary, aged 44, had a high school diploma and one year of additional schooling in a training program for medical secretaries. She was employed as a hostess in a restaurant. Her gross income was $250 per week, her net income was $200 per week. She claimed monthly expenses of $4,400 and one outstanding debt of $36,000 which she had borrowed from a family friend to support her family during the course of her separation from Frank.

Frank, aged 48, is a board eligible orthopedic surgeon with a subspecialty in spinal surgery. According to his tax returns, Frank practiced medicine in Ottawa, Illinois, during 1973, 1974 and 1975, deriving gross incomes of $40,000, $115,000 and $150,000 respectively. His adjusted gross incomes for these years were $21,000, $76,068 and $106,731 respectively.

For the first three months of 1976 Frank was hospitalized for a drug abuse problem at MacNeal Hospital in Cicero, Illinois. In the latter part of that year he moved to Jacksonhole, Wyoming, where he became a staff physician for a ski resort. Shortly thereafter Frank broke his hip in a skiing accident. He worked intermittently until July 1978, when he enrolled in a training course in spinal surgery at New York Orthopedic Hospital. According to his tax returns, his taxable incomes for 1976, 1977 and 1978 were $34,724, $4,550 and $14,263 respectively. The record does not reflect his gross incomes for these years.

Upon completion of his training course in spinal surgery, in July 1979, Frank opened a practice in Sydney, Montana. In 1980, his gross receipts were approximately $150,000 and his adjusted gross income, as reflected on a "draft" of his 1980 tax return, was $36,401. In 1981, his gross receipts as of March 2 totaled $24,856. Frank claimed monthly expenses of $6,268 and outstanding debts of $125,575, including $68,797 in back taxes for the year 1975.

Pursuant to Mary's initial petition for divorce filed in 1972, the trial court had ordered Frank to pay to Mary $1,000 per month in temporary maintenance and child support. This order was subsequently modified in 1979 to require Frank to pay the greater of either 40% of his net income (where net income was defined as income less taxes and business expenses) or $1,250 per month. The temporary maintenance and child support orders remained in effect until the judgment of dissolution was entered.

At the hearing on March 10, 1981, Mary testified that Frank was $58,427 in arrears on payments due under the trial court's temporary maintenance and support orders. On cross-examination, she acknowledged that during the couple's periods of reconciliation Frank would pay some of the bills and share the household expenses, but she claimed that she gave him credit for such payments in her calculation of the arrearage. Mary kept the record of Frank's payments "in her head."

Frank conceded that he was approximately $15,170 in arrears. He asserted, however, that he had paid the balance of the amounts due under the temporary orders either to Mary or to third parties on her behalf. To substantiate his testimony, Frank produced four cancelled checks totaling $2,005 which had been drawn on his account in 1976 and which were paid to the order of various third parties. One of the checks was signed by Mary, the other three were signed by Frank. The record does not contain any cancelled checks paid to the order of Mary. The record does contain an agreed order of court dated April 25, 1974, which states that as of that date Frank was current in his temporary maintenance and support payments. Mary testified that she had agreed to the order because at the time the couple were attempting to reconcile. She asserted that Frank was actually $3,250 in arrears in 1973 and that he had made no payments to her in 1974.

The trial court, in rendering its judgment, ruled that Frank was not entitled to credit against his alleged arrearage for payments he made to third parties. The trial court found that Frank was $56,000 in arrears and directed him to make arrearage payments to Mary at the rate of $8,000 per year for seven years. The trial court also ordered Frank to pay $2,500 per month in unallocated maintenance and child support. The maintenance and child support payments were deductible from Frank's gross income and includible in Mary's. Additionally, Frank was to defray the cost of any extraordinary medical expenses incurred on behalf of the three children then residing with Mary. Frank was also directed to pay for the ...


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