Asch v. Asch
| Decision Date | 15 September 1981 |
| Docket Number | No. 80-1641,80-1641 |
| Citation | 55 Ill.Dec. 741,426 N.E.2d 1066,100 Ill.App.3d 293 |
| Parties | , 55 Ill.Dec. 741 In re the Marriage of Samuel E. ASCH, Petitioner-Appellee, v. Deirdre R. ASCH, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Jacobs, Camodeca & Timpone, Chicago, for respondent-appellant; William R. Jacobs, II, Jerome Marvin Kaplan, Chicago, of counsel.
Beermann, Swerdlove, Woloshin, Barezky & Berkson, Chicago, for petitioner-appellee; Miles N. Beermann and Howard A. London, Chicago, of counsel.
Samuel E. Asch petitioned for dissolution of his marriage to Deirdre R. Asch. Final judgment for dissolution of marriage was entered on September 5, 1979, and was modified by the partial granting of respondent's post-trial motion on May 7, 1980. Respondent appeals the adequacy of the trial court's award of maintenance and the trial court's action reserving jurisdiction to review the maintenance award after three years.
Samuel and Deirdre Asch were married on December 19, 1945. On November 30, 1977, after 32 years of marriage, Samuel petitioned for dissolution of the marriage, alleging that respondent was guilty of extreme and repeated mental cruelty. When the petition was filed petitioner was 50 years of age and respondent 52 years of age. The parties have four children, all but one of whom were self-supporting at the time of trial. Petitioner was a self-employed insurance agent and respondent was unemployed. Respondent had been employed for brief periods during the marriage, including work at a hotel, as a physician's assistant, as a volunteer for the Lincoln Park Zoo, as a photographer, and in the past few years has led a number of safaris in Africa.
The grounds for dissolution were uncontested. On July 16, 1979, the trial court concluded, inter alia, that petitioner had provided the sole support for the family during the marriage and that both parties were in relatively good health. The court valued the marital property and divided it as follows. Property apportioned to petitioner as part of the settlement consisted of:
South Longwood Street home ($50,000
value; $7000 mortgage) $43,000
Asch & Associates (insurance business) 12,000
Asch & Associates profit sharing plan 1,462
Asch & Associates note to petitioner 15,000
Equitable Life Investment Plan 5,400
One-half cash value of life insurance Undetermined
Business furniture Undetermined
One-half of furniture and furnishings Undetermined
1977 Buick Undetermined
75% of Equitable Life Assurance
pension Undetermined
-----------------------------
Total $76,862 plus
undertermined values. 1
Property apportioned to respondent as part of the settlement consisted of:
400 East Randolph Condominium
($33,000 value; $20,000 mortgage) $13,000
Uptown Federal Savings escrow account 800
20 shares Northern Indiana Public
Service stock 1,000
Respondent's mother's savings account 290
Asch Wildlife Company (photographic
business) Undetermined
One-half cash value of life insurance Undetermined
1976 Ford Undetermined
Beneficial interest in $30,000 life
insurance policy Undetermined
One-half of furniture and furnishings Undetermined
25% of petitioner's Equitable Life
Assurance pension (when received) Undetermined
Cash 34,000
----------------------
Total $49,090 plus
undetermined values
Petitioner's gross income was approximately $43,000 in 1978. He claimed expenses of $3,542 per month and respondent claimed expenses of $2,290 per month. The court awarded respondent $90 per week rehabilitative maintenance for three years. This award was based on the court's determination that respondent was unable to financially maintain herself at that time but would be able to do so upon procurement of appropriate employment.
On October 4, 1979, respondent filed a post-trial motion seeking an increase of the maintenance award to $1,500 per month and requesting the court to vacate that portion of the judgment limiting maintenance to three years. Acting on that motion, the trial court increased the award from $90 to $150 per week. The court also ruled that, in light of In re Marriage of Pieper (1979), 79 Ill.App.3d 835, 34 Ill.Dec. 877, 398 N.E.2d 868 (), the maintenance order would be modified to eliminate the automatic termination after 3 years. Instead, the maintenance would continue for 3 years, at which time the court would determine whether respondent had made appropriate and reasonable efforts to procure suitable employment and maintain herself financially.
Respondent's first contention on appeal is that the trial court abused its discretion in awarding her only $150 per week. In support of her position respondent cites the 34 year duration of the marriage, the fact that petitioner had been the sole support of the family during the marriage, that respondent did not have the ability to maintain herself financially, that she had received a disproportionately low share of the marital property, that her needs exceeded $150 per week and that petitioner had sufficient income to meet her needs.
The awarding of maintenance is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (Schuppe v. Schuppe (1979), 69 Ill.App.3d 200, 203, 25 Ill.Dec. 690, 387 N.E.2d 346; see Hoffman v. Hoffman (1968), 40 Ill.2d 344, 349, 239 N.E.2d 792; Stotlar v. Stotlar (1977), 50 Ill.App.3d 790, 800, 8 Ill.Dec. 711, 365 N.E.2d 1097.) Absent an abuse of discretion, a reviewing court should not substitute its discretion for that of the trial court. (In re Marriage of Lee (1979), 78 Ill.App.3d 1123, 1127, 34 Ill.Dec. 451, 398 N.E.2d 126.) Such an abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. See Lee, at 1127, 34 Ill.Dec. 451, 365 N.E.2d 1097.
Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act allows for the awarding of maintenance only where the spouse seeking maintenance "(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment * * *, or (3) is otherwise without sufficient income." (Ill.Rev.Stat.1979, ch. 40, par. 504(a).) The trial court found that at the time of the dissolution respondent was not fully able to provide for her reasonable needs. Upon deciding that maintenance was warranted, the court looked to the six factors set out in section 504(b) of the Act to determine the proper amount of maintenance. (See In re Marriage of Goldstein (1981), --- Ill.App.3d --- at ---, 53 Ill.Dec. 397 at 401, 423 N.E.2d 1201 at 1205.) The factors include the financial needs and resources of the party seeking maintenance, the time needed to acquire education or training that will enable that party to find appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age, physical and emotional condition of the parties and the ability of the spouse from whom maintenance is sought to meet his own needs. (See Ill.Rev.Stat.1979, ch. 40, par. 504(b).) With the exception of marital misconduct (see Ill.Rev.Stat.1979, ch. 40, par. 504(b)), the court is also permitted to consider factors not listed in the Act. See In re Marriage of Simmons (1980), 87 Ill.App.3d 651, 658, 42 Ill.Dec. 706, 409 N.E.2d 321.
The trial court explained the basis for its decisions when it announced the property settlement and maintenance award. In addition to the $150 per week in maintenance, respondent can generate income from the property apportioned her in the settlement. Included in this property is $1,000 of stock and a condominium unit with $13,000 equity. If these assets are liquidated and added to the $34,000 in cash allotted to respondent, she will have $48,000 available to generate income. The trial court found this to be adequate to maintain her until she could obtain suitable...
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