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In Re Marriage of Mittra

OPINION FILED MAY 16, 1983.

IN RE MARRIAGE OF MINDIRA MITTRA, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND RAJ MITTRA, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:

This is an appeal by respondent Raj Mittra from a judgment of the circuit court of Champaign County ordering him to pay maintenance of $1,800 to petitioner monthly. The maintenance award was a part of the final judgment in the parties' dissolution proceeding. In this appeal respondent does not challenge the trial court's provision of custody, support, distribution of marital assets, or the fact of maintenance. Respondent challenges only the amount and duration of the maintenance award. We affirm.

Petitioner Mindira Mittra and respondent Raj Mittra were married approximately 23 years and had three children; two were attending college at the time of the dissolution. Custody of the third child was awarded to petitioner, and respondent was required to pay $250 per month for her support.

Petitioner is 46 years of age and is employed part-time as a teacher's aide. Her estimated salary as of June 1981 was $226 net per month. Petitioner had received a master's degree in history from the University of New Delhi (India) in 1957 but had never been employed in her field of study. Petitioner assumed the role of full-time housekeeper and mother during the parties' marriage. At the hearing on maintenance, petitioner testified that she was unaware of employment prospects and felt incapable of finding employment to use her degree.

Respondent is 49 years old and is employed by the University of Illinois as a professor of electrical engineering. He derives a substantial income from his profession and other consulting work and had managed to accumulate a significant amount of property during the parties' marriage. An affidavit filed by respondent lists only $3,398 net monthly as his income although respondent's tax returns for the years 1979 and 1980 show more substantial earnings. For the taxable year 1980, respondent and petitioner reported total taxable receipts of $82,170. Of this sum only $6,720 can be attributed to petitioner's employment, leaving respondent with a gross monthly income of approximately $6,287.

The expenses of the parties were significant, though neither party has challenged the reasonableness of the other's listed expenses. Petitioner's June 1981 affidavit of expenses and income shows monthly requirements of $2,325; respondent's estimate of monthly expenses totaled $2,940.

As a part of the final order of dissolution, each party also received substantial assets, some of which had income-producing potential. The trial court awarded the petitioner the marital home (equity $105,000), a stock portfolio (value $20,390), a $1,000 money market fund, checking and savings accounts (value $900), a 1976 Dodge Aspen (equity $2,500) and $25,000 in cash. Respondent received a house in Champaign (equity $20,000), two tax-deferred annuities (value $50,682), a University of Illinois retirement fund ($58,775 in contributions), a "T. Rowe Price Fund" valued at $20,145, other tax-sheltered investments of $8,000, a Buick Regal automobile (equity $1,000), and checking and savings accounts (value $600).

In support of respondent's contention that the trial court abused its discretion in the award of maintenance, he makes the following arguments: (1) The trial court based its maintenance award on speculation of his future income; (2) the trial court failed to consider all of petitioner's sources of income; (3) the trial court abused its discretion in failing to consider the temporary nature of respondent's consulting work; and (4) the trial court erred in not considering petitioner's employment potential.

• 1 Awards of maintenance under the Illinois Marriage and Dissolution of Marriage Act are governed by the criteria of section 504 of that Act. (Ill. Rev. Stat. 1981, ch. 40, par. 504.) Under this section, an award of maintenance may only be granted if the court finds that the spouse seeking maintenance: lacks sufficient property including marital property to provide for reasonable needs, and (1) is either unable to support herself through appropriate employment, (2) is the custodian of a child requiring in-home care, or (3) is otherwise without sufficient income. At bar, respondent does not challenge the trial court's award of maintenance but only the amount of the award.

• 2 Section 504(b) details the relevant considerations for the court in determining the amount and duration of the award. Among the factors are the financial resources of the party seeking maintenance, including marital assets and child support payments, that party's ability to become self-sufficient, the time necessary to acquire education or training for appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age and health of the parties, and the ability of a spouse to pay maintenance and meet his needs. (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1) through (6).) In reviewing the trial court's award of maintenance we will not overturn the trial court's findings and conclusions unless such are against the manifest weight of the evidence thus showing an abuse of discretion. In re Marriage of Bramson (1981), 100 Ill. App.3d 657, 427 N.E.2d 285; In re Support of McGrew (1980), 90 Ill. App.3d 27, 412 N.E.2d 996; In re Marriage of Lovejoy (1980), 84 Ill. App.3d 53, 404 N.E.2d 1092.

Respondent's first contention is that the trial court improperly considered his future potential rather than his actual income in determining the award. Respondent states in his brief that his after-tax income is $57,000 but that the trial court considered he had $70,000 annual net income. Respondent further asserts that he has never made as much as $70,000 per year.

Our examination of the record and of the exhibits offered by petitioner persuades us that such assertion finds no support. The trial court never used the figure of $70,000 annual net income. What the trial court did state was that "it appeared to the court that his reasonable income potential was in the neighborhood of $70,000 a year." The court never assumed that respondent made $70,000 net a year. In addition, the claim by respondent that he has never made $70,000 per year is inaccurate. Respondent's 1980 joint tax returns shows gross receipts of approximately $81,670. Discounting this figure by petitioner's yearly earnings of $6,720 leaves respondent with well over $70,000 gross per year contrary to his assertion.

• 3 It is clear that the trial court did not use respondent's potential income rather than his actual income in assessing the award of maintenance. Moreover, it is not improper in all cases for the trial court to use income potential rather than actual income. (In re Marriage of Smith (1979), 77 Ill. App.3d 858, 396 N.E.2d 859.) Although the trial court used a figure reflecting respondent's gross income in arriving at its award, nothing in the record persuades us that the trial court failed to take this into consideration.

In making a maintenance award the trial court must also consider the financial resources of the party seeking maintenance, including marital property apportioned to her. (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1).) The trial court awarded petitioner a stock portfolio valued at $20,390, a $1,000 money market fund and $25,000 in cash. Respondent's argument that the trial judge did not consider these amounts is again unsupported by the record. The court noted in its judgment order that it was aware of the fact that petitioner had received income-producing ...


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