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05/19/97 MARRIAGE MILDRED KRANE PETITIONER-APPELLEE

May 19, 1997

IN RE MARRIAGE OF MILDRED KRANE, PETITIONER-APPELLEE, AND GERALD KRANE, RESPONDENT-APPELLANT.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL J. SULLIVAN, JUDGE PRESIDING.

Released for Publication June 25, 1997.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Respondent Gerald Krane appeals from orders of the circuit court of Cook County dissolving his marriage to petitioner Mildred Krane and ordering him to pay maintenance and a portion of Mildred's attorney fees.

The record on appeal indicates that Mildred filed a petition for dissolution of marriage on June 6, 1991. On September 24, 1991, Mildred filed a petition for temporary maintenance, alleging that Gerald vacated the marital premises during May 1991 and had not paid her for household expenses, including the mortgage and assessments. On October 18, 1991, the trial court entered an agreed order regarding payments for the mortgage and expenses through December 1, 1991, and continuing the petition for temporary maintenance.

On December 23, 1991, Mildred filed a petition for a rule to show cause, alleging that Gerald had willfully failed to comply with the prior agreed order. On January 23, 1992, the trial court: found Gerald in default on both petitions for failure to appear; ordered Gerald to pay Mildred temporary maintenance of $1,750 per month; stated that an order of withholding would issue against all of Gerald's payors; and entered a rule to show cause returnable on Mildred's motion.

On February 3, 1992, Mildred filed a petition for a temporary restraining order and other relief (TRO Petition). Mildred alleged that she attempted to serve the trial court's order for withholding on the Public School Teachers' Pension and Retirement Fund of Chicago (Fund), because Gerald is a retired teacher whose primary source of income was retirement benefits. The Fund declined to comply with the order for withholding. The Fund payments were being directly deposited into Gerald's account at the Affiliated Bank (Bank) in Chicago. Mildred feared that Gerald would remove these funds to defeat her right to maintenance, based on Gerald's prior non-compliance and alleged failure to inform Mildred of his location or to support her during the marriage. The trial court restrained Gerald from changing the Bank as the depository for the Fund payments and from transferring, withdrawing, or disbursing any Fund payments.

On February 11, 1992, Mildred moved to add the Fund and the Bank as third-party defendants. Mildred also moved for turnover of funds from Gerald's account at the Bank in the amount of $1,750 per month. The trial court granted these motions, except for one payment. The trial court also ordered the Fund to notify Mildred's counsel of any request by Gerald to alter the depository of his benefits or for direct payment.

On March 3, 1992, Mildred filed another TRO petition, alleging that she received a February 27, 1992 letter from the Fund stating that Gerald had requested that his monthly payment be directed to a new address. The trial court again enjoined Gerald from changing the Bank as the depository for the Fund payments. On March 12, 1992, the trial court entered a similar preliminary injunction against Gerald.

On March 25, 1992, Mildred again moved for default, based on Gerald's failure to appear since October 18, 1991, and his failure to comply with the trial court's order that he provide an address at which service of notice could be had upon him. Mildred also filed another TRO Petition, alleging that she was notified by the Bank that on or about April 6, 1992, a person identifying himself as Gerald telephoned the Bank, seeking to close his account so that his Fund payments could be deposited at a new location. On April 9, 1992, the trial court entered an order of default and an order restraining Gerald from closing the Bank account or seeking to transfer monies from the account. The trial court also ordered the Bank account frozen, except for sums to be paid to Mildred under the prior court order.

Gerald entered an appearance by counsel on May 4, 1992. On June 18, 1992, the trial court entered an agreed order reducing maintenance to $1,189.63. Gerald would receive $591.81 from the Bank, approximately one-third of each Fund payment.

The trial court began hearing Mildred's petition on April 6, 1994. Mildred was born on July 5, 1926. She was a high school graduate with one year of junior college. Mildred first married on September 15, 1954, and had three children from that marriage. Mildred's first husband passed away in March 1970. Mildred met Gerald in 1971.

Gerald was born on April 25, 1925. Gerald had Master's degrees in music and education. He began teaching part-time in the Chicago Public Schools in 1949 or 1950, which led to the full-time position he held when he met Mildred. Gerald began contributing to his pension in 1952, and retired in 1982 or 1983. Gerald was also employed by RMC Realty from 1971 or 1972 through 1987. Gerald then sold real estate franchises for the ERA Corporation through 1990. Gerald testified that his real estate license had lapsed, but his license to sell insurance was current. Gerald also made $200 to $250 weekly for approximately half of 1991, selling organs for Fletcher Music in Florida.

On March 2, 1972, Mildred and Gerald entered into an ante-nuptial agreement (Agreement) drafted by Mildred's attorney. The Agreement provided in part as follows:

"2. That if [Mildred] shall survive [Gerald], or in the event of a divorce, the husband or wife under no circumstance shall acquire any legal rights to any of the property or the income thereof as a result of the marriage; separation or otherwise, [Mildred] shall not, as surviving wife, make any claim to any part of the property or estate of which [Gerald] may own or die seized or possessed; and [Mildred], in consideration of said marriage, hereby expressly waives and relinquishes all right in and to the real and personal property of which [Gerald] may own or die seized, as well as all right in and to the personal estate of [Gerald], including Surviving Spouse's Award, whether as surviving wife, heir at law, or otherwise."

Exhibits attached to the Agreement listed the assets of Mildred and Gerald. Mildred's assets and liabilities included a checking account, various savings certificates and securities, insurance, a residence, an automobile, the assets of a trust established by her first husband, and the net assets of the first husband's estate. Mildred had net assets of approximately $417,500. Gerald's assets included pension contributions (then valued at $12,000), a checking account, and an automobile, resulting in total assets of $12,800.

Mildred and Gerald married on March 5, 1972. They lived in Mildred's home in Lincolnwood from 1972 to 1976. Gerald made minimal contributions toward the expenses of the home. Mildred sold her home in 1976.

Mildred then bought a residence on Lake Shore Drive. Gerald did not move into this residence for approximately three and one-half years. Mildred again testified that Gerald contributed very little toward the expenses of the home. Gerald never paid the mortgage, taxes or assessments on the property.

Gerald moved out of the Lake Shore Drive residence in 1982. Mildred testified that Gerald moved into an apartment in Des Plaines with another woman and an apartment in Skokie with yet another woman. Mildred sold the Lake Shore Drive residence in 1983 because she could not afford to keep it. ...


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