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02/01/89 Myrna Stern, v. Thomas Stern

February 1, 1989





534 N.E.2d 533, 179 Ill. App. 3d 313, 128 Ill. Dec. 351 1989.IL.103

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


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.


This case involves an appeal from the denial of a motion to vacate a judgment for dissolution of marriage filed by petitioner-appellant, Myrna Stern, against respondent-appellee, Thomas Stern. On appeal, petitioner contends that: (1) the trial court abused its discretion in entering a judgment denying her maintenance; setting child support at $100 per week for the parties' two children; and failing equitably to divide certain property; (2) the trial court erred in granting respondent's motion to strike petitioner's amended petition to vacate the judgment for dissolution of marriage and denying petitioner an evidentiary hearing on the motion; and (3) the trial court abused its discretion in denying petitioner's motion to continue the trial, considering irrelevant matters regarding the motion, and making prejudicial comments to petitioner's counsel.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

The record indicates the following. The parties were married on July 19, 1976. On December 17, 1981, petitioner filed a petition for dissolution of the marriage, asserting that as of December 1981, Thomas Stern was employed as an attorney and Myrna Stern was a housewife. Two children were born of the marriage-Richard, born July 17, 1977; and Johnathan, born April 19, 1979. On February 4, 1982, the trial court entered an order requiring respondent to pay petitioner $448.70 per month as unallocated support and maintenance, based on the court's finding that respondent's net monthly income was $1,482. The order granted petitioner leave to file a petition for modification if she was able to show that respondent's income was greater than that found by the court.

On February 26, 1982, petitioner filed a petition to reconsider and modify the support order. Petitioner alleged that respondent had an annual gross income in 1981 of $193,000 from his professional corporation, and also had a six-figure income in 1980, 1979, 1978, and 1977; that respondent has the use of three automobiles from his professional corporation; and that respondent's monthly personal expenses far exceeded the monthly sum he was required to pay in unallocated support and maintenance. The petition asserted that respondent was able to pay a substantially greater sum in support and maintenance than he was paying, and that substantially greater sums were required in order to provide for the standard of living enjoyed by petitioner and the children during the marriage. Also on February 26, 1982, petitioner filed an amended petition for dissolution.

Respondent filed a response, asserting that petitioner was confusing respondent's personal income with income from his professional corporation, and denying the existence of any grounds for modification. On May 18, 1983, after a hearing, the trial court entered an order finding that respondent's monthly net income was $3,600, and requiring respondent to pay $1,260 (35% of his income) per month as unallocated maintenance and support. The order required respondent to pay the modified amount retroactively to February 26, 1982.

Trial of the matter was set for March 10 and 12, 1986. On March 12, 1986, petitioner's motion to continue the trial date was granted. The trial court later set May 27, 1986, as a hearing date on pending motions. On May 27, 1986, counsel for both parties appeared in addition to respondent. Counsel for petitioner requested a continuance, asserting two grounds. First, petitioner had indicated to her counsel by telephone that morning that she was "paralyzed with fear" and was unable to appear at the hearing. Petitioner's counsel indicated that he would be at "a tremendous disadvantage" if required to proceed with the hearing in the absence of his client. In addition, petitioner's counsel asserted that respondent had failed to comply with discovery requests regarding documents pertaining to respondent's income. Counsel for respondent stated at the hearing that his client would testify that he had complied with all discovery requests and had forwarded the requested documents to petitioner's former counsel. Counsel for petitioner responded that he wished to call petitioner's former counsel to testify as to whether they received the requested documents. Counsel for petitioner also stated his awareness, however, that petitioner's former attorneys were not available to testify on the morning of the hearing.

The trial court denied the motion for continuance. Petitioner's counsel declined to present evidence on the petition. Respondent testified that his net monthly income was $1,800. He stated that the finding by the trial court in May 1983 that his monthly net income was $3,600 was a reflection of income for his professional corporation and was not an accurate representation of his personal income. Respondent explained that his income tax returns from his professional corporation showed that after business expenses were deducted, his net monthly income from the corporation was $1,800. Respondent also testified regarding petitioner's education and employment experience; that petitioner was living in a home which she owned prior to the marriage; and that the parties' two children were in excellent health. Petitioner's counsel declined to cross-examine respondent.

On June 5, 1986, the court entered judgment for dissolution of marriage and included in the judgment the following findings and rulings. Respondent's monthly income was $1,800. The court ordered that $50 per week for each of the parties' two children was a reasonable and proper sum for respondent to pay as child support and was within statutory guidelines. Further, the unallocated maintenance and support previously paid by the respondent stands in lieu of, and in the place of, rehabilitative maintenance. In addition, petitioner's failure to take any action regarding her own support indicated to the trial court that rehabilitative maintenance "will serve no useful purpose."

The trial court also found that there was no marital property to be dealt with, in view of the decision in Stern v. Stern (1982), 105 Ill. App. 3d 805, 434 N.E.2d 1164, involving an appeal from an action based upon the petition of Thomas Stern for declaratory judgment against Myrna Stern regarding a post -- nuptial property agreement executed by the parties. In addition, the trial court held that respondent was responsible for payment of ...

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