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04/26/94 MARRIAGE MARK HOCHLEUTNER

April 26, 1994

IN RE MARRIAGE OF MARK HOCHLEUTNER, PETITIONER-APPELLANT, AND MARCIA HOCHLEUTNER, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Kane County. No. 91-D-1967. Honorable Roger W. Eichmeier, Judge, Presiding.

Released for Publication May 27, 1994.

Woodward, McLAREN, PECCARELLI

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Petitioner, Mark Hochleutner, appeals from a judgment of dissolution of marriage in which the court ordered him to pay maintenance to respondent, Marcia Hochleutner. We affirm the judgment of the circuit court.

Petitioner filed his petition for dissolution of marriage from respondent on October 28, 1991. The parties were married in October 1972, and their son Matthew was born on May 21, 1973. In the prayer for relief, petitioner requested that the marriage be dissolved and that respondent be barred from any maintenance. Petitioner also requested a distribution of the property of the parties and "such other and further or different relief the Court may deem just."

Following an evidentiary hearing on September 22, 1992, in which both parties testified regarding their circumstances, the court entered a final, written judgment of dissolution dated November 12, 1992, in which, among other things, the court made provisions for the distribution of property, the payment of debts, and college tuition for the parties' son. The court also barred petitioner from receiving maintenance and ordered petitioner to pay to respondent maintenance in the amount of $600 per month, an award reviewable in 24 months. No objection was made to the award of maintenance at the hearing or at the time the judgment was entered, and no post-judgment motion was filed challenging the order of the court.

Petitioner appeals directly to this court, arguing that the court committed reversible error by exceeding its authority when it made an award of maintenance sua sponte because there were no pleadingsto raise the issue where the respondent made no request for maintenance, and there was no evidence presented to support the award.

At the hearing, petitioner testified that the only child of the marriage was Matthew, who was 19 years old and attended Elgin Community College. Petitioner's health was good, and he was employed at the Department of Transportation where his current salary was $32,800. He had been employed by the State since 1971. He and respondent were covered by medical insurance available from his employer and paid approximately $50 per month in premiums. Matthew was not covered by the policy. Each party had life insurance policies with a cash value of approximately $4,000, but petitioner had cashed one policy worth $3,000.

Petitioner was living in the marital home which was purchased in November 1988. It was valued between $92,000 and $94,000, and there was a $60,000 mortgage on the home. Respondent left the marital home and took with her some personal items, some china and a vacuum cleaner, among other things; about half of the personal property still remained in the home. Petitioner had only a day-to-day checking account to pay bills and had no other bank accounts. Petitioner's pension would be $650 per month if he retired at age 65. Petitioner testified that he had been making payments on the residence. He testified regarding the income and expense affidavit which he prepared (exhibit No. 1).

Respondent worked outside the home during the marriage, but did not make contributions toward the mortgage and utilities since she moved from the home. The parties owed $2,988 to the First Chicago Bank; petitioner made the payments on this debt. The debt included tuition for Matthew in the amount of $632. Also included in the First Chicago Bank debt was a Visa debt of respondent's in the amount of $1,069 and a Larkin Bank loan of $702 for a joint vacation, a truck payment, and a dentist's bill of $585. In addition to the First Chicago Bank loan, there was a Visa debt of $3,024. This debt included petitioner's dentist's bills totaling $1,519 and a balance due on June 27, 1991, of $1,505 for other items.

Petitioner stated that the Visa debt was a joint obligation. There was also a debt of $1,200 for respondent's medical care. Petitioner testified that two years earlier the parties signed a time-share resort contract for vacation purposes on which they owed $3,500. Petitioner had a 1986 Isuzu pickup truck, and respondent drove a 1985 Ford Escort; the vehicles had approximately the same value. There was no debt remaining on the Ford. The parties also owned a 14-foot aluminum boat that petitioner valued at approximately $600 to $700.

On cross-examination, petitioner testified that he earned overtimein addition to his salary. In 1989, his income including overtime amounted to $35,370, and, in 1990, it was $34,151. Petitioner further testified that his income for 1991 was $39,922.

At this stage of the hearing, the trial court observed that, although there was an appearance by respondent through counsel, there was no answer or counterpetition filed in the matter. The court inquired, "You aren't requesting any particular kind of relief in this case?" Respondent's counsel, William Weir, replied, "I believe that there was an answer filed. I don't see it in my pleading section, Judge. That's ...


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