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Hupe v. Hupe

May 26, 1999

KAREN L. HUPE, NOW KNOWN AS KAREN ZANIER, PLAINTIFF-APPELLANT,
v.
W. DEAN HUPE, DEFENDANT-APPELLEE .



Appeal from the Circuit Court of the 21st Judicial Circuit Kankakee County, Illinois No. 88--D--244 The Honorable Clark Erickson Judge, Presiding

The opinion of the court was delivered by: Justice Koehler

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The petitioner, Karen Hupe, appeals post-decree orders of the circuit court of Kankakee County in a dissolution of marriage action. The question on appeal is: Did the circuit court abuse its discretion when it: (1) extended reviewable maintenance payments but at a reduced level; (2) ordered the respondent to pay only the book costs, tuition and fees as educational expenses of the parties' daughter; and (3) ordered that each party is to pay their own attorney fees. Because we conclude that the circuit court did not abuse its discretion, we affirm.

FACTS

The petitioner and the respondent, each age 53 at the time of the divorce, were married in 1959. They had five children together between 1960 and 1973. They separated in 1978 and the circuit court entered a judgment for dissolution of marriage in 1992. The respondent is part owner of the family sod farm business and, at the time of the judgment, had an annual income of $75,000. The petitioner did not work outside the home after 1961 and was not employed outside of the home at the time of the dissolution. Additionally, she claims to have incurred $91,000 in debt during the separation.

The couple's marital assets were divided as follows: The respondent received ownership of the couple's business interests which were valued at $455,320. The judgment gave the petitioner the marital home, including all of the furniture and appliances in the home, except for a piano. It also gave her ownership of a trust valued at $70,000. An expected $8,000 in payments on property the couple owned in Spokane, Washington, were to be made to the petitioner. All rents from property were to be evenly divided. The proceeds from redemption of the couple's stock in a finance company was likewise to be divided equally. The petitioner's property settlement at the time of the dissolution was valued at $178,000. In order to equalize the property interests, the circuit court entered a judgment order for $277,320 against the respondent in favor of the petitioner toward which the respondent was ordered to make an initial payment of $25,000. The petitioner used those funds to purchase another automobile and repay some loans. The petitioner's share of the proceeds from trusts that the couple owned and which were ordered sold were to be applied against the judgment amount. The parties stipulated that attorney and other fees incurred in the sale of the properties would be paid from a separate trust. Any balance left was to be applied against the judgment entered against the respondent. Under the judgment, the respondent had sole responsibility of repaying a $26,000 debt owed to his father, and each party was responsible for his or her own post-separation personal debt. Pursuant to the judgment for dissolution, the respondent was ordered to pay $2,500 per month to the petitioner as maintenance. The circuit court ordered that the payments be made in two lump sums of $15,000 each for four years. Maintenance was reviewable at the end of the four years or prior to that in the event of a change of circumstance for either party.

The petitioner currently lives in the marital home. She reported income since the dissolution in the following amounts: $30,566.00 in 1992, the year the marriage was dissolved; $33,000 in 1993; $82,859.00 in 1994, including $42,001.00 in capital gains on property she had sold; and $40,547.00 in 1995. In December 1995, she gained full-time employment at Harbor House as coordinator for abuser educational domestic violence services where she earns approximately $18,720 gross. She testified that since 1992 she has repaid debt of $120,000, $91,000 of which was owing at the time of the dissolution. However, a $6,000 home equity loan, $12,000 in accountant fees, and $14,000 in attorney fees from post-dissolution proceedings remained. The petitioner also testified that she has some cardiovascular problems and a congenital sciatic nerve problem that worsens with age; however, she does not see a doctor for either of these conditions.

The petitioner pays $1,000 monthly rent for a condominium in Flossmoor. His average gross income has ranged between $90,000 and $95,000. He testified that, in addition to his rent, he spent approximately $24,000 on living expenses. A $78,00 balance on the judgment he is to pay to the petitioner remained.

The parties' youngest child, Amber, was a student at Kankakee Community College when the dissolution was entered. The circuit court ordered the respondent to pay Amber's food and shelter while she attended college, and ordered the respondent to pay tuition, book costs and fees. Neither party was required to supply a vehicle for Amber while she attended college. The circuit court reserved the issue of post-Kankakee Community College education expenses. The parties' daughter, Amber, completed the final two years of her college education at Elmhurst College where tuition and fees totaled $23,090. The respondent contributed $10,000 during those two years, giving Amber $2,500 each semester. Initially, Amber lived with her mother but later moved into her own apartment. The petitioner paid Amber's room and board which totaled $14,180 during her Elmhurst College years. Amber received a $5,000 gift from her paternal grandparents which she used to purchase an automobile to commute to and from school. Amber turned down her father's offer of employment at the family business along with the use of an automobile because, as she testified, of the divorce proceedings. Amber instead worked part-time at several other jobs. Amber testified that she contributed $17,000 to her Elmhurst College tuition, book costs and fees with student loans and the income from her part-time employment. She also received a $24,600 loan from her maternal grandmother which she used to pay for her college expenses.

In April 1996, the respondent filed a petition to modify award of maintenance seeking termination of maintenance. The petitioner filed a response and, shortly after, also filed her own petition to modify seeking extension of maintenance beyond the original four years as well as a petition for payment of educational fees. The petitioner did not request attorney fees in either petition and did not file a petition for attorney fees. At the time of the hearings on the petitions, all of the trusts had not yet been sold, but the petitioner had received $3,750 from the sale of the Spokane property. The circuit court entered the following orders: (1) The respondent is to continue paying the petitioner maintenance for three more years but reduced the payments from $2,500 per month to $1,200 per month, reviewable in three years or in the event of a change in circumstance; (2) the respondent is credited the $10,000 in education expenses he has already paid to Amber but must pay the balance of $13,090 for tuition, books and fees at Elmhurst College; on the petitioner's motion to reconsider, the court disallowed $3,460 which it had initially included as one-third of Amber's transportation cost and which was based on the purchase price of Amber's automobile; and (3) each party is to pay his or her own attorney fees. In an order not under appeal, the circuit court ordered the respondent to pay $25,492.12 in interest on the portion of the judgment that had not been satisfied as of two years after the dissolution. The petitioner now appeals these three orders of the circuit court.ANALYSIS

The award of maintenance, child support, and attorney fees are within the sound discretion of the circuit court and will not be reversed on appeal unless the awards constitute an abuse of discretion. In re Marriage of Severino, 298 Ill. App. 3d 224, 228, 698 N.E.2d 193, 196 citing In re Marriage of Morse, 240 Ill. App. 3d 296, 307, 607 N.E.2d 632 (1993) (award of maintenance); In re Marriage of Dieter, 271 Ill. App. 3d 181, 190-191, 648 N.E.2d 304, 311-312 (1995) (award of educational expenses; award of attorney fees).

1. Maintenance

The petitioner argues that the circuit court abused its discretion when it entered an order for reviewable maintenance, reducing her monthly expenses and the amount of the monthly payments. She maintains that she "operates at a deficit," repaying loans she has incurred as a result of the separation and dissolution. She contends that she cannot live as she did during the marriage while the respondent lives a "lavish lifestyle." His living, travel and entertainment expenses are paid for by his family business, and he has the ability to make maintenance payments that would allow the petitioner to maintain the lifestyle she had during the marriage.

The respondent denies living a lavish lifestyle and, in turn, argues that the petitioner has been living improvidently beyond her means. He contends that he is not required to continue paying a higher maintenance amount simply because he can afford to do so. Rather, maintenance only is warranted to meet a party's reasonable needs. Moreover, the parties' debts at the time of the original judgment were ...


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