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08/29/88 In Re Marriage of Sherry Calisoff

August 29, 1988

IN RE MARRIAGE OF SHERRY CALISOFF, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

CHARLES I. CALISOFF, Respondent-Appellant (Doss,

Puchalski & Keenan, Ltd., Cross-Appellant)

531 N.E.2d 810, 176 Ill. App. 3d 721, 126 Ill. Dec. 183 1988.IL.1320

Appeal from the Circuit Court of Cook County; the Hon. Howard R. Kaufman, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. O'Connor, J., concurs. JUSTICE QUINLAN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Respondent, Charles I. Calisoff, appeals from the allocation of marital property, liabilities, and attorney fees, as well as the amount of attorney fees and the requirement that he pay maintenance and his children's college expenses, incident to the trial court's judgment dissolving his marriage to petitioner, Sherry Calisoff. One of petitioner's attorneys, Owen Doss of Doss, Puchalski & Keenan, Ltd., filed a cross-appeal in this matter seeking an increase in fees from the $10,000 awarded by the trial court to the $21,396.45 initially requested in his petition. For the following reasons, we affirm in part and reverse and remand in part.

A review of the record discloses that Charles and Sherry were married March 11, 1962, and that Sherry instituted divorce proceedings in January 1982. There were two children both of the marriage: Joy was 19 years old when dissolution was granted and was attending the University of Southern California, and Adam was nearly 17 and had just completed his junior year in high school. The parties were awarded joint custody of Adam with physical possession to petitioner.

Charles, who was 52 years old at the time of dissolution, is an attorney, having received his law degree from Yale University. He has worked as a sole practitioner in the courts of Cook County, Illinois, with a specialization in domestic relations law, for approximately 20 years. He is a member of various matrimonial law committees and a director of others. Charles' adjusted gross income for years 1979 through 1984 was as follows: $81,000, $93,000, $96,000, $62,918, $68,042, and $39,422.

Sherry Calisoff was 47 when the divorce decree was entered. She received a bachelor's degree in education from the University of Michigan in 1960 and taught for a few years thereafter. She subsequently retired from teaching to raise a family. In June 1981, a few months prior to the couple's physical separation, Sherry obtained a certificate as a paralegal from Mallinckrodt College in Wilmette. She commenced employment as a paralegal, working three to four days per week for one attorney, and freelancing in the same capacity on the fifth day for other attorneys in the Chicago area. Sherry earned a gross income of $12,483 in 1985, resulting in a net earning after taxes of $9,880. She also grossed approximately $1,000 that same year from her free-lance work. In 1986, her expected net earnings were about $12,000.

Sherry testified that in 1981, 1982, 1983, and 1984 she filed her taxes separately, upon the advice of counsel, after respondent allegedly threatened to stop paying income taxes to force a sale of the marital residence. As a result of respondent's failure to meet his Federal income tax obligations on his individual returns for 1981, 1982, and 1983, a tax lien was filed against the marital home, and his interest in the property was sold to Ohannes Korogluyn. Petitioner then borrowed $40,000 from the First Illinois Bank of Wilmette in order to repurchase respondent's interest from Korogluyn, creating an additional $3,000 plus interest obligation. During the pendency of these proceedings, petitioner also paid real estate taxes on the marital residence of $2,749 in 1983, and $2,508 in 1984.

Respondent denied any intentional reduction in income to inhibit his ability to pay taxes. Rather, he explained that between 1975 and 1980, approximately 75% to 80% of his cases involved child custody matters, in which he either represented a litigant or was appointed by the court to represent minor children. Because he received no such court appointments since 1980, his cases in the area of child custody ultimately diminished to 10% of his workload in 1984. Respondent stated that while in 1980, $75,000 of his fees were generated from these types of cases, in 1984, they only provided $8,000 of his income. He further testified that he informed petitioner of his poor financial condition in January 1981, and in 1984, sought other employment as several letters admitted into evidence reflect.

To sustain his failing practice, respondent borrowed over $90,000 from his parents and other sources throughout the period of 1981 to 1985. Defendant testified that in 1984 he also received loans from his paralegal, Allison Blair, which accounted for the discrepancy between his nonbusiness expenditures and his adjusted gross income that year. It is unclear whether the money respondent received from Ms. Blair constituted his own earned client fees which Ms. Blair was holding during that time or was from her own funds.

On June 13, 1986, the trial court rendered the decree of dissolution appealed from herein. Regarding the division of marital property, the trial Judge ordered that Sherry was to receive the marital home in Northbrook, Illinois, worth approximately $132,000 after encumbrances, together with furniture contained therein valued at $15,000, a 1981 Oldsmobile worth $1,000, stock valued at $900, and investments valued at $20,000. Thus, Sherry received property valued at $168,900. The trial court awarded Charles furniture worth $5,000, his law practice valued at $1,000 pursuant to respondent's post-trial motion, stock valued at $1,890, a coin collection worth $7,500, investments valued at $20,000, and a piano worth $2,000. The total value of these assets was $37,390. In addition, the trial court attributed the following marital assets no longer in existence to respondent: $54,000 on deposit in an HR-10 plan, $8,890 refunded from the Internal Revenue Service, $8,834 from the sale of certain stock, and $35,000 in miscellaneous savings accounts.

The trial court also ruled in its judgment that respondent was to hold petitioner harmless on the obligation due First Illinois Bank of Wilmette and Ohannes Korogluyn, as well as to reimburse petitioner for the 1983 and 1984 real estate taxes. The judgment for dissolution of marriage further requires that respondent pay 75% of the costs incurred in connection with these proceedings totaling $2,564, $12,000 of insurance loans, $832-per-month maintenance for a period of five years, subject to review at the end of two years, $750 per month for child support, all of the children's extraordinary medical and dental expenses through college, and pursuant to post-trial modification, the children's college expenses for four years excluding any grants or scholarships attained by the children as well as their medical insurance during that time. The trial court also ordered respondent to pay his attorney, Seymour Regal, fees of $20,000, in addition to 75% of petitioner's attorney fees totaling $37,500. It is from the above rulings that respondent appeals.

Respondent's initial argument on appeal is that the trial court abused its discretion in dividing the marital assets and liabilities inequitably in favor of petitioner. Specifically, he contends that the trial court ignored his financial contribution to the marriage and failed to adjust the property distribution once the court devaluated his law practice from $69,000 to $1,000 pursuant to his post-trial motion. Particularly in dispute is the trial court's Conclusion that respondent dissipated over $100,000 worth of marital property.

It is well established that when a Dispositional order is entered upon dissolution of a marriage, it must be equitable. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238; In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 459 N.E.2d 1374.) Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 503(c)) (Act) incorporates a partnership theory of marriage, and thus an order disposing of the parties' property should recognize and compensate each party for his or her contribution to the marriage. (In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 459 N.E.2d 1374.) An important objective to be reached by the trial court in entering such an order is to place the parties in a position from which they can begin anew, in addition to providing adequate support for the children. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) The trial court's decision will not be disturbed absent an abuse of discretion. In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022.

Here, the trial court clearly abused its discretion in distributing the marital property and debts between the parties. The trial court awarded petitioner assets worth $168,900, including the marital home, while awarding respondent only $37,390 of assets and requiring him to assume virtually all of the marital debts, totalling nearly $63,000. In addition, respondent is required to pay under the dissolution order $57,500 in attorney fees, $832-per-month maintenance, and college expenses for four years for the parties' two children. Viewing these debts and expenses in light of respondent's current financial condition, respondent cannot possibly meet his own personal obligations, including overdue tax obligations and substantial loan payments. By distributing the marital property and debts in such an inequitable manner, the trial court did not put respondent in a position from which he could start anew, thus violating the principles discussed above. While there ...


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