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In Re Marriage of Sevon

OPINION FILED AUGUST 25, 1983.

IN RE MARRIAGE OF RICHARD Y. SEVON, PETITIONER AND COUNTERRESPONDENT-APPELLANT, AND WANDA I. SEVON, RESPONDENT AND COUNTERPETITIONER-APPELLEE.


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

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Richard Sevon filed a petition for dissolution of marriage on August 19, 1980, in the circuit court of Cook County. Wanda Sevon filed an answer and counterpetition on September 12, 1980. Following a contested trial, a judgment of dissolution of marriage was entered on December 31, 1981; a supplemental judgment of dissolution was entered on February 4, 1982. Richard filed a notice of appeal from the supplemental judgment, and on September 30, 1982, the trial court awarded Wanda $4,000 in attorney fees to defend the appeal. Richard also filed a notice of appeal of this fee award. By order of this court, the appeals have been consolidated.

Richard argues on appeal that the distribution of marital property was inequitable in that (1) the trial court improperly evaluated the economic circumstances, standard of living, and available income of each of the parties; (2) the award of maintenance to Wanda was excessive; and (3) the trial court should not have considered a judgment entered against Richard for failure to pay court-ordered temporary maintenance and should have entered a judgment against Wanda for dissipation of the marital assets. He also argues (4) that the trial court committed error in refusing to vacate the fee award on his motion, which claimed he was not given notice of the hearing on Wanda's petition for fees; and (5) that the trial court erred in ordering him to pay fees incurred by Wanda in defending his appeal where there was no evidence that he was financially able to pay.

We affirm in part and reverse in part.

FACTS

Wanda and Richard Sevon were married in 1954. They had two children, both of whom are now adults. They lived in Des Plaines in a home that, at the time of trial, had a net equity value of $133,550. In July 1980, Wanda discovered that Richard was having an affair with another woman. Wanda became distraught; she was hospitalized for a period of 30 days, and has since been under the care of her doctor. Richard moved out of the marital home at the time his involvement with the other woman was disclosed.

In October 1980, the circuit court awarded Wanda exclusive occupancy of the home and ordered Richard to pay Wanda a lump sum of $800 and also to pay all "bills relating to the marital premises" as temporary maintenance. Richard never made such payments. At the time of trial the accrued arrearage was $7,811.32; it continued to increase until the supplemental judgment of dissolution ordered that it would be satisfied through the court's award of the marital home to Wanda.

Richard is self-employed as a builder. His petition for dissolution stated that he earned approximately $36,000 per year. The trial court's supplemental judgment of dissolution recites that in an affidavit dated January 20, 1981, Richard stated his wages were $1,500 per month. Between January and August, 1980, he deposited $29,966 in a bank account having an existing balance of $2,880. Richard's construction company had gross receipts of $40,000 in a 20-month period, and Richard claimed accounts receivable of an additional $1,200. He testified that his income in 1981 was about $1,200; he was working at the time of trial and was bidding on other construction jobs. The trial court noted "with disbelief" Richard's testimony that, beginning in August 1980, he had obtained three $10,000 bank loans and also borrowed money from his parents.

The parties stipulated that during the 27-year marriage Wanda had performed all the services of a homemaker and raised two children. Wanda testified that she performed these services without assistance from Richard. She also worked part time for United Airlines throughout the 27 years. In 1981 she earned about $6,000. During the marriage she had borrowed between $20,000 and $30,000 from her credit union to help Richard's business. Wanda was 46 years old at the time of trial. Her employer's pension plan will pay her $222 per month at age 65. Her biweekly income from her job and from rent received from two boarders in her house was $348.24.

After Richard moved out in July 1980, he made three mortgage payments; Wanda paid all the other expenses for the maintenance of the home. To meet these and her personal and medical expenses, Wanda asserts, she spent $14,000 given to her by Richard in February 1980 and the $10,000 in her credit union account. When questioned on cross-examination about her use of marital funds for these purposes she testified that Richard had threatened to "leave her penniless." The trial court found Wanda's expenditures to be "necessary and appropriate * * * legitimate family expenses."

The trial court awarded the marital residence to Wanda in lieu of maintenance. The court noted that "[Wanda] is employable only at a low income as compared to [her] standard of living and that maintenance would be appropriate." However, "[t]he court finds that the distribution of property is appropriate in this case in lieu of an award of maintenance in that the court finds [Richard] to be an unreliable source of income due to his history of noncompliance, * * * and [his] irregular income coupled with his exhibited ability to borrow large amounts of money from banking institutions while refusing to pay any of said monies to [Wanda] pursuant to court orders."

The court also awarded a 1977 Cadillac, $2,500, and her pension to Wanda; and a 1978 Buick and an insurance policy having $1,500 cash value to Richard. The trial judge explained his findings as follows: "[Richard] is able to maintain his present needs and his opportunity for the acquisition of income and assets in the future far outweighs that of [Wanda]. The court finds [Richard] to be presently employable and able to support himself adequately. The fact that [he] indicated he has spent all of his money, the court deems irrelevant."

OPINION

• 1 Richard maintains in this appeal that the trial court's distribution of marital property was inequitable. He argues that the trial judge improperly evaluated the economic circumstances of the parties and consequently made an excessive award of maintenance to Wanda; he also claims that the trial judge should not have considered the judgment entered against him for failure to pay temporary ...


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