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11/09/89 In Re Marriage of Vanessa Bush

November 9, 1989



Cross-Appellant, and GARRY TURNER,

Respondent-Appellant and Cross-Appellee

547 N.E.2d 590, 191 Ill. App. 3d 249, 138 Ill. Dec. 423 1989.IL.1763

Appeal from the Circuit Court of McLean County; the Hon. William T. Caisley, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.


This appeal follows the dissolution of the marriage of the parties, doctors Vanessa Bush and Garry Turner, on January 21, 1985. The hearing for custody, temporary child support, and visitation was held April 28, 1986. During the next two years, petitioner Bush filed four rules to show cause and hearings were held. The trial court entered its final order on September 20, 1988.

The parties dispute the trial court's finding as to respondent's status in a medical partnership and the inclusion of goodwill in the valuation of the partnership, with eight other issues involving the parties' son, Alan, and relating to child support, custody, and visitation.

The parties, both physicians, were married in 1982. Petitioner, now 33 years old, began her medical career as an emergency room physician at Brokaw Hospital in Normal, Illinois. Respondent, a 34-year-old anesthesiologist, began his medical career at Anesthesia Associates, a medical partnership in Bloomington, Illinois. He is now a partner there.

The parties have one child, Alan V. Turner, born October 10, 1984. Petitioner testified respondent physically and mentally abused her before and during her pregnancy. The parties separated eight days after Alan's birth. Petitioner lived with her parents in Chicago during her six weeks of maternity leave and returned to the parties' home in Bloomington in early December 1984. She and respondent lived in the marital home until January 18, 1985, but never reconciled. The petitioner filed for dissolution in Livingston County on December 12, 1984. The circuit court of Livingston County entered the decree of dissolution of marriage on January 21, 1985, on the ground of mental cruelty.

Petitioner continued to work as an emergency room physician at various hospitals in central and northern Illinois. In May 1986, petitioner married Lawrence Webster, also a physician. She and Alan moved to Dr. Webster's home in Decatur in June 1986. Various baby-sitters, some of them live-ins, cared for Alan while petitioner worked part time at Brokaw Hospital in Normal. In May of 1987, petitioner, Lawrence Webster, and a third party purchased Decatur Urgent Care Center. Petitioner began working at the Decatur Urgent Care Center in October 1987. She is still employed there, and her monthly gross salary is $7,200 per month. Dr. Webster's gross salary is also $7,200 per month.

Respondent continues to work for Anesthesia Associates. His estimated gross salary for 1987 was approximately $299,739, or $24,978 per month. Respondent has not remarried.

On April 28, 1986, the circuit court of Livingston County held a hearing on petitioner's petition for temporary custody and child support and on respondent's petition for temporary visitation. The court's temporary order provided for joint temporary custody, with primary physical custody remaining with petitioner. Respondent was to pay $1,000-per-month child support: $800 directly to petitioner and $200 to a uniform gift to minor or other similar account. The order provided respondent with temporary physical custody on alternate Wednesdays through Sundays and visitation on certain holidays and birthdays. The order also included elaborate instructions on transporting the child for visitation, as the parties could not reach agreement on the matter. On its own motion, the Livingston County circuit court ordered the case transferred to McLean County on November 6, 1986.

During the two years between issuance of the temporary and final orders, respondent paid $4,833 to petitioner as temporary child support. By March of 1988, temporary child support arrearages totaled $12,567. Petitioner filed several rules to show cause during the same period. Respondent admitted he did not make temporary child support payments as ordered and gave five reasons for refusing to pay, none related to ability to pay. First, he alleged petitioner denied him visitation rights as he did not know the whereabouts of his son for seven weeks following petitioner's marriage to Lawrence Webster. Second, respondent cited two brief confrontations between himself and petitioner in August and September of 1986. Testimony from each party indicates respondent had the child pursuant to court-ordered visitation. There was confusion or disagreement over the length of the child's stay with his father on each occasion, and petitioner entered respondent's home uninvited to remove the child. Physical confrontations resulted. The third reason given for refusing to pay child support was petitioner never told respondent how she intended to use the monies to support the child. Next, respondent claimed he should not pay temporary child support because he had custody of Alan eight days each month and contributed directly to Alan's support during those days. Finally, respondent refused to pay temporary child support because he believed all the child's needs were already being met.

Respondent did establish a $1,600 certificate of deposit in the child's name in 1986, pursuant to the court's order that he place $200 per month in trust. He established an irrevocable trust for the child in August 1987. He testified petitioner refused to serve as co-trustee.

At a hearing in March 1988, the court found temporary child support arrearages of $12,567. The court declined to hold respondent in contempt of court for his failure to make payments, but ordered him to establish a trust fund for the child of $12,567.

The court entered its final order on September 20, 1988. The court awarded joint custody, physical custody to remain with petitioner during the school year. During the school year, Alan will visit his father on alternate weekends and will live with his father for approximately two months each summer. During summer visitation, petitioner has absolutely no visitation rights. This visitation schedule will begin when the child enters kindergarten. Until then, the visitation schedule established under the temporary order remains in effect. The court ordered respondent to obtain a $100,000 life insurance policy "to guarantee payment of child support" and to name as beneficiary the trust he had been directed to establish for temporary child support arrearages. The court ordered respondent to establish a trust fund on behalf of the child of $18,767. This amount included temporary child support arrearages, the CD, and monies in the trust fund respondent had already established pursuant to the temporary order.

Respondent is to pay $800 per month from Anesthesia Associates directly to petitioner for child support. He is to continue to contribute to the trust fund according to the following formula: "Respondent's payments into the trust fund shall be in an amount equal to 20% of his net income as defined by statute less the cost of the $100,000 life insurance policy premium . . . and the $800 per month cash support payments to petitioner . . .." The court found respondent in contempt of court for failing to pay $225 in temporary child support between March and June of 1988. Respondent was sentenced to seven days in jail, but could purge himself by paying $225 immediately to petitioner. Finally, the order divided marital property between the parties. The dispute involving property division relates to respondent's partnership status in Anesthesia Associates and valuation of the partnership interest. Respondent contends a partnership interest did not exist at the time of the January 21, 1985, dissolution.

Dr. Gilbert Causey, one of the founders of Anesthesia Associates, testified that the partnership's usual practice is to hire an anesthesiologist for one year as an employee with a guaranteed salary for that year. During the employee's first year of employment, partnership for the employee is discussed among the partners. All previous employees were offered partnership during the first year and began their second years with the firm as partners, earning a guaranteed salary plus a percentage of the partnership's net profits for the year. Each entered a "standard written contract" designed for new partners. Upon leaving the partnership, former partners are entitled to their percentages of accounts receivable.

Respondent began working for Anesthesia Associates on August 1, 1983. He was hired as an employee of the partnership with a guaranteed first-year salary of $90,000. Anesthesia Associates discussed partnership with respondent during his first year, but did not offer him partnership as both sides had doubts about his remaining with the firm. Respondent and the partnership orally agreed respondent would remain for a second year (August 1984 through August 1985) as an employee, to allow the partnership additional time for evaluation. Respondent's guaranteed salary for his second year of employment was $100,000. If his earnings exceeded the $100,000 guaranteed salary during that second year, respondent was additionally entitled to 16% of the ...

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