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Geittmann v. Geittmann

OPINION FILED JULY 13, 1984.

E. CHARLES GEITTMANN, PETITIONER AND COUNTERRESPONDENT-APPELLANT,

v.

NELL D. GEITTMANN, RESPONDENT AND COUNTERPETITIONER-APPELLEE.



Appeal from the Circuit Court of Massac County; the Hon. William South, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 23, 1984.

E. Charles Geittmann (petitioner) appeals three orders entered on June 30, 1983, in the circuit court of Massac County. The first order denied Mr. Geittmann's petition to modify an order of May 11, 1973, dissolving his marriage to Nell D. Geittmann (respondent). The proposed modification would have relieved petitioner of his obligation to pay alimony to respondent. The second order found petitioner in contempt of court by reason of his failure to pay maintenance to respondent, and directed petitioner to pay $5,000 to respondent within 30 days. The third order directed petitioner, an attorney, to assign to respondent's trustee all of his shares in E. Charles Geittmann, P.C., a professional corporation, and directed the trustee to make installment payments to respondent from the corporate proceeds in order to satisfy a judgment for unpaid maintenance.

The marriage of petitioner and respondent was dissolved by the aforementioned decree of divorce on May 11, 1973. The decree ordered petitioner to pay respondent $1,000 per month. The amount was reduced to $800 by an order modifying the divorce decree, entered on August 8, 1973.

On February 13, 1981, respondent filed a petition for rule to show cause why petitioner should not be held in contempt for his failure to make payments ordered in the divorce decree. Petitioner, on August 11, 1981, filed his petition to modify the divorce decree, praying for termination of his obligation to pay alimony. On August 14, 1981, respondent filed a motion for summary judgment and a motion to strike the petition to modify the divorce decree. After a hearing on August 28, 1981, the court found that petitioner had failed to make timely payments pursuant to the divorce decree, but that his failure had not been wilful or contemptuous. The court thus ordered the contempt petition dismissed, while granting respondent's motion for summary judgment. Judgment was entered for respondent in the amount of $34,200 for alimony accruing to the date of July 15, 1981. Following the same hearing, the court dismissed for failure to state a cause of action Mr. Geittmann's petition to modify the divorce decree, granting petitioner 35 days in which to amend the petition. An amended petition was filed on October 2, 1981, and an amendment to the amended petition was filed on March 11, 1982.

Respondent sought to enforce the judgment against petitioner by filing, on April 15, 1982, a citation to discover assets; on April 23, 1982, a petition for sequestration; on April 26, 1982, a petition for rule to show cause why petitioner should not be held in contempt; and on May 7, 1982, a wage deduction summons. On June 30, 1983, the court entered judgment in the form of the three aforementioned orders. Petitioner's motion to modify the divorce decree and to be relieved of his obligation to pay maintenance was denied. Petitioner was found in contempt of court and ordered to pay $5,000 within 30 days. Respondent's petition for sequestration was granted. From these orders, petitioner appeals.

• 1, 2 A court may modify a maintenance award if the conditions and circumstances of the parties have materially changed since the entry of a prior decree. (Ill. Rev. Stat. 1981, ch. 40, par. 510.) Just as no single criterion is controlling in determining the propriety of an initial maintenance award, no single criterion is controlling in determining the propriety of a modification. (Gorman v. Gorman (1979), 72 Ill. App.3d 658, 662, 391 N.E.2d 70.) The decision to modify or terminate maintenance payments rests within the sound discretion of the trial court, and such a decision will not be disturbed on review absent an abuse of discretion. (Shellene v. Shellene (1977), 52 Ill. App.3d 889, 890, 368 N.E.2d 153.) In the instant case, the evidence of record does not support petitioner's contention that the trial court's decision not to modify maintenance payments was so unreasonable as to constitute such an abuse. To the extent that petitioner's ability to pay maintenance has actually been impaired, it is largely the result of indebtedness incurred by petitioner either personally or in the capacity of E. Charles Geittmann, P.C. Where a change of circumstances is not fortuitous, but rather is brought about by the party seeking a reduction or eradication of maintenance obligations, the moving party may not claim an entitlement to modification on equitable grounds. (Cf. Shellene v. Shellene (1977), 52 Ill. App.3d 889, 890-91, 368 N.E.2d 153.) Moreover, due to illness, respondent's need for maintenance has increased substantially since the entry of the divorce decree. The trial court's denial of modification was proper in light of the parties' circumstances.

• 3, 4 A trial court's finding of wilful contempt, together with the imposition of appropriate sanctions, is a matter similarly within the discretion of the trial judge. Absent a clear abuse of discretion, such a finding will not be disturbed on review. (Shive v. Shive (1978), 57 Ill. App.3d 754, 764, 373 N.E.2d 557.) The failure of petitioner to make any payments from February 7, 1977, until the date the contempt order was issued, together with evidence of petitioner's assets and ability to earn income, adequately supported the trial court's conclusion that petitioner's failure to make payments "was considered and calculated, and was wilfully, understandingly and purposefully done," thus causing petitioner to be in contempt of court.

Petitioner contends that the remedy fashioned by the trial court in its third order of June 30, 1980, is beyond the court's authority. The order contained the following mandate:

"That Petitioner-Counterrespondent shall, within 35 days of the date hereof, assign, set over, and deliver to NELL D. GEITTMANN, or her nominee as trustee, all shares in E. Charles Geittmann, P.C., or any other successor, substitute or substantially similar corporation heretofore or hereafter formed or, if none such, he shall transfer, assign and set over all assets, including income from day-to-day, of any substitute, successor or substantially similar business entity heretofore or hereafter formed of which E. CHARLES GEITTMANN is an owner, beneficiary or recipient in any way of THIRTY-FIVE PERCENT (35%) or more of the net profits of such entity, and such trustee shall pay or cause to be paid to NELL D. GEITTMANN the sum of FIVE HUNDRED DOLLARS ($500.00) each month to apply on the Judgment entered herein on September 14, 1981 and accrued interest thereon at the rate of NINE PERCENT (9%) per annum, and to pay, or cause to be paid, the balance of such assets or income from such corporation or other entity to E. CHARLES GEITTMANN, or his designees, and the employees and creditors of such corporation or entity; any and all expenses of such trustee shall be paid by such corporation or entity, including a per diem of ONE HUNDRED DOLLARS ($100.00) for any time reasonably spent in administering the trust in excess of eight hours per month, payable for each eight hours or fraction thereof in excess of eight hours so spent."

The order was granted in response to a petition for sequestration brought by respondent pursuant to section 392 of the old Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 392). Section 392 was in effect at the time respondent filed her petition; however, at the time the court entered its order, section 392 had been repealed, and its provisions incorporated with modification into section 2-1402 of the new Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2-1402). Section 392 of the old act read as follows:

"When a defendant is defaulted, or upon hearing, the court may enter such order as may be just, and may enforce such order, either by sequestration of real and personal estate, by attachment against the person, by fine or imprisonment, or both, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the plaintiff to be paid out of the effects or estate sequestered, or which are included in such order; and by the exercise of such other powers as may be necessary for the attainment of justice." (Ill. Rev. Stat. 1979, ch. 110, par. 392.)

The essential question is whether the modifications of the new statute precluded the remedy of sequestration explicitly authorized under the former statute. Section 2-1402 provides the following:

"(b) When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the ...


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