{
  "id": 3371716,
  "name": "ILLA E. HAVING, Plaintiff-Appellant, v. MAURICE H. HAVING, Defendant-Appellee",
  "name_abbreviation": "Having v. Having",
  "decision_date": "1977-05-23",
  "docket_number": "No. 13415",
  "first_page": "795",
  "last_page": "797",
  "citations": [
    {
      "type": "official",
      "cite": "48 Ill. App. 3d 795"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "223 N.E.2d 545",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "79 Ill. App. 2d 220",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        2565310
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/79/0220-01"
      ]
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  "last_updated": "2023-07-14T15:43:36.955471+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ILLA E. HAVING, Plaintiff-Appellant, v. MAURICE H. HAVING, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GREEN\ndelivered the opinion of the court:\nPlaintiff Ilia Having sued defendant Maurice H. Having for divorce in the Circuit Court of Macon County on the grounds of habitual drunkenness. Defendant counterclaimed for divorce alleging that plaintiff was guilty of adultery. The trial court, after a hearing on the merits, found that defendant had \u201cpleaded and proved recrimination\u201d and awarded him a divorce. Plaintiff was awarded the custody of the parties\u2019 16 year old son and defendant was ordered to pay support of $50 per week and an additional sum of $50 per month for the care of the son\u2019s horse. A disposition of the parties\u2019 personal property was made and defendant was ordered to pay the balance of a loan standing as a lien on the family automobile the possession of which was awarded to plaintiff. She was ordered to convey to defendant \u201cin hen of alimony\u201d her one-half joint tenancy interest in the marital home. Plaintiff appeals from the portion of the decree ordering her to make this conveyance.\nPlaintiff maintains that the trial court erred because: (1) no showing was made that defendant was entitled to any alimony, (2) no showing was made to justify an award of alimony in gross and (3) that by finding that recrimination had been proved the court found defendant guilty of fault which barred him from alimony. We need consider only plaintiff\u2019s first contention. Plaintiff\u2019s income was *88 per week while defendant\u2019s was *252.80 per week. After deducting defendant\u2019s obligations to pay support for the parties\u2019 son and care for the horse, defendant\u2019s income was still twice that of the plaintiff. No showing was made that plaintiff had been supporting defendant during the marriage. Neither the age, health or property of the parties justified the granting of either gross or periodic alimony. (Dmitroca v. Dmitroca (1967), 79 Ill. App. 2d 220, 223 N.E.2d 545.) The award was error.\nPlaintiff\u2019s complaint requested that the home residence property be sold and that the net proceeds be divided equally between the parties. On appeal, she requests that the decree be amended to so provide. The record indicates that the property is owned by the parties as joint tenants. We have determined that defendant is not entitled to the property as alimony in gross. No special equities of either party were alleged or proved. Plaintiff is entitled to the sale being ordered.\nThe portion of the decree from which appeal is taken is reversed, and the case remanded with directions that the decree be amended to vacate the award of alimony in gross to defendant and to provide that the home residence real estate of the parties be sold and the net proceeds divided equally between the parties.\nReversed and remanded.\nTRAPP, J., concurs.",
        "type": "majority",
        "author": "Mr. JUSTICE GREEN"
      },
      {
        "text": "Mr. PRESIDING JUSTICE CRAVEN,\ndissenting:\nI am in disagreement with the oosition reached by the majority. Section 18 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 19), under which the trial court made this award, does not require proof of special equities. Even if such equities need to be proved, there is ample evidence in the record of the defendant\u2019s need and the plaintiffs ability to pay which supports the alimony in gross. By additional provisions of the decree, defendant was directed to pay approximately one fourth of his monthly, before-tax income toward the support of his son and his son\u2019s horse. In addition, the defendant was ordered to keep up payments on his son\u2019s health insurance and to pay off the balance due on the automobile granted to the plaintiff. In addition, defendant will be forced to procure furniture for his own use as plaintiff had removed the marital furniture from the home. If the home were to be sold, defendant would be forced to find another place to live. That would certainly eliminate his already depleted resources.\nOnce the defendant\u2019s need for alimony is established, it is incumbent on the court to examine the assets of the parties to determine from what source that alimony is best obtained. Plaintiff\u2019s income was such that only her equity in the marital home could be used to offset defendant\u2019s need for alimony. To reverse the decree here is contrary to the findings made explicitly and implicitly by the trial court. I find no error in the exercise of the discretion of the trial court and therefore dissent.",
        "type": "dissent",
        "author": "Mr. PRESIDING JUSTICE CRAVEN,"
      }
    ],
    "attorneys": [
      "Burger, Fombelle, Wheeler & Dvorak, P. C., of Decatur (David A. Dvorak, of counsel), for appellant.",
      "Hull, Campbell & Robinson, of Decatur (Dennis J. O\u2019Hara, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "ILLA E. HAVING, Plaintiff-Appellant, v. MAURICE H. HAVING, Defendant-Appellee.\nFourth District\nNo. 13415\nOpinion filed May 23, 1977.\nCRAVEN, P. J., dissenting.\nBurger, Fombelle, Wheeler & Dvorak, P. C., of Decatur (David A. Dvorak, of counsel), for appellant.\nHull, Campbell & Robinson, of Decatur (Dennis J. O\u2019Hara, of counsel), for appellee."
  },
  "file_name": "0795-01",
  "first_page_order": 829,
  "last_page_order": 831
}