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In Re Marriage of Smith

OPINION FILED APRIL 19, 1985.

IN RE MARRIAGE OF SUSAN S. SMITH, PETITIONER-APPELLEE, AND DONALD A. SMITH, RESPONDENT-APPELLANT.


Appeal from the Circuit court of Cook County; the Hon. Monica Reynolds, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This is an appeal from several portions of a judgment for dissolution of marriage brought by respondent, Donald Smith. Respondent contends that the trial court erred in: (1) reserving maintenance for the petitioner, Susan Smith; (2) granting permanent custody of the Smith children to the petitioner; (3) failing to consider both the needs of the children and the petitioner's income when making the child support award; (4) failing to distribute the marital property in just proportions; (5) awarding attorney fees and costs to the petitioner and her attorneys and awarding them in an excessive amount; and (6) denying respondent's request to examine opposing counsel's original time sheets. We affirm in part and reverse in part.

The Smiths were married on July 12, 1969. Two daughters were born to the parties: Lindsay on June 25, 1976, and Courtney on October 14, 1979. In May 1981, the parties separated and the respondent moved into his own apartment.

Petitioner worked as an elementary school teacher from 1969 to 1976. She returned to the teaching profession in 1983, earning an annual salary of $20,258. Respondent is employed by the V.A. Smith Company (V.A. Smith), a business owned by his father. Respondent, his father and George Olsen are the directors of the company. The directors vote on the payment of salaries, bonuses and loans. In 1980, respondent earned $88,000, including a bonus. His income for 1981 was $58,600, which also included a bonus. In 1982, respondent was not paid a bonus and earned only $28,600. The decline in his salary was due to two factors: a decrease in the company's profitability and a reduction in respondent's sales volume. In addition to his salary, the company paid for respondent's use of two company cars, his business expenses and medical insurance. Some of the company's customers gave him free vacation trips.

Respondent received several loans from V.A. Smith totaling $58,000. The principal on these loans has not been repaid. The money borrowed was used to make several real estate investments, which proved unprofitable, and for the payment of legal expenses for this lawsuit. The respondent is indebted in the amount of $5,475 to the First National Bank of Skokie and is a guarantor of his $3,700 share of a loan assumed by the buyer of property which he owned in part. Petitioner borrowed $7,480 from her parents to cover court costs and living expenses prior to resuming a teaching position.

During their marriage, the parties acquired a home valued at $170,967 with an outstanding mortgage of $27,184, furnishings in the marital home valued by the respondent at $32,895, a sailboat worth $9,000, a powerboat worth $750 and a snowmobile worth about $250.

At trial, Virginia Simons, a clinical social worker, and Dr. Peter Fink, a psychiatrist, testified on the issue of child custody. Simons interviewed both the parties and the children. She also spoke with the children's teachers, petitioner's minister and her therapist. Simons concluded that the petitioner should be given custody of the children. She based this conclusion on their attachment to the petitioner, petitioner's affection for and nurturance of them and her care of them since their birth. On cross-examination, Simons stated that respondent's interactions with the children were structured and that, although she detected love and affection between them, it was not of a physical nature, such as hugs and pats.

With Simons in attendance, Dr. Fink later interviewed the parties and the children. After the interviews, it was his and Simons' opinion that the petitioner should have custody and the respondent should have liberal visitation. Fink stated that the petitioner could provide consistency, structure and reliability for the children. She demonstrated a capacity to tolerate both negative and positive emotional experiences with her children in an effective and adaptive manner. He testified that respondent was a concerned and loving parent but did not have a sufficient quality and quantity of the characteristics which the petitioner possessed.

Dr. Jack Arbit, a clinical psychologist, testified on respondent's behalf. He examined the respondent, concluding that he is a suitable full-time parent. Lindsay and Courtney were interviewed. Lindsay's physical, psychological and intellectual development were within the normal range. He found Courtney to be a healthy child with no psychological abnormalities. He stated that the current visitation with the respondent, every other weekend and evening a week, was inadequate. On cross-examination, Dr. Arbit indicated that he did not interview the petitioner. He recommended joint custody, with the children spending equal time with each parent.

A neighbor, Julie Stoops, testified that the petitioner did not get along with her children and that she did not play with them. When the petitioner was away, she would leave the children with three or four pre-teenage babysitters in one day. Petitioner told her of calling the Abused Children Hotline because she had difficulty controlling her temper. Petitioner also told her about meeting and having sexual relations with men she met on Rush Street. In her opinion, the petitioner is one of the most insensitive mothers she knows. During cross-examination, Stoops indicated she has not kept in touch with the petitioner since Stoops moved out of the neighborhood in 1982.

Heather Campbell, a neighbor, testified that she has known the Smith family for 6 1/2 years. She stated that she sees the petitioner four times a week, that the petitioner keeps a neat home, that the Smith children are normal and healthy, and that the petitioner is an excellent mother. Petitioner babysits for the witness' children and she trusts her to take good care of them.

Jean Garschagen and Sheila Mitchell, neighbors of the Smiths, gave testimony similar to Campbell's. Garschagen also testified that she knows Julie Stoops. The petitioner and Stoops were friends until they had a disagreement over which Stoops became upset and violent. Stoops was opinionated and was often out in the street loudly voicing her opinions. Stoops' opinions were always negative, and she criticized everyone in the neighborhood behind their backs. Mitchell stated that she is acquainted with Julie Stoops. Stoops consistently complained and was dissatisfied with every aspect of life in the neighborhood.

Respondent's mother, Ruth Smith, testified that her son's family visited her home four to six times a month. Since the separation, respondent brings the children over for dinner on Friday nights. During these visits, she has observed respondent playing games, reading stories and taking walks with the children. She thought that the petitioner did not properly discipline the children. Although she felt respondent was capable of taking care of the children, she concluded that she was not better able than the experts to decide where to place the children.

Respondent's sister, Susan Sprowl, testified that she visited her brother's family for a month every summer and sometimes at Christmas. Respondent was affectionate with the children and was concerned with teaching them good grooming habits and manners. She ...


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