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September 15, 1995


Appeal from Circuit Court of Scott County. Nos. 85D10, 85D15. Honorable Ronald F. Robinson, Judge Presiding.

Petition for Rehearing Denied October 17, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Honorable Rita B. Garman, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Petitioner Debra Grote, formerly Debra Freesen (Debra) appeals from an order of the circuit court of Scott County granting her petition for increased child support payments and denying her request for attorney fees. Respondent Oscar Robert Freesen (O.R.) cross-appeals the court's order on reconsideration denying a reduction in child support payments upon graduation of the parties' eldest child from high school in June 1995.

The parties were married in 1971 and divorced in September 1986. Debra was awarded custody of the parties' minor children in the divorce judgment, but the children were to reside with O.R. for six continuous months of the year. He was to pay $1,250 per month in child support payments and, in addition, pay all medical expenses and any special-education residential and summer schools, or other camps, for the children. O.R. was to pay $1,916.97 maintenance to Debra for 72 consecutive months, regardless of her remarriage. He was also to pay tuition, fees, and books for Debra at a college or university from January 1, 1987, to December 31, 1992. A qualified domestic relations order was entered entitling Debra to a 50% share of O.R.'s pension accumulated during their marriage.

In 1992, the parties agreed the children would live with Debra during the school year and with O.R. during the summer. Debra filed a first-amended petition to modify child support payments on November 22, 1993. In addition to requesting increased child support payments, the petition asked that any increase be made retroactive to September 1988 and that the court award Debra attorney fees on the petition. Hearings on the petition were held on five separate occasions from November 1993 to April 1994.

At the November 22, 1993, hearing on the petition, O.R. testified that the parties have three minor children, Oscar Robert IV (knownas "Boomer"), age 16; Willard (known as "Willy"), age 14; and Mariah, age 12. An older daughter, Sunset Jennifer, died in 1989. He is a vice-president of Freesen, Inc. (Freesen), a road construction contractor. He remarried in March 1991. Under the divorce decree, he stopped paying maintenance to Debra in September 1992. O.R.'s salary is approximately $52,000 per year, and bonuses he receives account for the difference between this amount and his total income each year. He received salary and bonuses of $470,899 in 1987, $212,364 in 1988, $502,556 in 1989, $347,015 in 1990, and $212,800 in 1991. His total income for 1992 as shown on his Federal income tax return was $341,926. As of November 22, 1993, his compensation from Freesen totaled $175,002. In addition to this compensation from Freesen, O.R. received interest and dividend income. He testified regarding his involvement in several business enterprises, one of which was ORF, Inc. (ORF), a closely held corporation with three shareholders--O.R., his father, and his brother. ORF was a limited partner in Sixth Street Developers, which owned 125 acres of commercial property in Springfield. Attempts were being made to develop this property into lots and sell them; to date, the project has had limited success. Sixth Street Developers has a heavy debt load because of this venture, and O.R. testified that ORF is responsible for 40% of this debt. He is personally liable for one-third of this 40% share, and he had borrowed funds to pay his part of the debt. He also incurred several loans in late 1993 and early 1994 for payment of income taxes, legal fees, purchase of a truck, and a farm he is purchasing with his father. He has a home worth approximately $125,000, and the value of his Freesen stock is almost $542,000.

The bonuses O.R. receives vary from year to year, depending upon Freesen's profits. In 1993, he received a bonus of $125,000 for fiscal year 1992. Freesen's board of directors decided not to pay a bonus for 1993 because adverse weather affected progress of work projects. O.R. testified that although he is a member of the board of directors, he did not participate in that decision. O.R. also testified that he must declare $50,000 in income from ORF on his 1993 income tax return, which is his share of profit from that corporation. However, he will not actually receive this money; it was retained by ORF to pay off corporate debt.

O.R.'s affidavit of income and expenses listed total monthly living expenses of $3,699 for O.R., his current wife, and the three children. He testified this figure is exact, not merely an estimate. He also stated that over the years he has purchased extra items for the children such as cars, motorbikes, and four-wheelers. His wife testified that she buys the children name-brand clothing, but tries to take advantage of sales.

The parties differed in their opinions regarding the standard of living enjoyed by the children during the marriage. Debra, a homemaker, testified that the family lived in a $560,000 house. They took vacations to Disney World and a dude ranch in Arizona, and took skiing vacations to Utah and New Mexico. In his testimony, O.R. added facts indicating that these vacations were not luxurious and that his parents contributed money for some of the trips. Debra testified she and O.R. indulged the children; she shopped at the best stores, and the children never lacked for anything they wanted.

Debra testified that expenses for the children had increased significantly since 1986. For example, food expense increased from $800 per month to $1,350 and clothing expense increased from $500 per month to $1,300. Debra buys the children very nice, expensive clothing; it is what they want and are accustomed to wearing. She also buys them expensive birthday and Christmas gifts, spending $500 per month. She gives the children a total of $350 per month in spending money. School lunch money ($5 per day for each child) is $350 per month. She spends $900 per month for recreation, social functions, entertainment, and travel expenses (most of which is for vacations), as compared to $400 in 1986. Debra's financial affidavit listed total 1994 monthly living expenses for herself and the children at $7,454. She testified she had been unable to maintain the children's current standard of living on her own income and O.R.'s child support payments. Since 1990, she had borrowed funds from her current husband in excess of $55,000 for living expenses, income taxes, and attorney fees. These loans were not reduced to writing, and he was not charging interest. She had repaid approximately $30,000 of this amount from a distribution she received in a settlement of a wrongful death suit filed as a result of her oldest daughter's death. Debra had also incurred debts to three banks to pay living expenses. In 1992, she received $32,000 from her interest in the sale of the parties' marital home. She used this money for vacation, Christmas, purchase of furniture, and living expenses. Debra maintained she had no cash assets other than an individual retirement account.

Evidence was adduced as to Debra's attorney fees. Both her attorneys testified to the number of hours expended and hourly rates charged. No documentary evidence was presented.

During his testimony in April 1994, O.R. identified a pay stub reflecting his gross salary that month in the amount of $4,582. With deductions for Federal and State withholding, FICA (Federal Insurance Contributions Act), and a discretionary $200 deduction to cover uninsured medical expenses, his net monthly pay was $3,221.65. He testified this would be his monthly salary for the remainder of theyear. O.R. testified that prior to the divorce he felt the children's needs were being met, but now they ...

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