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12/12/89 In Re Marriage of Larry Admire

December 12, 1989

IN RE MARRIAGE OF LARRY ADMIRE, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

JOANN ADMIRE, Respondent-Appellant

549 N.E.2d 620, 193 Ill. App. 3d 324, 139 Ill. Dec. 894 1989.IL.1925

Appeal from the Circuit Court of Madison County; the Hon. George Filcoff, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. HOWERTON and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Respondent, Joann Admire, appeals from a judgment of the circuit court of Madison County which denied, in part, her second amended petition for a rule to show cause why petitioner, Larry Admire, should not be held in contempt of court, and granted petitioner's motion for setoff. For the reasons which follow, we affirm in part and reverse and remand in part with instructions.

The record before us shows that the parties' marriage was dissolved pursuant to a judgment of dissolution entered by the circuit court of Madison County on September 2, 1980. Following post-judgment motions, that judgment was subsequently amended by orders entered by the court on January 7, 1982, and May 4, 1982. As so amended, the judgment of dissolution required, inter alia, (1) that petitioner maintain at least $30,000 of life insurance on his life and make respondent the beneficiary of that insurance; (2) that petitioner pay all marital debts and family expenses incurred before September 2, 1980; (3) that petitioner pay respondent $5,000 in maintenance under an installment plan, with payments to commence on the fifth anniversary of the September 2, 1980, dissolution judgment; and (4) that respondent be "awarded the marital residence as her sole and separate property free and clear of any interest of Petitioner."

With respect to the issue of maintenance, the judgment of dissolution, as amended by the circuit court's order of May 4, 1982, specifically provided that petitioner was to pay the $5,000 he owed, in annual installments of $1,000 each, commencing on the fifth anniversary of the September 2, 1980, judgment. The judgment further provided that petitioner was to pay respondent interest at the rate of 6% per annum during the four-year period before the $1,000 annual payments commenced.

With respect to the award of the marital residence to respondent, the dissolution judgment, as amended by the circuit court's order of January 7, 1982, provided that the residence belonged solely to respondent, to keep or sell as she saw fit, and that petitioner was to

"continue to pay the existing mortgage on said property until it is paid in full. The Respondent is under no obligation to repay the Petitioner the amount of the mortgage so paid, or to be paid at any time in the future, by Petitioner. In the event that Respondent decides to sell the marital residence, Petitioner is ordered to make necessary arrangements to pay, and shall pay, the mortgage balance in full at the time of the sale (including interest too) so that the total amount realized from the sale shall be the exclusive property of the Respondent."

The terms of the original September 2, 1980, judgment of dissolution further required petitioner to pay the insurance on the residence, while responsibility for taxes was placed on respondent. These requirements remained unchanged by either of the subsequent modifications.

In November of 1984, respondent filed a petition for a rule to show cause why petitioner should not be held in contempt of court. That petition was subsequently amended in May of 1985, then amended for a second time in September of 1987. In her second amended petition, respondent alleged that petitioner had failed to make any of the payments required by the dissolution judgment with respect to maintenance, that he had failed to maintain a $30,000 life insurance policy on his life with respondent as the beneficiary, that he had failed to pay all of the marital debts and expenses incurred before September 2, 1980, and that the marital residence had been foreclosed upon because petitioner had failed to pay off the mortgage when it fell due. Respondent requested that petitioner be held in contempt of court for failure to comply with the terms of the dissolution judgment, that he be ordered to pay respondent the monies he owed her pursuant to that judgment, that he be required to pay to her the value of the "property of the marital residence lost to foreclosure," and that she be awarded her reasonable attorney fees.

Petitioner responded by filing a petition of his own in which he requested that he be granted a setoff against any monies which he owed respondent and that respondent be ordered to pay him the sum of $29,625.58. As grounds for this request, petitioner alleged that he had been forced to pay the real estate taxes on the marital residence for the years 1981 through 1983, even though the September 2, 1980, judgment of dissolution had made the payment of those taxes respondent's responsibility. Petitioner further alleged that the foreclosure on the marital residence was actually caused by respondent as a direct result of her "failure to either sign a new mortgage, execute and convey a deed in lieu of foreclosure, or letting the marital residence deteriorate and waste," and that because of the foreclosure he did not receive $29,625.58 which he would otherwise have been paid. Petitioner's claim to this $29,625.58 was premised on his belief that the September 2, ...


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