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In Re Marriage of Siegel

OPINION FILED APRIL 17, 1984.

IN RE MARRIAGE OF GAIL SIEGEL, PETITIONER-APPELLEE, AND MICHAEL J. SIEGEL, RESPONDENT-APPELLANT.


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

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Respondent Michael J. Siegel (Michael) appeals the custody award, property division, maintenance and attorney fees portions of a judgment entered in the circuit court of Cook County on October 6, 1981, dissolving his marriage to petitioner, Gail Siegel (Gail). On appeal, Michael contends that the trial court erred in awarding custody of the parties' two minor children to Gail; in finding that Michael had dissipated the marital home; in directing Michael to pay to Gail $30,000 as her half of the equity in the marital home; in finding that Michael should pay Gail maintenance of $150 per month for a period of three years; and in directing Michael to contribute $9,000 to Gail's attorney fees. For the reasons hereinafter stated, we affirm the judgment of the trial court.

Michael and Gail were married on July 26, 1964. Two children were born of this marriage: Scott, born March 19, 1966, and Jason, born January 24, 1970. On August 15, 1979, Gail filed a petition for dissolution, alleging mental cruelty. On November 21, 1980, Michael filed a counterpetition for legal separation or dissolution, alleging adultery and mental cruelty. On October 6, 1981, after a bifurcated hearing, an order of dissolution was granted on Michael's counterpetition on the stipulated grounds of mental cruelty.

Between August 1979 and January 1983, both parties filed numerous "pleadings." Gail filed 25 pleadings regarding temporary maintenance and discovery, and Michael filed 20 pleadings regarding visitation rights, discovery and a third-party complaint alleging alienation of affection against Mr. Goldstein, Gail's alleged "boyfriend." On October 3, 1980, Michael's third-party petition against Mr. Goldstein was severed and was transferred to the law division.

Subsequent to the order of dissolution, three separate hearings were held to determine the issues of: (1) custody; (2) property division and maintenance; and (3) attorney fees.

(1) CUSTODY

On October 14, 1981, at the contested hearing on custody, Michael testified he resides in Deerfield, Illinois, and is an attorney working as a "sole practitioner." Michael claimed Gail was not a fit and proper parent because her "social life" prevented her from being available to the children to prepare meals or to be at home when they were ill; Gail punished the children by not permitting them to visit with their father; and Gail "placed her own needs above those of the children."

Gail testified she resided with her two sons in the marital home in Deerfield, Illinois, and is employed part time as a personnel representative. Gail denied that she is often absent from the home; she never punished the children in a manner that prevented their visiting with their father; and she offers the children attention, love, discipline, guidance and proper values. Gail conceded she was "dating" Mr. Goldstein and on several occasions was away from the marital home "overnight." On these occasions she left the children at home with her mother, the children stayed with Michael at his apartment, or the children stayed at home alone.

Dr. Daniel Beach, a registered clinical psychologist, testified for Michael: he made psychological evaluations of Michael and the two children; the results of his evaluations reveal Michael is "a quite normal individual"; Scott is "a very normal and average adolescent; and Jason "showed a child who is functioning quite normally" and "had an unusual level of emotional maturity for a child his age." Scott told Dr. Beach he preferred to live with Michael because "he felt more cared for when he was with his father."

Susan Genson, a cousin to Gail, testified that, in her opinion, it would be in the best interests of the children if their custody was awarded to Gail.

Libby Savner, vice-president of the board of education of Deerfield and a friend of the Siegels, testified that Michael is an "outstanding parent."

The court conducted an in camera hearing in which the children expressed a preference to live with their father because they "felt they could do more with their father." Scott voiced apprehension about getting along with the children of their mother's "boyfriend" if they married. The children stated they loved both parents and were well cared for by both parents.

The custody hearing consumed six days. On January 14, 1982, the trial court, after "having considered all the evidence and relevant factors as set forth in Section 602 of the Illinois Marriage and Dissolution of Marriage Act" (hereinafter referred to as the Act), (Ill. Rev. Stat. 1979, ch. 40, par. 602), awarded custody to Gail.

(2) PROPERTY DIVISION AND MAINTENANCE

On March 9, 1982, at the hearing on property division and maintenance, Michael testified: in 1980 he had a gross income of $78,840 and expenses of $58,000 resulting in a $20,840 net income; he rents an apartment in Deerfield for $575 per month; in January 1981 he purchased a new car for $12,000; he has a car loan costing $220 per month and a bank loan costing $250 per month. His total expenses in 1981 for rent, loans, food, the children's summer camp and maintenance, *fn1 amounted to $22,710.

On April 22, 1982, Gail testified: in 1981 she worked as a receptionist for a doctor and her gross earnings were $6,500; she currently works as a "special services representative" and is paid "commissions"; she has only a high school education and requires refresher courses in typing and business to find appropriate employment. In addition to the $750 monthly maintenance paid by Michael, under the temporary order of March 21, 1980, Gail received "some money" from her father and her brother. In her affidavit Gail listed the expenses for herself and the children as $1,923 per month.

Gail further testified that since January 1980 she has made no mortgage payment. In 1980, in a telephone conversation with Michael, she offered to pay one-half of the arrearage on the mortgage by borrowing money from her cousin, but Michael told her the mortgage was her "problem." In 1982, following foreclosure proceedings by the Niles Savings Bank, the balance due for redemption of the property was approximately $70,000. She estimated the value of the marital home approximated $110,000. Michael offered no evidence as to the value of the marital home. In February 1982, when the redemption period for the marital home had expired, Gail and the children moved to their present home in Deerfield where the rental was $750 per month.

On September 9, 1982, after the hearing on the issues of property division and maintenance, the court found:

"9. * * * said Michael Siegel has allowed the dissipation of the major asset of the parties, being the marital home, by allowing it to go to foreclosure and subsequently to be sold pursuant to court order, even though he had the opportunity and ability to prevent this. That there was an equity of approximately $60,000.00 in said marital home and that the petitioner, counter-respondent, Gail Siegel, is entitled to an amount equal to one-half of said equity."

Based upon this finding, the trial court ordered, inter alia:

"G. That the respondent, counter-petitioner, Michael Siegel, is to pay unto the petitioner, counter-respondent, Gail Siegel, the sum of Thirty Thousand ($30,000.00) Dollars by the end of a five (5) year period from the date of entry of this Judgment, and said Michael Siegel shall pay to Gail Siegel Nine (9%) Percent interest per year on the unpaid balance, payable quarterly."

The trial court also ordered Michael to pay to Gail $700 per month for the support and maintenance of the minor children and $150 per ...


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