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In Re Marriage of Rubinstein

OPINION FILED JULY 10, 1986.

IN RE MARRIAGE OF HARRY RUBINSTEIN, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND HELEN RUBINSTEIN, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


Appeal from the Circuit Court of Du Page County; the Hon. Edmund P. Bart, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

This is an appeal by the wife of the trial court's distribution of property and determination of support as set forth in a supplemental judgment for dissolution of marriage.

Petitioner, Harry Rubinstein, and respondent, Helen Rubinstein, were married on June 28, 1970, at the age of 21. Two children were born of the marriage: Jason on June 1, 1978, and Dana on April 2, 1980. Harry filed a petition for dissolution of marriage on January 3, 1983, and Helen filed a counterpetition for dissolution on January 18, 1984. On January 24, 1984, the trial court granted the judgment for dissolution of marriage, reserving for future determination the issues of custody, support and maintenance. No question is raised on the dissolution of the marriage.

At the time of the marriage, both Harry and Helen had recently graduated from college with bachelor's degrees. Helen was employed as a high school English teacher with the Chicago public school system, and Harry was about to begin his first year of medical school. It is uncontroverted that the parties had an understanding that she would work to support the family during the years of Harry's medical training and then she would have the opportunity to further her education and career.

Helen taught for 10 1/2 years, during which time Harry pursued his medical education and training for nine years, including four years of medical school, three years of internship and residency and two years of a fellowship. Helen's earnings as a teacher were almost the sole family income in the early years. Helen attended night school and obtained a master's degree in special education, managed the household, and took care of the family. She gave up outside employment after their second child's birth in 1980.

Helen is currently pursuing an MBA degree, which she started in September 1982. She hopes to complete that degree and obtain employment in the business sector. Helen has no desire to return to teaching.

Helen resides in the marital residence in Naperville with the two minor children. She calculated the average cost of living for herself and the children on a monthly basis for the period of July 1981 through March 1984. That average monthly expense, including an allowance for an assumed 21% tax rate, equals $5,493.69. Without an allowance for taxes, the monthly average equals $4,540.24.

Harry is a medical doctor specializing in internal medicine, who commenced his medical practice after completing his fellowship in July 1979. He maintains offices at two locations in Aurora; one office is operated under the name Aurora Associates in Internal Medicine, Limited (AAIM), and the other under the name East Fox Valley Associates. Harry receives his salary through AAIM, a professional medical corporation, of which Harry is a one-third stockholder and owner. At the time of trial he testified that his gross monthly income from AAIM was $7,000 and his net monthly income was $5,000. We note, however, the record demonstrates that Harry's proposed 1983 tax return reflects a gross monthly income of $8,371, and a net monthly income of $6,884. His 1982 return showed a gross monthly income of $10,313. In addition, AAIM has both a profit-sharing and pension plan. As of April 30, 1983, Harry's profit-sharing account had a value of $49,879.33; his pension plan had a value of $11,710. The sum of $2,600 per month is paid for Harry's benefit on the pension plan by AAIM.

In addition to Harry's salary, pension and profit-sharing benefits, Harry had made cash withdrawals from AAIM totaling $10,091 in 1983. Harry testified that he owed AAIM the sum of $18,192.93, but admitted that that sum includes $7,819 net income and withholding of $6,181. It also includes a $2,000 loan to Harry's sister, who is not associated with the corporation, which is shown on the books as a loan to Harry. Harry also has IRA accounts totaling approximately $13,500.

The parties had an account at Thomson-McKinnon which had balances as high as $21,500 in it prior to trial. Harry admitted having withdrawn that money, but claimed $17,000 was applied to the Bank of Ravenswood mortgage on the River Forest home being sold on contract. The balance not specifically accounted for, he claimed, was used to meet his personal financial obligations.

Harry has resided in a rental apartment in Naperville since he left the marital residence in August 1982. He testified that his monthly cost of living is $2,809. This would leave his monthly net after taxes and living expense at $4,075.

The evidence presented at trial included the testimony of Marlys Moore, the business manager of AAIM, regarding Harry's financial dealings and relationship with that corporation, and Hugh B. McCulloch, Helen's expert regarding the value of Harry's medical practice. In McCulloch's opinion, this practice, including Harry's interest in the pension and profit-sharing accounts, was worth $430,000 as of March 31, 1984.

The trial concluded on April 6, 1984. Written closing arguments were presented on behalf of each of the parties. On April 13, 1984, the trial court announced its findings and decision. After various continuances, the supplemental judgment was entered as proposed by Harry's attorney on July 19, 1984.

The supplemental judgment entered by the trial court ordered Harry to pay unallocated support for Helen and the two children in the amount of $2,800 per month. We note that this amount was taxable to Helen and deductible by Harry. We further note that the court ordered Helen to be responsible for all mortgage payments of $1,752 per month plus real estate taxes of $221 ...


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