{ "id": 2713411, "name": "Wayne Pierson, Plaintiff and Counterdefendant-Appellant, v. Mary Pierson, Defendant and Counterplaintiff-Appellee", "name_abbreviation": "Pierson v. Pierson", "decision_date": "1975-08-19", "docket_number": "Nos. 74-122, 74-160 cons.", "first_page": "106", "last_page": "110", "citations": [ { "type": "official", "cite": "31 Ill. App. 3d 106" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "25 Ill.2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353121 ], "weight": 2, "pin_cites": [ { "page": "344" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0342-01" ] }, { "cite": "363 Ill. 517", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589233 ], "weight": 2, "pin_cites": [ { "page": "525" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill/363/0517-01" ] } ], "analysis": { "cardinality": 591, "char_count": 10524, "ocr_confidence": 0.697, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3329887186473034 }, "sha256": "f82acc7b4e58f717161d715ab18ff4f697d07eb3e1b617018be3801917676233", "simhash": "1:bbaa22854646cf3e", "word_count": 1795 }, "last_updated": "2023-07-14T21:34:56.206419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wayne Pierson, Plaintiff and Counterdefendant-Appellant, v. Mary Pierson, Defendant and Counterplaintiff-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThe only issues presented in these consolidated cases is whether the trial court\u2019s awards to the wife, in a divorce case, of alimony in gross and child support, and for attorney\u2019s fees and costs on this appeal, constitute error.\nPlaintiff (husband) sued for divorce and defendant (wife) filed her counterclaim charging mental cruelty. Answers were filed and by agreement of the parties the wife proceeded upon , her counterclaim. After hearing, the trial court entered a decree in November, 1973, which, in addition to granting the divorce to the wife and granting her custody of their four minor children, awarded to her (1) \u201cin lieu of alimony,\u201d the husband\u2019s joint interest in the marital home (subject to her assuming the mortgage indebtedness of $28,100 and indemnifying the husband against liability thereon), and all household furniture and furnishings, and (2) as child support $40 per week per child ($160). The husband appealed from the awards of alimony in gross and of child support. Thereupon, the wife filed her petition for temporary alimony, child support and attorney\u2019s fees pending appeal. The court ordered temporary child support of $40 per week per child and further ordered that the plaintiff (counterdefendant) pay $1,000 to the wife\u2019s attorney for the trial of the case and $100 for costs of defending the appeal. The husband again appealed and both appeals were consolidated.\nThe parties were married for 17 years and had four children ranging in age from 5 to 15 years. The wife was 35 years of age.\nInsofar as relevant to the issues of alimony and child support the husband testified, both as an adverse witness and on direct, that for several years he was and still is an equal partner with Donald Bushing in Pierson Heating and Cooling Co. This firm is engaged in the residential and commercial heating and air conditioning business. It has eight or nine trueles and eight or nine employees. The husband\u2019s only testimony concerning his income was that during the last 2 years he and his partner each took a \u201cdraw of $250 a week out of the business,\u201d and that at other times, for \u201cvacation or something,\u201d each would draw \u201ca couple hundred or something\u201d; in addition, the firm pays for gas and oil and other car expenses on his wife\u2019s car and on the firm-owned vehicle he drives for his personal use; the firm also pays $250 per month for his life and medical and hospital insurance premiums; he stated that he had no other income.\nThe husband further testified that the marital home, which is a three bedroom ranch-type residence on two acres of ground, has a fair cash market value of $70,000, and is subject to a mortgage in the sum of $28,100; the required monthly mortgage payments, including interest and reserve for taxes and insurance, are $346. Title to the marital home is in the husband and wife as joint tenants. The husband owns no other real estate.\nThe husband further testified that he normally gave his wife $100 per week for groceries and household expenses. During the 4 months prior to this proceeding he deposited $2800 in her checking account and gave her additional cash from time to time in unstated amounts. He has personal unsecured debts aggregating $6500 owing to two banks and some other minor debts; in addition, he owes $1575 to Thorpe Finance Co. on a pipe organ he had recently bought for his wife which amount is payable in 35 installments of $45 each.\nOn cross-examination the wife\u2019s attorney sought to inquire, for the purpose of determining whether the husband \u201creceived income or obtain [ed] money that * * * does not go through the business,\u201d whether the husband filed Federal income tax returns for the last few years. The husband invoked the fifth amendment to the United States Constitution and declined to answer such inquiry on the ground that to do so might tend to incriminate him.\nThe wife testified that she and her husband discussed his income and that \u201che told me he had to earn at least $1000 a week to live the way we do\u201d; that the gas bill is $34 per month all year; food about $100 per week; telephone about $35 per month; electricity about $100 every 2 months; piano and organ lessons for her and two of the children about $20 per week; clothing for herself and the children about $200 per month; and miscellaneous expenses of $100 to $200 per month. (She admitted on cross-examination that \u201cin the past week\u201d her husband told her that they were living beyond their means.) She is not employed.\nThe husband contends that the trial court erred in awarding to the wife the husband\u2019s joint interest in the marital home \u201cin lieu of alimony,\u201d that the child support award is excessive and that the court abused its discretion in granting attorney\u2019s fees and appeal costs.\nIt is obvious that the trial court\u2019s award to the wife of the husband\u2019s interest in the marital home was intended to be an alimony in gross award under section 18 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 19). That section in pertinent part provides as follows:\n\u201cThe court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable.\u201d\nOur search of the record does not reveal any basis for stripping the husband of his interest in the marital home and'leaving him only with his 50-percent interest in Pierson Heating and Cooling Co. Indeed, the record does not disclose the value, if any, of the partnership interest. The wife speculates that the trial court may have been motivated in making such award by the husband\u2019s possible income tax problems which might encumber title to. the real estate and inhibit his earning power and ability to make monthly payments. The court gave no such indication as to its motive,\nWhile the award of alimony, whether periodic or in gross, is a matter which resides in the discretion. of the court which heard and considered the evidence, we are unable to find sufficient evidence in this record to support, the award here made. In Byerly v. Byerly, 363 Ill. 517, 525, the court pointed out some of the matters which should be considered by the trial court in determining alimony. These included the ages of the parties, their conditions of health, the property and income of the husband, separate property and income if any of the wife, their station in life and whether or not dependent children are involved. The court added:\n\u201cIt was never intended that the allowance of alimony shall be used as a means of visiting punitive damages * \u2022* *, but * * * such allowance is to be made as may furnish the wife support or contribute to her partial support.\u201d 363 Ill. 517, 526.\nThe following statement from 24 Am. Jur. 2d Divorce and Separation \u00a7 635, at 756 (1966), may be appropriate to the case at bar:\n\u201cIn many cases, * * tire parties have lived in such a way as to consume all their income, and have even lived beyond their means before separation, so that it is obvious that each cannot maintain the same high standard of living in two separate households after the separation. Therefore it cannot be necessarily true that the wife should be furnished with funds to maintain the scale of living to which she was accustomed before the separation, and the court will determine the amount of alimony by considering what would be appropriate in the light of the incomes and resources of the parties.\u201d\nWe hold, therefore, that this cause should be reversed and remanded for the taking of additional evidence to enable the court to determine the question of alimony, consistent with legal principles.\nMoreover, we are unable to find support for the award of child-support payments of $40 per week per child. There being four minor children the award would aggregate $160 per week. The husband testified that his only income is his weekly draw of $250 per week plus several other benefits to which he testified. The wife\u2019s statement\nthat her husband told her that \u201che had to earn $1,000 a week to live the way [they] do\u201d is certainly not equivalent to an admission that he earned that sum. On the contrary, the record amply indicates that, as the wife testified her. husband told her, they were living beyond their means. We trust that upon remand evidence will be presented that would indicate the husbands ability to meet the child-support payments thereupon ordered. Perhaps upon remand evidence can be presented which will support the award of child support then to be made. In Everett v. Everett, 25 Ill.2d 342, 344, the court said:\n\u201cIn general, the amount of alimony and child support to be allowed * * * must be determined by accommodating insofar as possible the needs of the parties and children with the available means of the parties, due regard being given to their stations in life.\u201d 25 Ill.2d 342, 344.\nThe question of the allowance of attorney\u2019s fees will likewise have to await the trial court\u2019s determination upon remand of the question of alimony and child support. If, after further hearing, the trial court finds that the wife is without assets and is unable to pay her attorney either out of her own funds or out of any award of alimony, whether periodic or in gross, reasonable allowance of attorney\u2019s fees and costs \u00f3n appeal may then be proper.\nThe judgment of the trial court in both appeals is therefore reversed and the cause is remanded.\nReversed and remanded with directions.\nT. MORAN and DIXON, JJ., concur.\nNo issue is raised here regarding the granting of the divorce or custody, nor as to other provisions in the decree which required the husband to pay the children\u2019s extraordinary medical and dental expenses, to provide for their medical and hospital insurance and to keep in force $15,000 in life insurance for their benefit.\nHe testified that they recently sold five adjacent acres for $13,000. Out of the proceeds he discharged a $4,000 personal loan and the balance, except for $500 or $600 was \u201cpaid off on our outstanding bills.\u201d", "type": "majority", "author": "Mr. PRESIDING JUSTICE RECHENMACHER" } ], "attorneys": [ "Collins, Stepanich & Collins, of Waukegan (Thomas P. Stepanich, of counsel), for appellant.", "Diver, Ridge, Brydges & Bollman, of Waukegan (Robert M. Bollman, of counsel), for appellee." ], "corrections": "", "head_matter": "Wayne Pierson, Plaintiff and Counterdefendant-Appellant, v. Mary Pierson, Defendant and Counterplaintiff-Appellee.\n(Nos. 74-122, 74-160 cons.;\nSecond District (2nd Division)\nAugust 19, 1975.\nCollins, Stepanich & Collins, of Waukegan (Thomas P. Stepanich, of counsel), for appellant.\nDiver, Ridge, Brydges & Bollman, of Waukegan (Robert M. Bollman, of counsel), for appellee." }, "file_name": "0106-01", "first_page_order": 130, "last_page_order": 134 }