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In Re Marriage of De Rosa

OPINION FILED JUNE 17, 1983.

IN RE MARRIAGE OF CLAUDIA L. DE ROSA, PETITIONER-APPELLANT, AND FRANCIS P. DE ROSA, RESPONDENT-APPELLEE — (BETTY LIBERTY, RESPONDENT.)


Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal from an order entered on October 8, 1982 allegedly modifying a prior agreed order for preliminary injunction entered on October 23, 1981 during the pendency of a dissolution of marriage proceeding between Claudia De Rosa, petitioner, Dr. Francis De Rosa, respondent, and Betty Liberty, correspondent. The subsequent order allowed respondent to sell 10 of the parties' 34 thoroughbred horses acquired during the marriage although the prior injunctive order had mutually enjoined them from transferring any marital assets "except in the normal and usual course of business." Petitioner appealed pursuant to Supreme Court Rule 307(a)(1) (87 Ill.2d R. 307(a)(1)).

Petitioner contends on appeal that (1) the October 8, 1982, order is appealable on an interlocutory basis as a matter of right pursuant to Supreme Court Rule 307(a)(1); (2) the trial court abused its discretion in modifying the injunctive order, and (3) the trial court erred in denying her petition for rule to show cause.

The pertinent facts follow.

Petitioner and respondent, a urological surgeon, were married on December 18, 1967, and had one minor child, Melanie. During the course of their marriage, they engaged in the purchase, breeding, training, and racing of thoroughbred horses, primarily in Florida.

On October 14, 1981, petitioner filed her petition for dissolution of marriage against respondent seeking, inter alia, dissolution of the parties' marriage, custody of Melanie, maintenance, child support, and a just division of marital property. Respondent counterpetitioned on October 27, 1981, and thereafter both parties amended their respective petitions.

On October 23, 1981, the trial court entered an agreed order which provided in pertinent part that: "(1) Petitioner, Claudia L. De Rosa, and Respondent, Francis P. De Rosa, are hereby mutually enjoined and restrained from selling, transferring, dissipating, secreting or in any other manner disposing of any assets acquired during the course of the parties' marriage, until further order of court, except in the normal and usual course of business."

Respondent began arrangements in April 1982 to sell 10 horses — 4 yearlings and 6 broodmares — and paid all entry and registration fees to enter the horses in auctions commencing September 26, 1982, and October 10, 1982, in Ocala, Florida.

On September 8, 1982, respondent filed a petition requesting that he be granted the right to sell the 10 horses in order to pay outstanding costs and expenses relative to maintaining the horses, and that the funds be reserved to satisfy and pay capital gain taxes with the remaining proceeds escrowed to satisfy future expenses.

Petitioner responded to this petition on September 15, 1982, and objected to any sale of horses as a transfer of assets in violation of the agreed injunctive order. Prior to a ruling on his petition, respondent sold a yearling, "Run for the River," for $10,000 at the auction held on September 26, 1982. Petitioner thereupon filed a petition for rule to show cause against him for violation of the injunctive order.

At the hearing held on respondent's petition on October 7 and 8, 1982, respondent testified that he had been in the horse business for 20 years and had never placed horses, jointly owned with petitioner, in a sale before. He further testified that in 1981, the cost of operation and expenses for the horse business totaled $216,583 with gross income of $90,320 resulting in a net operating loss of $126,263 and that the cost of operation and expenses for the horse business from January through August 1982 was $155,000 with a gross income for that period was $85,000.

His net income from his medical practice for 1981 was $193,915 and for the January through August 1982 period was $85,000.

He testified that it required expenditures of $15,000 to $16,000 per month to maintain the horse business and that as of October 8, 1982, he was unable to pay the $35,000 of outstanding debts. Although he had cashed a bearer bond and received the amount of $33,796.68 in July 1982 and paid some expenses incurred in the horse business with those funds, he had no specific recollection as to which bills were paid.

On cross-examination, he testified that he had no opinion as to the value of any of the 10 ...


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