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08/19/87 In Re Marriage of Mary Ellen Geis

August 19, 1987

IN RE MARRIAGE OF MARY ELLEN GEIS, PLAINTIFF-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

W. PETER GEIS, Defendant-Appellant

512 N.E.2d 1354, 159 Ill. App. 3d 975, 111 Ill. Dec. 717 1987.IL.1204

Appeal from the Circuit Court of Cook County; the Hon. Julia M. Nowicki, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and White, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

On January 4, 1980, a judgment was entered in the circuit court of Cook County dissolving the marriage of plaintiff-wife and defendant-husband. Incorporated into the judgment was a marital settlement agreement dated December 14, 1979. This appeal arises from a post-judgment petition for modification of support filed by plaintiff on June 9, 1983, and from a post-judgment petition for modification of maintenance and support filed by defendant on August 29, 1983.

Defendant appeals the trial court's January 16, 1986, written order denying his petition for modification of maintenance and child support and allowing plaintiff's petition for modification. The January 16, 1986, order incorporated oral findings made by the court on September 20, 1985. The trial court's order increased the sum of unallocated maintenance and child support required to be paid by defendant from $3,333.33 per month to $4,166.66 per month, and directed defendant to pay the increased sum retroactively from the date of filing of plaintiff's petition. Defendant also appeals the portion of the court order which directed defendant to pay to plaintiff's attorneys the sum of $5,500 of a total award of attorney fees and costs granted to plaintiff's counsel in the amount of $7,200.

On appeal defendant makes the following contentions: (1) the trial court's findings were erroneous and contrary to the manifest weight of the evidence; (2) the trial court erred in failing to consider defendant's contractual obligation under the judgment for dissolution of marriage to pay the college expenses of his children; (3) the trial court abused its discretion in ordering a retroactive increase in unallocated maintenance and child support to June 1983; and (4) the trial court abused its discretion in ordering defendant to pay more than 75% of plaintiff's attorney fees.

For the reasons stated below, we affirm the portions of the trial court's order which granted an increase in unallocated maintenance and support and made the award retroactive to the date of the filing of plaintiff's petition, and reverse the portion of the order which directed defendant to pay a part of plaintiff's attorney fees.

The parties were married on September 7, 1963, in River Forest, Illinois. Seven children were born of the marriage, namely, Geoffrey, born in 1964; Michelle, born in 1965; Pamela, born in 1966; Jennifer, born in 1968; Amy, born in 1969; Peter, born in 1971; and Colleen, born in 1975.

Pursuant to the terms of the settlement agreement plaintiff was granted custody of the seven minor children. Defendant was required, inter alia, to pay to plaintiff $40,000 per year ($3,333.33 per month) in unallocated family support, and, within his financial ability to do so, to pay the costs and expenses for a four-year university education for each child. Plaintiff was granted ownership of the marital residence, while defendant was granted ownership of a summer home in Wisconsin and a condominium in Florida. Additionally, a provision in the agreement directed that any income earned by plaintiff after the judgment would not comprise a ground for an application by defendant to reduce unallocated support.

Hearings on the parties' petitions began on April 30, 1985. At the time of the hearings, three children had reached majority. Two were enrolled at a college or university. Defendant was 42 years old and employed as a surgeon and director of surgical education at Lutheran General Hospital. At the time of judgment, defendant's gross annual income was $104,000 and his net take-home pay was $47,175. Defendant's net earnings in 1985 were $6,346.85 per month ($76,162.20 annually), and had remained substantially the same since March 1983. His gross annual income was $170,163 in 1983 and $198,088 in 1984.

It is undisputed that defendant had made all payments required to be made by him pursuant to the original judgment for dissolution. On appeal defendant alleges that he has been incurring educational expenses in the amount of $31,460 per year for the three oldest children. Additionally, he pays $1,800 per year for the parochial school tuition of the parties' daughter Jennifer.

Defendant's assets as of June 1985 included $32,548.50 in a Kemper Money Market account and $7,768 in a First Chicago account. He held a 100% interest in Professional Enterprises, an Illinois corporation which had cash accounts of $3,000. Defendant was the sole owner of Philos Enterprises, which owned two Cadillac and three Corvette automobiles, and had an account at Riverside National Bank with a balance of $5,946.88. He held the sole interest in the Illinois corporation of W. P. Geis, M.D., S.C., which owned a money market fund at Riverside National Bank with a balance of $15,000. Defendant's checking account balance was about $2,000.

Since the entry of the judgment of dissolution, defendant had acquired interests valued at $17,000 in two condominiums, a 54% interest valued at $36,200 in a partnership which owned three condominiums, and an interest valued at $15,000 in Park City Investments, a limited partnership. He also acquired a one-third interest valued at $12,000 in a 30-foot sloop sailboat and a one-half interest in a 30-foot racing sailboat which was purchased for $44,000. Defendant's monthly expenditures on the Wisconsin property he owned pursuant to the judgment for dissolution totaled $989.47 and his payments on the Florida property he owned pursuant to the judgment were $1,006.25. Defendant received little or no income from these properties. The kitchen in the Wisconsin home had been vandalized in 1982, which vandalism, according to defendant, rendered the property unrentable. Also in 1982, the condominium association established a rule which prohibited the leasing of the Florida townhouse.

Plaintiff testified at the hearings that she was 42 years old and in good health. She was unemployed at the time of the judgment. In 1983 she worked part-time as a secretary at a school. In May 1984 she became a real estate sales associate, as a result of which she had gross earnings of $1,850 in 1984 and $14,375.90 as of July 12, 1985. On the date of the entry of the judgment, plaintiff's sole debt was a mortgage on the marital home. On the date of trial, plaintiff owed $35,000 on the home mortgage, $8,000 on an automobile, $1,387 on a MasterCard, $120 to Carson Pirie Scott, and $12,000 to the Internal Revenue Service for 1984 income taxes. Plaintiff also had borrowed $2,048 from her brothers and $13,500 from the Northern Trust Bank.

In April 1984 plaintiff sold the 12- to 13-room marital home for $217,500. Plaintiff used the sale proceeds to repay the debts to her brothers and the Northern Trust Bank, and she placed down $100,000 on a nine-room home she purchased for $135,200. She also purchased a refrigerator, bookcase, hide-a-bed, and armoire. Plaintiff testified that the new home needed light fixtures, tuckpointing, a new garage door, electrical circuitry, and roof repairs. In addition to the home and equity of $2,000 in an automobile, plaintiffs' assets at the time of trial consisted of $71 in a checking account, $2,589 in a savings account, $5,000 in municipal bonds, an IRA with a balance of $2,500, and furniture and furnishings. As a ...


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