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06/12/87 In Re Marriage of Robert M. Magnuson

June 12, 1987

IN RE MARRIAGE OF ROBERT M. MAGNUSON, PETITIONER-APPELLEE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and Cross-Appellant, and PATRICIA A. MAGNUSON,

Respondent-Appellant and Cross-Appellee

510 N.E.2d 437, 156 Ill. App. 3d 691, 109 Ill. Dec. 569 1987.IL.803

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

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal proceeds from Patricia A. Magnuson's (Patricia) petition for modification of judgment of dissolution of marriage. The trial court granted her petition by awarding her an increase in maintenance from $750 to $1,200 per month. A subsequent order granted her amended petition for attorney fees by requiring Robert M. Magnuson (Robert) to contribute $8,500 toward her fees and costs. Both parties have appealed these two orders. Patricia argues that the trial court abused its discretion in failing to award her maintenance in excess of $1,200 and in failing to require Robert to pay all of her attorney fees and costs. Robert contends that the trial court erred in granting Patricia any increase in maintenance and in requiring him to pay any of Patricia's attorney fees and costs. We affirm the maintenance award and reverse the attorney fee award.

Robert and Patricia were married on December 30, 1960. Two children were born to the parties as a result of the marriage. After 17 years of marriage, Robert filed for dissolution of marriage. A supplemental judgment order was issued on December 5, l979. Custody of one minor child was awarded to Robert. Custody of the other minor child was awarded to Patricia. The court ordered Robert to pay Patricia child support in the sum of $800 per month and rehabilitative maintenance of $450 per month for 48 months. The order also set forth a distribution of property.

On January 31, 1980, an agreed order was entered temporarily awarding Robert the custody of both minor children. This order also released Robert from paying the $800 monthly child support.

The trial court issued its order on February 6, 1980, granting the parties a dissolution of marriage nunc pro tunc December 5, 1979.

On March 31, 1980, the trial court granted Patricia's post-trial motion, vacating its supplemental judgment order dated December 5, 1979. The court granted the parties a new trial. This order, however, was vacated on April 29, 1980, by an order reinstating the original supplemental judgment.

On May 20, 1980, Patricia petitioned the court for an order modifying the maintenance award. The motion noted Patricia's intent to file a notice of appeal.

On May 23, 1980, Patricia appealed the supplemental judgment order dated December 5, 1979, and the order vacating the April 29, 1980, order. On August 26, 1981, this court, in an order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23), affirmed the supplemental judgment order of the trial court with one exception. (In re Marriage of Magnuson (1981), 98 Ill. App. 3d 1203.) Our court ruled that the trial court abused its discretion in limiting Patricia's maintenance award to a period of 48 months. We reasoned that "[in] view of the total circumstances of this case including the age of the wife, her long absence from the labor market, the condition of her physical and emotional health, the standard of living of the parties, and the husband's ability to pay maintenance, the 48-month limitation on the maintenance award to the wife is speculative." 98 Ill. App. 3d 1203 (unpublished Rule 23 order) (slip op. at 3 -- 4).

On July 7, 1980, the trial court found that there had been a substantial change in circumstances justifying an increase in maintenance and ordered Robert to pay Patricia maintenance in the sum of $750 per month, retroactive to February 1, 1980.

On March 26, 1984, Patricia filed her second petition for modification, which forms one of the two bases of this appeal. This petition alleges that substantial and material changes of circumstance with respect to each of the parties have occurred since the entry of the July 7, 1980, order. Patricia alleges that in spite of her many efforts, she has been unable to secure employment. She relates that in 1981 she undertook a course of studies in the field of nursing, but that at the end of 2 1/2 years she was disqualified from further participation therein by reason of her physical impairments, i.e., eye difficulties. She also alleges that she is without funds sufficient for her proper maintenance, sustenance, and livelihood. She further alleges that Robert is gainfully employed and possesses property and assets of substantial worth. The petition seeks a modification of the original award and an order requiring Robert to pay Patricia's attorney fees incurred by her in connection with her institution and prosecution of the present proceedings. Extensive discovery was taken by both parties.

On January 7, 1985, her attorney, Barth H. Goldberg, withdrew as counsel for Patricia. Sometime thereafter, Patricia was represented by William E. Jegen (Jegen). In a letter agreement dated ...


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