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In Re Marriage of Kaplan

OPINION FILED NOVEMBER 3, 1986.

IN RE MARRIAGE OF VENUS KAPLAN, PETITIONER-APPELLEE, AND MARVIN KAPLAN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Michael S. Jordan, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Respondent, Marvin Kaplan, appeals from the entry of a supplemental judgment resolving financial issues incident to the dissolution of his marriage with petitioner, Venus Kaplan. It is urged on appeal that the trial court erred: (1) in finding petitioner's testimony to be credible; (2) in permitting a witness for petitioner to testify in rebuttal; (3) in relying on inaccurate hearsay documents; (4) in the division of marital property and the allocation of marital debts; (5) in awarding rehabilitative maintenance to petitioner; (6) in awarding fees to petitioner's attorney and the attorney for the minor child; (7) in failing to determine reasonable fees for respondent's attorneys; and (8) in failing to adjudicate financial responsibility for college expenses for the minor child. We affirm.

The parties were married on April 27, 1962, and had one adopted son, Bradley, born on November 16, 1966. They separated on May 1, 1977, and judgment for dissolution of marriage was entered on August 8, 1978. Custody of the minor child was granted to respondent following a contested hearing on May 16, 1983.

At the time of the hearing on financial issues, which did not take place until October 24, 1983, petitioner was approximately 43 years old and respondent was 48. Petitioner testified that at the beginning of the marriage she had worked as a legal secretary for three years. After the separation she worked as a travel agent from 1977 until April of 1983, earning a gross income of approximately $12,000 per year. Petitioner also testified that she had a thyroid problem, a hiatal hernia, and peptic ulcers. She has not been hospitalized for these conditions, but testified that these medical problems interfere with her ability to work. Respondent is a manufacturer's sales representative and prior to the parties' separation had his own business incorporated as Marvin Kaplan and Associates.

During the marriage, the parties purchased a house in Northbrook. At the time of trial it was appraised at $127,000 and had an outstanding mortgage balance of $20,500. Between November 1977 and March 1978, respondent paid petitioner temporary support of $1,000 per month and from April 1978 until March 1981, he paid her $600 per month. The parties had two cars, a 1977 Corvette and a 1982 Datsun.

Testimony at the contested hearing on property and maintenance conflicted in numerous respects or was uncorroborated. Petitioner claimed that she had worked as a secretary for her husband's business from 1972 until 1977, earning $400 per month. She stated that she was on the payroll, but that checks made out to her were put back into the company. She also stated that she assisted respondent at various trade shows and that respondent had made $10,000 per year in unreported earnings from selling samples at these shows.

Respondent testified that petitioner was put on the payroll only for social security purposes. He stated that he drew a check for $600 each month in his name and one for $400 in her name. He further testified that the majority of his work involved calling on stores and that petitioner had not assisted in that work. He also denied that she had assisted him at any trade shows between 1975 and 1978 and stated that when she had attended them previously it was primarily for social rather than professional reasons. He denied receiving any monies from sales of samples at trade shows.

Testimony was introduced regarding the amounts of income reported by respondent between 1976 and 1983. There were disparities between the amounts reported on State and Federal income tax forms for the same years, and deposits and withdrawals from respondent's various bank accounts over a period of years were not consistent with respondent's reported income. Respondent also testified that his business was transacted entirely on a cash basis for the years in question.

The parties also disputed the source of funds used as a down payment on the marital home. The wife testified that she had borrowed $10,000 from her mother in 1966 to make the down payment, although the home was not purchased until 1969. She stated that she had executed judgment notes regarding the loan, but that she had no copies of the notes. Respondent testified that the down payment came entirely from commissions from his sales accounts.

Both of the parties alleged that they had borrowed substantial amounts from family or friends between the dissolution of the marriage and the hearing on financial matters. The wife testified that she had received $900 per month from her mother to pay for the mortgage and other living expenses and estimated that she owed her mother $80,000. She also testified that she had borrowed approximately $2,000 from her brother and $27,411.50 from a friend, Thomas Edmire.

Respondent testified that he had borrowed about $8,000 from his mother, $2,000 from his sister, and various sums from friends. He also testified that he borrowed the credit card of a friend for convenience purposes and wrote checks in payment directly to American Express. In addition to the sums he borrowed between 1979 and 1983, he also made loans in excess of $7,000 and gave $10,000 to a woman friend.

Following the hearing, the trial court entered an order allocating the debts and assets of the parties and granting petitioner temporary maintenance for three years. A separate hearing on attorney fees resulted in an order directing respondent to pay 75% of petitioner's attorney fees as well as his own fees and those of the minor child. This appeal followed.

We turn first to respondent's contention that the trial court erred in attaching any weight to petitioner's credibility. He argues that reversal is required where the outcome might have been different if the error had not occurred, citing In re Marriage of Wilder (1983), 122 Ill. App.3d 338, 345, 461 N.E.2d 447. The thrust of respondent's argument is that the disposition of marital property would have been different had the court not found petitioner's testimony regarding various loans made to her to be credible. He maintains that petitioner's testimony on October 25, 1983, regarding her alleged loans from Thomas Edmire, was perjured and that she tampered with evidence, creating fictitious debts, in order to give the impression that she had had serious financial problems since the parties' separation. In support of this argument, respondent cites petitioner's testimony in a previous proceeding on March 11, 1980, at which she had testified that she had no outstanding debts.

• 1 We reject respondent's argument that the trial court erred in finding petitioner's testimony credible. It is a well-established rule that the credibility of witnesses should be left to the trier of fact because it alone is in the position to see the witnesses, observe their demeanor, and assess the relative credibility of witnesses where there is conflicting testimony on issues of fact. (In re Marriage of Dulyn (1980), 89 Ill. App.3d 304, 309, 411 N.E.2d 988; In re Marriage of McGowan (1980), 84 Ill. App.3d 609, 615, 405 N.E.2d 1156.) Such a determination will not be disturbed on appeal unless it is manifestly against the weight of the evidence. In re Marriage of Ligas (1982), 110 Ill. App.3d 1, 6, 441 N.E.2d 1277.

• 2 Without detailing them, we note that the record shows numerous inconsistencies in the testimony of both respondent and petitioner regarding financial matters. The court was faced with the task of evaluating the conflicting testimony and making a determination as to the relative credibility of the witnesses. We cannot say that the court's findings regarding loans and expenses of the parties were against the manifest weight of the evidence. We hold, therefore, that the court did not err in finding petitioner's testimony to be credible.

• 3 We likewise reject respondent's argument that the trial court erred in permitting petitioner's witness, Thomas Edmire, to testify in rebuttal after respondent had made a motion to exclude all nonparty witnesses from the courtroom.

At trial petitioner introduced a collection of cancelled checks in the amount of $27,411.50 drawn on Thomas Edmire's account and payable to cash, petitioner, or himself. All of the checks showed petitioner's endorsement, and petitioner testified that the endorsement evidenced that the checks represented loans to her from Thomas Edmire.

Following her testimony, an audit supervisor from Edmire's bank testified for respondent. He produced xerox copies of the checks that had been made by the bank at the time the checks were negotiated. At the time of negotiation, the checks contained only Edmire's endorsement. On rebuttal, petitioner testified that she had endorsed the checks after they had been paid but prior to her direct testimony.

Thomas Edmire remained in the courtroom during the testimony by the audit supervisor. He was subsequently recalled to the witness stand and testified that he had negotiated the checks and given the money to petitioner and that petitioner later endorsed the checks as verification of the loans.

Although the court may order the exclusion of a witness who is not a party during the taking of testimony, such exclusion is not a matter of right but rests within the discretion of the trial court. (Noone v. Olehy (1921), 297 Ill. 160, 173, 130 N.E. 476.) Moreover, since Edmire was testifying in rebuttal (see Hogg v. Fannie May Candy Shops, Inc. (1944), 321 Ill. App. 640, 640-41, 53 N.E.2d 494), and since there was no prejudice to respondent shown, we find no abuse of discretion. Darling v. Charleston Community Memorial Hospital ...


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