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06/30/87 In Re Marriage of Kenley Royce Wade

June 30, 1987

IN RE MARRIAGE OF KENLEY ROYCE WADE, SR.,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee and Cross-Appellant, and ELOISE

JUNE WADE, Respondent-Appellant and

Cross-Appellee

511 N.E.2d 156, 158 Ill. App. 3d 255, 110 Ill. Dec. 321 1987.IL.934

Appeal from the Circuit Court of Sangamon County; the Hon. John B. Crain, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The parties, Kenley Royce Wade (husband) and Eloise June Wade (wife), married in 1954. On December 1, 1980, husband filed a petition for separate maintenance alleging mental cruelty. On August 25, 1981, husband filed a motion to amend, converting his petition to one for dissolution. Wife filed a counterpetition and the case proceeded to hearing on grounds. On April 2, 1984, the circuit court of Sangamon County entered a judgment of dissolution of marriage. Following denial of wife's post-trial motion, wife appeals, and husband cross-appeals the order of the court.

Seven areas of contention are raised on appeal: (1) whether husband proved adequate grounds for dissolution, specifically in light of a prior divorce proceeding; (2) whether the trial court properly granted husband leave to amend the petition and judgment of dissolution to conform to the proof; (3) whether the trial court properly ordered sale of the marital residence; (4) whether the trial court properly divided the marital property; (5) whether the trial court properly awarded wife open-ended maintenance; (6) whether the trial court properly ordered husband to pay wife's attorney fees; and (7) whether the trial court properly ordered husband to maintain life insurance in such an amount as may be reasonably necessary to provide funds for the college education of his children.

Background

The parties married in May of 1954. Five children were born to the parties as a result of the marriage. Only the youngest child, Maynard, remained a minor at the time of dissolution. Custody of Maynard was awarded to wife subject to visitation by husband.

In May of 1976, the parties separated and on August 31, 1976, husband filed a complaint for divorce in Peoria County, alleging extreme and repeated inhumane mental cruelty. On April 4, 1977, at the close of husband's case in chief, the trial court granted wife's motion to dismiss, noting husband's failure to prove a prima facie case.

The parties remained separated, and in May of 1977, husband moved to Springfield, Illinois, where the parties owned additional property. Wife continues to reside in the marital residence in Peoria for which husband is financially responsible.

On December 1, 1980, husband filed a petition in Sangamon County, Illinois, for separate maintenance. Additionally, husband filed a motion for temporary relief, requesting that wife be ordered to relinquish two Federal income tax return checks in her possession. Wife did not file an answer or otherwise enter her appearance. Two subsequent hearings were held and wife did not appear. On July 6, 1981, wife was found to be in wilful contempt of court for failure to appear, and was granted 21 days to purge herself of the contempt. On August 25, 1981, husband filed a motion to convert his petition for separate maintenance to a petition for dissolution of marriage. The court allowed the motion.

On November 10, 1981, wife entered her initial appearance. Over husband's objection, wife was allowed to make an oral denial of the allegations of the petition for dissolution, and was granted leave to file an answer as well as any other pleadings deemed appropriate.

Following several continuances at wife's request, the case proceeded to hearing on the issue of grounds. At the Conclusion of evidence, the court found sufficient grounds to support the petition for dissolution.

On September 16, 1983, a hearing was held on property, and on April 2, 1984, a judgment of dissolution of marriage was entered. Following denial of post-trial motions, a final judgment was entered on September 22, 1986.

Grounds

At the hearing on grounds, husband testified that he currently resides in Springfield and is employed by the Department of Children and Family Services. Husband stated that throughout the entire course of his marriage, wife exhibited a total lack of cooperation and failed to act as a partner in the marriage. Wife withheld sex as a punitive measure. She refused to do laundry for husband. She purposely excluded husband from family meals.

Additionally, husband testified to recurring financial problems. Husband stated that after he moved to Springfield in 1977, he remained financially responsible for wife, the children, and the upkeep of the Peoria residence. Husband testified that although he sent wife money, he had to make special arrangements with the bank to make direct mortgage payments due to wife's failure to make timely payments. Husband stated that wife also allowed utility payments to lapse until she received disconnect notices. Husband indicated that wife's refusal to take any responsibility typified her conduct throughout the entire marriage. Husband further claimed that this conduct continues to create financial hardship for him.

After separation, wife refused to forward husband's mail, made numerous unauthorized purchases on husband's charge accounts and phone bill, and refused to turn over husband's tax return checks. Husband stated that he was forced to take out loans to pay off wife's expenditures and avoid bankruptcy.

Husband also encountered numerous problems in his attempts to establish a visitation schedule with Maynard. Wife often denied husband any contact with his son and on those occasions when visitation was permitted, wife would berate and belittle husband in front of his son, causing much humiliation and embarrassment. Additionally, wife refused to allow Maynard to visit his father in Springfield.

Husband indicated that he has not lived in the marital residence for well over five years. In May of 1976, husband and wife argued over wife's failure to balance the checking account. Wife then packed husband's clothes into grocery sacks and told him to leave. Husband was forced to move into the YMCA in Peoria. Husband stated that since the separation, he has suffered from loss of sleep and loss of weight. Husband is currently under a doctor's care for hypertension and high blood pressure. Husband testified that there was no chance of reconciliation.

Husband admitted that he is currently living with another woman and has been involved in this relationship since December of 1977. Wife, however, was unaware of this situation prior to the dissolution proceedings. Wife did not testify at the grounds hearing. At the Conclusion of evidence, the court found "nothing close to what one would call a marital relationship" and granted husband's petition. The court noted that the Peoria judgment of 1977 did act as a bar to conduct occurring prior to the entry of judgment, but that sufficient grounds still existed.

Property

At the hearing on property distribution, the court noted that there were six basic items involved: the residence in Peoria; the residence in Springfield; the household furnishings; husband's pension; and two cars. Husband testified that the Peoria residence was purchased in 1966 and that the current balance on the mortgage was approximately $540. Husband further stated that the Springfield property had an outstanding mortgage of approximately $1,150. Current appraisals for both parcels of property were admitted into evidence. The court noted that a decree of partition had already been entered with respect to the Springfield property.

Husband introduced evidence of his account with the State Employees' Retirement System. The parties stipulated to the value of husband's pension. Husband also introduced into evidence a list of current indebtedness.

Wife testified that she is currently employed as an Amway salesperson, but has not made any cognizable income. Wife stated that she is very much interested in returning to school and that she needs 30 additional credit hours to obtain her nursing degree. Wife stated that she has no independent funds available to finance her education.

The court ordered that both parcels of real estate be sold, with wife remaining in possession of the Peoria residence until sold. Husband was ordered to continue to pay the mortgages and taxes on both residences, as well as the utilities on the Peoria residence. Wife's attorney fees were ordered to be paid from the proceeds of the sale of the real estate, with the balance being divided equally. Wife was also awarded one-half of the stipulated value of husband's pension fund. Husband was deemed responsible for the marital debts and was ordered to pay wife periodic maintenance, the amount of which was to be determined subsequent to the sale of the real estate. Husband was also ordered to pay $500 per month for child support and maintain his existing medical insurance coverage on wife and Maynard.

Husband was additionally ordered to maintain life insurance "in such amount as may be reasonably necessary to provide funds for the college education expenses of the minor child and child, Francine M. Wade." The court reserved the issue of ...


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