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11/13/97 MARRIAGE VIRGINIA R. SCHRIMPF

November 13, 1997

IN RE MARRIAGE OF VIRGINIA R. SCHRIMPF, PETITIONER-APPELLEE, AND DONALD F. SCHRIMPF, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Madison County. No. 79-D-1006. Honorable Lewis E. Mallott, Judge, presiding.

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

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Respondent, Donald F. Schrimpf, appeals from an order of the circuit court of Madison County denying his petition for the reduction or termination of maintenance. In this cause, the issues we are asked to address are (1) whether the circuit court's denial of a reduction or termination of maintenance was an abuse of discretion and/or against the manifest weight of the evidence and (2) whether respondent is entitled to a credit toward his maintenance obligation for social security benefits received by petitioner, Virginia R. Schrimpf, by virtue of contributions made by respondent. We affirm.

FACTS

The parties originally married on September 27, 1950, and divorced for the first time on June 2, 1967. The parties remarried on October 17, 1970. Two children were born during the parties' first marriage but were emancipated by the time the second dissolution was entered on November 28, 1979. That judgment required, inter alia, that respondent pay petitioner $750 "per month as and for permanent alimony and maintenance until the respondent-counterpetitioner's death, the petitioner-counterrespondent's death, or the petitioner-counterrespondent's remarriage, whichever occurs first, commencing immediately upon entry of this Judgment." The judgment further provided, in accordance with section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 502(f) (now 750 ILCS 5/502(f) (West 1996))):

"The terms set forth in this judgment shall not, except as to those terms relative to alimony and maintenance for the petitioner-counterrespondent, be modifiable; and *** as to such provisions relating to such alimony and maintenance, the same shall be modifiable only by way of decrease in the amount of such alimony and maintenance by reason of the economic and financial needs of respondent-counter-petitioner, it being expressly hereby provided that the amount of alimony and maintenance to be hereby awarded to petitioner-counterrespondent shall not for any cause whatever be increased above the amount provided herein."

On November 18, 1994, respondent filed a petition seeking to modify the maintenance provisions of the November 28, 1979, dissolution. Respondent alleged that a substantial and material change in circumstances occurred since the 1979 dissolution in that respondent retired after having reached the age of 66 and married his current wife, Charlene, who has significant disabilities, causing respondent to incur significant medical bills. Respondent further alleged a modification in that petitioner is able to support herself without maintenance from respondent because she owns her own home, has a vehicle, and receives social security benefits which she did not receive when the permanent maintenance order was entered in 1979. On May 20, 1996, a hearing was held on respondent's petition to modify.

Respondent testified that he was 68 years of age and that he had twice been married to petitioner. The first marriage lasted 17 years; the second lasted nine years. Respondent married his present wife on July 17, 1982. On September 1, 1995, respondent retired from Piasa Motor Fuels, where he had been employed for 48 years. Respondent's Federal income tax returns showed that in 1993, his gross income was $67,912, in 1994, it was $68,954, and in 1995, the year respondent retired, it was $49,037. When the parties divorced in 1979, respondent's gross income was $42,000. In 1980, respondent's gross income increased to $56,000.

Respondent's current income consists of social security, a pension, and installment payments on a promissory note. In 1996, respondent's gross pension was $1,173.19 per month. Respondent received $1,306 in social security payments per month and $585.59 per month from the installment payments due on a promissory note from the 1987 sale of a service station. The service station was awarded to respondent as part of the 1979 property distribution. Respondent testified he was scheduled to receive the final installment in October 1999. Respondent further testified that his residential mortgage would be paid in full in 1998, resulting in a savings of almost $800 per month.

According to respondent, petitioner receives social security based upon his prior earnings. His present wife, age 56, is unemployed and has no income of her own. Charlene suffers from insulin-dependent diabetes, degenerative arthritis, and leg problems caused by an automobile accident. She underwent orthopedic surgery and fusion. Respondent testified that not all of Charlene's medical expenses are reimbursable and that in 1994 or 1995 he used his $6,500 tax refund to pay for Charlene's dental needs. Respondent submitted an affidavit itemizing his monthly expenses, which indicated that over the past six years his monthly expenses exceeded his gross monthly income by $1,674.76. Respondent estimated his expenses at $4,504.90 per month and his gross monthly income at $2,830.14. Respondent testified that he makes up the difference by drawing on reserves he has in the bank. These reserves came from the sale of a motor home. The motor home was purchased in 1994 for $84,000. In order to purchase the motor home, respondent traded in a motor home he owned and borrowed the additional $60,000 from a life insurance policy he purchased after his divorce from petitioner with proceeds he received from the sale of stock he inherited from his mother. Respondent sold the motor home one-and-one-half years later for $64,000 because Charlene was too sick to travel. With that $64,000, respondent and Charlene purchased a lot at Lake of the Ozarks for $49,500 and put the remaining money in the bank.

As of December 1995, the life insurance policy had a cash surrender value of $125,409.17 and generated gross yearly income of $10,211.25 at an annual premium cost of $2,740. The gross value of the policy is $213,000. Respondent reinvests the interest instead of using the money. The annual premium is also paid out of the interest. Respondent admitted that he has a right to withdraw funds from this policy at any time.

Respondent also owns a Northern Life Insurance single premium policy with a net cash value of $20,851.96. Charlene and respondent's children are the beneficiaries. Respondent held a joint tenant's interest in $650 in Dreyfus Funds. Respondent's retirement and pension plan as of June 30, 1994, was valued at $427,980.10. Respondent admitted that he can change the amount of his monthly pension income at any time. Charlene is the beneficiary of this plan. Respondent explained that if monthly benefits are increased, the survivor benefits are correspondingly decreased.

Petitioner testified to the terms of the 1979 dissolution. Petitioner was awarded the marital residence, valued at approximately $84,000 one year prior to the hearing in question. A 1974 Mercedes-Benz automobile was put in her name prior to the divorce. Petitioner still drives this vehicle. Petitioner also received household furnishings valued at $1,500 and a checking account containing $110. Petitioner testified that she owes her daughter $16,000 ...


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