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02/28/97 MARRIAGE SUE ELLEN CARPENTER

February 28, 1997

IN RE MARRIAGE OF SUE ELLEN CARPENTER, PETITIONER-APPELLANT, AND THOMAS CARPENTER, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of St. Clair County. No. 92-D-236. Honorable Robert L. Craig, Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published on Denial of Rehearing February 28, 1997.

The Honorable Justice Rarick delivered the opinion of the court: Kuehn, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Rarick

ORDER

This cause has been considered on defendant-appellee's petition for rehearing; and on defendant-appellee's motion to publish; and the court being advised in the premises:

IT IS THEREFORE ORDERED that the petition for rehearing shall be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that the motion to publish shall be, and the same hereby is, GRANTED.

The Honorable Justice RARICK delivered the opinion of the court:

The 27-year marriage of Thomas and Sue Ellen Carpenter was dissolved on April 13, 1993. Child support payments were set at $760 per month, plus 15% of any amount Thomas earned between $80,000 and $100,000. Maintenance was set at $1,415 per month, but classification as either permanent or rehabilitative was reserved. Support payments were based upon Thomas's average salary for the five previous years, which fluctuated from $48,318 in 1988 to $105,294 in 1992. Maintenance payments were based upon an average annual income of $71,624. The agreement specified that maintenance would be reviewable in May 1995 upon the request of either party.

On February 25, 1995, Thomas filed a petition seeking a reduction in child support and maintenance, alleging a substantial change in circumstances resulting from a decrease in his income. Thomas also requested that the trial court classify maintenance and either reduce, modify, or terminate future maintenance. Sue Ellen filed a counterpetition alleging that Thomas's income was substantially higher than he alleged in his financial statement, and she requested the court to increase child support and maintenance. Sue Ellen also requested that maintenance be classified as permanent and that Thomas be ordered to pay her attorney fees.

At the hearing on the petitions, Thomas testified that he earned $108,282 in 1994 and $132,670 in 1993, but that his projected 1995 income would be $40,000 to $50,000. He testified that the branch office of the mortgage company where he is employed is staffed only by himself and his future wife, and that they received the greater part of their compensation through commissions. Thomas further testified that during the parties' marriage she was a homemaker who primarily raised three sons.

Sue Ellen testified that since the divorce she has worked part-time at the YMCA. Since the parties' divorce she has received continuous treatment for stress and depression. Her emotional problems interfered with her current employment and cause her concern regarding any change in employment. Sue Ellen testified that she is capable only of part-time work in a supportive work environment. Her psychiatrist and her therapist both testified that her depression resulted from the breakdown of the marriage, and that it interfered with her social and occupational functioning. Sue Ellen further testified that she would be unable to meet her living expenses without continued maintenance, and that she has occasionally been forced to dip into her savings account in order to meet monthly expenses.

On July 11, 1995, the trial court entered an award classifying maintenance as rehabilitative and reviewable in May 1998. The order reduced child support to $550 per month and reduced maintenance to $800 per month so long as Thomas's monthly income does not exceed $4,000. If it does, Thomas must pay 20% of gross income between $4,000 and $7,000, with the maximum amount of maintenance set at $1,400 per month.

On appeal, Sue Ellen argues first that the trial court's classification of the maintenance award as rehabilitative is contrary to the manifest weight of the evidence. She maintains that ...


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