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Faris v. Faris

OPINION FILED APRIL 30, 1986.

MARGARET A. FARIS, PLAINTIFF-APPELLANT,

v.

FRANCIS W. FARIS, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Margaret A. Faris (wife) was granted a divorce from Francis W. Faris (husband) in a decree entered on September 6, 1977, under the former Divorce Act. Husband filed a petition to modify the decree on September 19, 1984, requesting that his unallocated alimony and support payment be reduced. Wife responded by filing a petition for rule to show cause alleging unallocated alimony and support arrearages, and further petitioned for an increase in alimony and support. Wife also sought her attorney fees. Prior to trial, wife moved by petition for a change of venue from all judges of the eighteenth judicial circuit stating that husband was a practicing lawyer in the circuit and also had just been appointed as an associate judge and was to be sworn in shortly. The petition was denied and the cause proceeded to trial. Wife brings this appeal from orders which, in part, increase the unallocated alimony and support payment, but terminate alimony upon the youngest child reaching age 18, and deny her attorney fees.

Wife raises the following issues on appeal: (1) whether the trial court should have granted wife's petition for a change of venue from all the judges in the eighteenth judicial circuit; (2) whether the trial court improperly ordered termination of alimony upon the youngest child reaching age 18 and, instead should have granted an increase under the circumstances; (3) whether the increase in child support granted was inadequate; and (4) whether the trial court erred in denying her request for her attorney fees incurred in the proceedings.

In a decree of divorce entered September 6, 1977, the parties were divorced, and all other matters were resolved pursuant to an oral property settlement incorporated into the decree. Custody of the three children, Susan, Marc, and Kirsten, was awarded to wife who was to receive $1,300 per month as unallocated alimony and support. The amount would be reduced to $900 per month upon Susan reaching majority, $450 per month when Marc reaches majority, and "[w]hen Kirsten reaches majority the support payments for the wife and children shall cease." During her testimony regarding her agreement with the settlement, wife also specifically acknowledged that when Kirsten attained majority, there would be no further payments of alimony and child support. Other provisions of the decree divided the property between the parties, made husband responsible for the children's college education and extraordinary medical expenses, and allowed husband to deduct the unallocated alimony and support payments on his Federal income-tax return.

On May 2, 1978, the decree was modified by agreement to permit wife and the children to move to Arizona and to require both parties to share equally the children's transportation costs for visitation back to Illinois. On December 3, 1980, the decree was again modified by agreement of the parties to give husband custody of Susan. The unallocated alimony and support provision was modified to $1,150 per month from $1,300, and upon Susan reaching majority the payment would be $950 per month instead of $900, and upon Marc reaching majority, the payment would be $475 per month instead of $450 as in the original decree.

On September 19, 1984, husband filed a petition to modify the unallocated alimony and support provision to $450 per month on the basis that Susan was in college and Marc was now residing with husband. Husband later filed a petition for rule to show cause requesting repayment of transportation expenses of $3,404 for the children as he had paid $6,809 and, by prior agreement, wife was obligated to pay them on an equal basis. Wife filed a petition for rule to show cause contending that husband had unilaterally reduced payments for two months and owed $500. Wife also petitioned to increase the unallocated alimony (hereinafter called maintenance) and support payment because of her increased expenses and indebtedness and the increased cost of living. She also requested payment of her attorney fees incurred in the proceedings.

On February 20, 1985, wife filed a petition for a change of venue to a judge from a circuit other than the eighteenth judicial circuit. The petition asserted that the judges of the circuit would be prejudiced because of husband's professional and personal acquaintances with the judges as a practicing lawyer and because of husband's recent appointment as an associate judge of the circuit and up-coming swearing in on February 28. The petition was denied because "prejudice has not been shown," and the matter proceeded to trial on February 27 and 28. Wife was allowed to file an amended petition which sought maintenance beyond the date of the youngest child's 18th birthday.

Testimony at trial, briefly summarized, showed that at the time of the 1977 divorce, pursuant to an agreement entered into by the parties, wife was awarded the marital home, which was sold in June 1978 for $101,500 subject to a mortgage of $24,588, most of the household effects and a 1971 Oldsmobile. She was also awarded the unallocated maintenance and support previously discussed. At the time of the divorce, wife was unemployed. Husband received income producing property including two parcels of real estate, an interest in a limited partnership holding real estate, a one-sixth interest in an apartment building, stocks, tax-exempt bonds, a trust, dairy cattle, and an interest in two law firms. This property was not valued, but husband testified that many of the investments were made from funds from two inheritances totaling $133,000 which he received prior to the divorce. He was also awarded a retirement account, a 1976 Cadillac and some paintings and other items from the marital home. Testimony at the 1977 prove-up indicated that husband's gross income in 1976 was $71,000 and his 1977 salary would be $36,000.

Wife used $32,800 of the approximately $70,000 received from the sale of the marital home after taxes and real-estate commission as a down payment on a home in Arizona, assuming a mortgage of $37,900. The remaining money from the sale of the home was used to pay closing costs and fees, to buy a car, for moving expenses, and for improvements and repairs on the home in Arizona, with approximately $5,000 left. She subsequently took out a $15,000 second mortgage to put in an in-ground swimming pool and to make a recreation room out of an existing carport. A third mortgage of $13,000 was taken out to invest in a business which failed. She has been employed sporadically since 1979 and testified that she lost two jobs due to health problems. At the time of trial, she was employed as a secretary for an attorney earning a gross yearly income of $15,600, with a net monthly income of $1,033. While wife argues in her brief that she is now unemployed and that this should be taken into consideration, proofs were not reopened to present evidence on the loss of her job. No argument has been raised on appeal that it was error for the trial court to refuse to reopen proofs, so wife's situation will be considered as it existed at the time of trial.

Wife's only assets are her home which has a market value of approximately $89,900 and is subject to three mortgages totaling $58,000, a car worth $2,700 and household goods worth $3,000. Her current listed monthly expenses total $2,660, including $650 for mortgage payments on the three mortgages, so that her expenses exceed her income by $1,627. Only the youngest child, Kirsten, age 14, now lives with her. Wife testified that Kirsten is now a high school freshman and her expenses have almost doubled since 1980 due to increased clothes and school expenses. Kirsten's monthly expenses were listed as $175.

Husband's financial statements from 1976, 1982 and 1983 and income tax returns from 1979 through 1983 reflected that the value of his investments and his income have increased since 1977, the 1983 statement indicating a net worth of $745,511. He testified, however, that this figure is high because a real-estate investment was overvalued on the statement by approximately $270,000. His highest yearly income was reported in 1983 when he had a long-term capital gain of $86,175, attributable in large part to the sale of a real-estate investment. He testified that he had only relatively small capital gains in 1984 and didn't anticipate large capital gains in 1985. He further stated that a substantial portion of his assets was received under the terms of the divorce decree and is in large part attributable to continuous investment and reinvestment of those assets.

Husband's current income and expense statements were admitted. The statements indicated that his net monthly income from his new position as associate judge would be $3,055.92 and his net monthly income from investments was $1,701.27 for a total of $4,767.19 per month.

He also testified that he would be receiving $38,500 from the sale of his law partnership over the next three years, or $1,000 per month, and approximately 50% of $60,000 to $70,000 from accounts receivable. His expense statement showed monthly expenses of $5,683.87, including $1,027 per month for Susan's college expenses. Marc has been living with him since September 1984, and he is paying all of Marc's expenses. He stated that he has paid thousands of dollars in medical bills for the children.

Husband also testified that beginning in August 1982, he paid wife an extra $350 a month for 10 months as a loan to help her meet her mortgage payments, evidenced by two letters signed by wife. He had not requested that she repay the loan and the agreement was that it would be repaid when her house was sold. He further stated that her share of the children's transportation expenses since 1980 amounted $3,204. Wife did not dispute this figure, but testified she was unable financially to pay her share of the transportation expenses and husband told her he would take care of it.

The court entered an order on February 28, 1985, which stated that Marc would remain with husband until further order of the court with wife having reasonable visitation; that wife owed husband $3,200 for travel expenses and the $3,500 loaned to her; that husband would pay wife $575 per month as unallocated maintenance and support for wife and Kirsten, with $50 per month deducted until the $3,200 travel expenses were paid; that the modification would be retroactive to the September 19, 1984, filing date; that all maintenance and support payments would cease and be barred upon Kirsten's 18th birthday; and that the court reserved ruling on attorney fees. The trial court made no ruling on wife's petition for rule to show cause regarding support arrearages, so we regard that petition as being dismissed.

Following the trial court's decision on the merits of the controversy, on March 27, 1985, wife filed a post-trial motion requesting modification of the judgment and alleging various errors in the proceedings and judgment. She also filed an affidavit that she had been terminated from her employment. The motion was denied. Although wife had previously requested her attorney fees be paid by husband, a new petition for attorney fees was filed by her attorney in which he represented that he had been paid $3,725 by wife and had spent in excess of $11,000 additional attorney's time.

On June 5, 1985, an evidentiary hearing was held on wife's petition for attorney fees. Her attorney, John E. Juergensmeyer, submitted a computer printout of the services provided by himself, by an associate of his firm, by a senior law student working in his office, and by a paralegal assistant in his office. Attorney Juergensmeyer testified that he billed his time at the rate of $95 per hour, his associate at $45 per hour, the senior law student at $35 per hour, and the paralegal assistant at $25 per hour. Husband agreed to the reasonableness of the hourly rate for Juergensmeyer and his associate only. Attorney Juergensmeyer further testified that applying these rates to the total time spent on the case amounted to fees of $14,650.50, plus additional expenses of $982.50. Another attorney called by wife testified that a $25 hourly rate for a paralegal was reasonable.

On cross-examination, Attorney Juergensmeyer testified that wife and others in her behalf had paid him $3,725 related to this case and $2,000 for post-judgment matters which were regarding the case but were not included in the petition for fees. He testified that the change of venue issue and the difference between the standards for modifying a divorce judgment under the old act and the new act were novel and required extensive research. The printout lists a total of 70.9 hours of legal research by Juergensmeyer and others in his office. Juergensmeyer also testified that the two major issues in the case were the question of child support and whether wife had waived maintenance at the time of the ...


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