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In Re Marriage of Goforth

OPINION FILED JANUARY 13, 1984.

IN RE MARRIAGE OF GARY ALAN GOFORTH, PETITIONER-APPELLANT,

v.

MARILYN KAYE GOFORTH, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Washington County; the Hon. Thomas O'Donnell, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Petitioner Gary Goforth filed for dissolution of his marriage to Marilyn Goforth in the circuit court of Jackson County. The respondent objected to that venue and perfected an appeal to this court pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308). In a Rule 23 order (In re Marriage of Goforth (1981), 99 Ill. App.3d 1205, 429 N.E.2d 212), we found that the petitioner had failed to prove that proper venue for his action existed in Jackson County and ordered that the respondent's motion to transfer venue to Washington County be granted. On January 4, 1982, the circuit court of Washington County entered an order granting the petition for dissolution and reversing the disposition of property. Following a June 29, 1982, hearing on the property issues, the court entered an order on August 19, 1982, disposing of the property and ordering the petitioner to pay maintenance and child support. The petitioner appeals from this order, and argues that (1) the trial court made an inequitable distribution of the marital property, (2) the court improperly required the petitioner to pay the respondent's attorney fees, (3) the court erred in awarding maintenance and child support based on a percentage of the petitioner's net income, (4) the court's award of any maintenance was unsupported by the evidence presented at trial, (5) the child support award was excessive, and (6) the petitioner should not have been ordered to assume a $12,000 debt incurred by the respondent after the parties' separation. The facts in this case are largely undisputed.

The parties were married on June 15, 1968, in Tazewell County, Illinois. In September of that year, they moved to Kirksville, Missouri, where the petitioner began his studies at the Kirksville College of Osteopathic Medicine, from which he graduated in 1972. During the course of this schooling, the petitioner spent approximately six months in required externships in Oregon, Florida, Michigan, Ohio and Missouri. He received housing and a monthly allowance of $250 for this work. After his graduation, he served an internship in Grand Rapids, Michigan, for a year at a salary of $1,500 per month plus housing. While the petitioner was in school, the respondent worked at Southwestern Bell in Kirksville, then at the Osteopathic Hospital, as a receptionist. She testified that she worked continuously during that period, except for six weeks surrounding the birth of the parties' first child, and except for the periods of the petitioner's externships. The respondent testified that she did not recall her wages for this employment, but the petitioner estimated that she had earned $5,000 while he was in school. The petitioner was employed as a lab technician at the hospital at this time, and put in 25 or 30 hours a week during the school year and 50 or 60 hours during vacations. He was of the opinion that his rate of pay was three to four times that of the respondent.

Following the completion of the petitioner's internship in Grand Rapids, during which time the respondent was employed part time, the parties moved to Florida, where they remained for approximately two years. After the couple's first year there, the respondent took employment at a clinic where the petitioner worked. While in Florida, the petitioner earned between $30,000 and $35,000 annually. In 1975, the parties moved to Nashville, Illinois, where the respondent remains with the parties' three children. She did not work outside the home until 1979, but the petitioner became a salaried employee at the Family Medical Practice in Nashville and Okawville. His gross earnings from his employment were $53,557.76 in 1977, $63,574.74 in 1978, $71,925.91 in 1979, $90,384.47 in 1980 and $92,205.04 in 1981. Additionally, the Family Medical Practice pays for the petitioner's automobile, plus gasoline and repairs, malpractice insurance and health insurance for the petitioner and his family. In 1979, the respondent started to work at a flower shop in Nashville, where she was paid the minimum wage for a work week of 16 hours, or greater, as business required. She was so employed until she accepted a job at a jewelry store in Nashville in early 1982. In that position, she earned $3.35 per hour and was normally scheduled to work 35 hours per week. At the time of the property disposition hearing, she was still employed by the jewelry store.

The parties' estimates of their own living expenses were not contradicted at trial. The respondent, who retained custody of the parties' three children, testified that her monthly expenses were as follows: food, $600; telephone, $80 to $90; children's clothing, $200; her clothing, $100 to $150; gasoline, $95; auto insurance, $100; homeowners' insurance, $35; property taxes, $95; payments on a television, $25; payments on encyclopedias, $15; children's entertainment, $60 to $65, and her entertainment, $12 to $15. These figures excluded expenses for vacations and birthday and Christmas presents, as well as $150 for monthly utilities at the marital residence, which the petitioner customarily paid. The respondent testified that after the petitioner left that residence in September 1980, she borrowed a total of approximately $12,000 from the Farmers' and Merchants' Bank of Nashville to assist in paying for living expenses, including such items as vacations and birthday and Christmas presents.

The petitioner stated that he lived in a house, which he rented, with Sue Bockentin, a registered nurse who earns between $1,000 and $1,200 per month, and who pays for her own expenses. His monthly rent at that residence was $250, the utilities, $150, and his personal expenditures for food he estimated at $240. In his answers to the respondent's interrogatories, the petitioner represented his monthly clothing and laundry expenses at $125, transportation expenses at $50 and recreation at $100 to $150. He also introduced at trial a list of expenses which showed entries of $180 per year for books, magazines and newspapers, $240 for cigarettes and liquor, $2,616 for disability and life insurance and $1,200 for "miscellaneous." He also paid $600 per year for family medical and dental expenses not covered by insurance, and, as noted above, paid the real estate taxes and utility bills for the marital home.

The parties' only significant tangible assets are the marital home, the household goods and the car driven by the respondent. The house was appraised at $68,500, which figure is not seriously challenged, and the household goods were valued at $8,541. The petitioner thought that the personal property was worth nearly $1,000 more than that figure. The respondent's automobile was valued at $3,900 by the petitioner. The parties also carry insurance policies on themselves which have a cash value of more than $2,000.

Against these debts stand the parties' substantial liabilities, which include loans to pay for the petitioner's schooling and the parties' living expenses, in addition to three mortgages on the parties' home. The outstanding balance on those mortgages totaled $76,199.35, the balance on the parties' unsecured loans was $25,441.27, and the balance on four credit cards was approximately $4,000 at the time of the property disposition hearing. Certified public accountant John Kolisek testified that he had verified these figures and further estimated the petitioner's net income for 1982 to be at least $61,500. The petitioner's financial statement, as prepared by Kolisek, listed proposed applications of that income in 1982 to credit cards of $4,000, loan payments of $12,000 and mortgage payments of $15,000.

In its order distributing the marital property, the court granted the marital residence along with its furniture, except for a wall plaque and Christmas decorations, to the respondent, who also received the automobile which she used. The petitioner was required to assume all indebtedness, including the mortgages, which had been incurred prior to the separation of the parties, in addition to a debt of $2,000 incurred by the petitioner after that time and a debt of $12,000 incurred by the respondent after that time. The petitioner was also ordered to pay the respondent 40% of his net income, 20% of which sum (8% of petitioner's net income) would be considered maintenance and would continue only for five years, and the remaining 80% (32% of petitioner's net income) would be for child support. Under the terms of the court's order, the petitioner was required to pay $9,089.78 of attorney fees incurred by the respondent.

As noted earlier, the petitioner presents a number of challenges to the court's order, but his basic argument is that the order, taken as a whole, is completely inequitable. After the court's division of property, the respondent received the house without debt, the household furnishings and her automobile, which property was valued at approximately $81,000. The petitioner, in contrast, was ordered to assume $76,000 in mortgages, $25,000 in unsecured loans incurred prior to separation, $14,000 in unsecured loans incurred after separation, at least $4,000 in credit card debts and $9,000 in the respondent's attorney fees, for a total of $128,000. The only marital assets which he received were some Christmas decorations and a wall plaque. This disposition, he argues, is inequitable enough, but he urges this court to recall that in addition he must pay 40% of his net income for maintenance and child support. Thus, on a net income of approximately $61,000, he is required to pay $24,400 in maintenance and make payments on $128,000 in debts, while the respondent contributes nothing toward the payment of those debts.

• 1-3 When a dispositional order is entered upon dissolution of a marriage, it must be equitable. (In re Marriage of Aschwanden (1980), 82 Ill.2d 31, 411 N.E.2d 238; Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) In reviewing such an order, this court should consider the sum of its provisions, because the distribution of marital property both affects and is affected by the amount of maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(9)) and child support. (Ill. Rev. Stat. 1981, ch. 40, pars. 505(a)(2), (5).) The Illinois Marriage and Dissolution of Marriage Act incorporates a partnership theory of marriage, and thus an order disposing of the parties' property and awarding maintenance or child support should recognize and compensate each party for his or her contribution to the marriage. (In re Marriage of Smith (1981), 86 Ill.2d 518, 427 N.E.2d 1239; In re Marriage of Rogers (1981), 85 Ill.2d 217, 422 N.E.2d 635.) An important objective to be reached by the trial court in entering such an order is to place the parties in a position from which they can begin anew, in addition to providing adequate support for the children. (In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 398 N.E.2d 126.) The trial court's decision will not be challenged absent an abuse of discretion. In re Marriage of Peoples (1981), 96 Ill. App.3d 94, 420 N.E.2d 1072.

The trial court was held to have exceeded that discretion in In re Marriage of Clearman (1980), 85 Ill. App.3d 584, 407 N.E.2d 189, appeal after remand (1981), 97 Ill. App.3d 641, 423 N.E.2d 283. In that case the parties had accumulated marital assets in excess of $71,000 and marital debts of $31,519, with no significant non-marital property. The trial court awarded the wife assets worth $65,620, including the marital home, and awarded the husband $6,200 of those assets and required him to assume all of the marital debts. In addition, the husband was ordered to pay $50 a week in support of the parties' two children, and he was directed to pay $2,000 of the wife's attorney fees. This disposition, according to the appellate court, effectively denied the husband any share of the net wealth accumulated by the parties during the marriage. It was stated that "[s]uch a vast disparity in the proportionate disposition of marital property must be accompanied by the most extraordinary circumstances before this court can uphold it as just." (85 Ill. App.3d 584, 587, 407 N.E.2d 189, 191.) The court found that no such circumstances existed, because both parties were employable, even if some difference existed in their economic opportunities, and neither party demonstrated a grossly disproportionate need. The cause was remanded to allow the trial court to reconsider its order. Upon remand, the court entered virtually the same disposition of property, but this was upheld on appeal, because in the interim, the wife had become seriously ill, to the extent of requiring brain surgery, and had suffered serious impairment of her vision, speech and thinking processes. In re Marriage of Clearman (1981), 97 Ill. App.3d 641, 423 N.E.2d 283.

• 4 We believe that the court's order in the case at bar bears the same element of inequity that the appellate court found impermissible in the first Clearman case. Although the petitioner has not furnished a detailed schedule of payments or a listing of interest rates on the debts he was required to assume, it is nonetheless apparent that the petitioner will suffer much greater hardship than the respondent under the terms of the decree. On a net income of $61,000, which, of course, was the petitioner's net income for 1982, the petitioner would spend 40% of his income, or $24,400, on child support and maintenance. Taking the lowest of the petitioner's estimates of his own living expenses, it can be seen that he needs at least $15,800 to support himself. This would leave him approximately $20,000 a year to make payments on the $128,000 in debts, and, when those debts are paid, the respondent would retain all of the property for which the debts were incurred. Also, the petitioner's monthly payments to the respondent would be over $2,000, on the petitioner's salary, and that amount is nearly $500 more than the respondent's estimate of the needs of herself and the children, even without considering the respondent's income.

• 5 This distribution of property violates several of the principles we discussed earlier. It fails to recognize any of the petitioner's contributions to the marriage, by leaving him with only debts, Christmas decorations and a wall plaque. It also does not put the parties in a position from which they can begin anew. During the marriage, the parties lived considerably beyond their means, and under the trial court's order, it is only the petitioner who must shoulder the burdens of the marital finances. This ignores authority which holds that where the partners to a marriage ...


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