Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

04/19/94 HELEN A. THURSTON v. JOHN C. THURSTON

April 19, 1994

HELEN A. THURSTON, PLAINTIFF-APPELLEE,
v.
JOHN C. THURSTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 90 D 42. Honorable Richard E. Grawey, Judge Presiding.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

Plaintiff, Helen A. Thurston brought a Petition to Modify the January 23, 1991 judgment awarding her maintenance entered by the circuit court of Peoria County. The court entered an order on November 24, 1992 awarding the plaintiff an increase in maintenance. The defendant, John C. Thurston then filed a motion to reconsider which was denied on February 1, 1993.

The defendant appeals contending that Helen failed to show a substantial change in circumstances of either party justifying an increase in maintenance.

Upon dissolution of the marriage of John and Helen, the trial court entered judgment on January 23, 1991, ordering John to pay Helen maintenance of $1,400 per month. At that time John worked for Caterpillar Inc. and the United States Reserves. The ordercontemplated that on September 1, 1991, John's income would decrease as a result of being forced to retire from his position with the United States Reserves and accordingly provided that his maintenance obligation would decrease to $900 per month at that time. John unexpectedly continued his work for the United States Reserves for almost a year longer than anticipated, and continued to pay Helen $1,400 per month maintenance through July, 1992, pursuant to the original order. Helen was receiving $900 per month at the time of the October 15, 1992 hearing on the petition to modify maintenance. The trial court ordered an increase in the maintenance award from $900 to $1,150 per month.

At the October 15, 1992 hearing on the petition to modify maintenance, Helen testified that at the time of the January 23, 1991 judgment, she was earning $6.60 per hour resulting in a net income of $769 per month. She also testified that her expenses were then $2,354 per month. Helen was laid off on April 14, 1991, and remained unemployed until December 27, 1991. She received unemployment compensation of $118 per week beginning April 14, 1991. Helen worked part-time as a sales person earning minimum wage from December 27, 1991 until the end of February, 1992. In March of 1992, Helen began a full-time job at Pioneer Park Mitsubishi in Peoria, Illinois. Helen testified that at the time of the October 15, 1992 hearing she earned $5.25 per hour and that she had a net income of $861 per month and expenses of $1,866.86 per month.

John testified that since the January 23, 1991 order he has retired from the military reserves losing income of approximately $17,000 per year. He received a raise in his gross income from Caterpillar of $224 per month since January 23, 1991 resulting in an increase in his net income of $153.62 per month. John testified that his monthly expenses had increased $107 since the January 23, 1991 order to $4,174 per month. John further testified that he has remarried since January 23, 1991 and that his new wife is a registered nurse who works for two doctors. He and his wife have purchased a house for $149,000 for which his new wife made a down payment of $52,000. John and his new wife have also made $6,000 in home improvements and John has leased an automobile for which he pays $432 per month. John testified that he did not know his new wife's exact income and that she used quite a bit of her income to support her 2 sons of college age. John denied that his new wife shared any of his $4,174 in monthly expenses.

At the Conclusion of the October 15, 1992 hearing, the court ordered that John's maintenance obligation to Helen be increased from $900 to $1150 per month beginning November, 1992. John fileda motion to reconsider which the court denied on February 12, 1993. In denying the motion to reconsider the trial court stated that in determining whether there has been a substantial change of circumstance, it is appropriate that the court may consider the remarriage of the Defendant to the extent that the new spouse contributes to the defendant's living expenses and the court specifically finds in this case that Seven Hundred Dollars ($700) of Defendant's monthly expenses are found to be shared.

A reviewing court will not disturb a trial court's modification of a maintenance award absent a clear abuse of discretion. ( In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 326, 522 N.E.2d 738, 742, 119 Ill. Dec. 76.) A court can modify a maintenance award under section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) "only upon a showing of a substantial change in circumstances." (750 ILCS 5/510(a) (West 1992).) The party seeking modification of a maintenance award bears the burden of establishing a substantial change in circumstances. ( Garelick, 168 Ill. App. 3d at 327, 522 N.E.2d at 742.) In deciding whether a maintenance award should be modified, a court should consider the same factors used in making an initial maintenance award. ( In re Marriage of Plotz (1992), 229 Ill. App. 3d 389, 391, 594 N.E.2d 366, 368, 171 Ill. Dec. 514.) Under section 504 of the Act such factors include: "(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance; (2) the needs of each party; (3) the present and future earning capacity of each party." 750 ILCS 5/504(a) (1992); see also In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 793, 566 N.E.2d 429, 437, 152 Ill. Dec. 742.

We now address whether the trial court abused its discretion by finding a substantial change in circumstances and ordering a $250 per month increase in maintenance. In the original judgment, the court did provide for the diminution of payments when the husband's salary as a reserve officer terminated. However, the court made no effort to prophesy or even speculate about the consequence of such reduction and certainly made no finding that the cessation of such payment would be reasonable for both parties.

The reduction in the wife's income is substantial. That the wife reduced her expenses and standard of living to fit her compelled reduction in income does not render such reduction immaterial. It was a significant change in circumstances no where considered or contemplated in the original judgment. To compound the problems, the wife was either wholly or partially unemployed during the period prior to this modification proceeding.

The trial court may consider the financial circumstances andneeds of both parties in light of all the facts surrounding both households. ( In re Marriage of Garelick (1988), 168 Ill. App. 3d at 327, 522 N.E.2d at 743.) Related both to the change in circumstances and the propriety of the modification, is the increase in the mortgage payment made by the husband. Because the new wife made a substantial downpayment contribution to a new house and because there is no segregation of the mortgage payment, it can be inferred, as the trial court did, that half of the $700 mortgage payment went to the benefit of the husband's new wife.

Additionally, we note the trial court found that $1,492.00 of the husband's expenses were for the benefit of the husband and his new wife. In this connection, we note that we are primarily concerned with the allocation of the husband's expenses as they effect his ability to contribute to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.