Borowitz v. Borowitz

• Decision Date: 18 April 1974
• Docket Number: No. 58655,58655
• Citation: 19 Ill.App.3d 176,311 N.E.2d 292
• Parties: June H. BOROWITZ (n/k/a June R. Howell), Plaintiff-Appellant, v. David BOROWITZ, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 292

311 N.E.2d 292

19 Ill.App.3d 176

June H. BOROWITZ (n/k/a June R. Howell), Plaintiff-Appellant, v. David BOROWITZ, Defendant-Appellee.

No. 58655.

Appellate Court of Illinois, First District, Third Division.

April 18, 1974.

Davis, Jones & Baer, Chicago, for plaintiff-appellant.

Bentley, Campbell, DuCanto & Silvestri, Chicago, for defendant-appellee.

McGLOON, Justice.

This is a post-divorce decree proceeding. The plaintiff-wife appeals from a judgment of the trial court terminating her award of monthly alimony from the defendant-husband that was established under the terms of the 1962 decree of divorce.

In this appeal the plaintiff demands reversal of the order of termination because: (1) the termination impaired the settlement contract entered into by the parties at the time of their divorce and is therefore in violation of Federal and State constitutional provisions forbidding the impairment of contracts; (2) the trial court committed error in receiving evidence as to facts occurring prior to the date of the decree of divorce; and (3) the trial court abused its dircretion in terminating the alimony. The defendant responds that there was no violation of constitutional provisions in the trial court's termination of alimony, that the trial court considered only proper and relevant evidence in reaching its decision, and that there was no abuse of discretion by the trial court as there was a material change in circumstances of the parties justifying the termination.

We reverse and remand.

The relevant facts adduced in the trial court are as follows: Plaintiff and defendant were married on August 7, 1959, at which time she was 49 years of age and he was 53. This was a second marriage for both parties as the plaintiff's prior marriage of 26 years had ended in divorce and the defendant was widowed. Both parties have adult children as a result of their prior unions and no children were born or adopted during their marriage to each other.

After approximately two and a half years of marriage, the parties were divorced. On January 2, 1962, a decree of divorce was entered with also incorporated a marital settlement agreement which provided that the defendant was to pay alimony to the plaintiff in the amount of $1,333.33 a month, and further that he was to create a certain trust to provide reduced monthly payments to the plaintiff in the event the defendant should predecease the plaintiff.

For some ten years the defendant carried out his obligation under the decree, and by January 26, 1972, the plaintiff had received a total of $160,000 in alimony payments. On that date the defendant, then 66 years old and remarried, filed a petition seeking a reduction, and later complete termination, of the required amount of alimony due the plaintiff. The plaintiff answered and counter-petitioned alleging her need for an increased amount of support from the defendant by reason of the substantial increase in the cost of living since the original proceedings in 1962.

There followed extensive hearings on the petitions, during which substantial testimony and documentary evidence were introduced. In support of his petition, and over the objections of the plaintiff, the defendant introduced evidence as to the plaintiff's financial condition that included items of value that she had received from him prior to and during their marriage, in addition to the evidence of alimony paid since the entry of the decree. Over the plaintiff's objections that this evidence was not relevant or material to a post-decree modification proceeding, the defendant showed that he had given her certain valuable gifts including a promissory note in the amount of $30,000 which he fully paid after their marriage, that during their marriage he had given her jewelry and furs in the amount of $30,000, and 100 shares of stock valued at approximately $18,500, all of which she kept upon their divorce. In addition the defendant testified that he spent in excess of $100,000 in renovation of an apartment for their use as their home during the marriage. All of this was in addition to the $160,000 in alimony the defendant had paid since the divorce.

Through the testimony of the plaintiff and the introduction of certain of her tax returns it was disclosed that in 1971 she possessed approximately $100,000 in stocks and bonds, received approximately $4,500 in dividends and $1,100 in interest for the year, had approximately $20,000 in cash deposits in various banks, and equity in two homes she owned in Florida. On the basis of all of this evidence the trial court concluded that the plaintiff's net worth was then $120,000 to $140,000.

The evidence as to the defendant's financial condition was as follows. His chief asset was 80% Ownership of a closely held family enterprise, Bradley Manufacturing Company. The net worth of this company declined from 1962 to 1971, but showed a projected increase for 1972 to an amount of $261,584. The defendant's salary as president of the company was $85,000 per year for the years 1963--69, $75,000 for the year 1970, and $65,000 for the year 1971. The defendant's 1971 income was increased by $35,000 which was income from a partnership that held title to certain real estate. There was further evidence adduced that indicated the defendant was a wealthy man who travelled extensively for business purposes and maintained memberships in exclusive private clubs.

The plaintiff also introduced defendant's income tax returns which showed that in 1961 the defendant's total taxable income was approximately $106,730, and in 1971 the total was $105,410. This, the plaintiff contended, indicated that there had been no change in circumstances which warranted a reduction or termination of alimony.

In support of her counter-petition for an increase in alimony the plaintiff testified that due to the increased cost of living her needs were then $2,340 per month. This was supported by a detailed monthly budget that, she testified, reflected her current needs.

Following the hearings the trial judge entered a lengthy judgment order in which he made extensive findings of fact and concluded that due to the substantial sums paid by defendant to plaintiff, the passage of eleven years since the entry of the original decree, the fact of the defendant's age, consideration of the net worth of the parties and all the other evidence adduced, there had been sufficient change in circumstances to warrant a termination of alimony to the plaintiff. The judgment ordered the defendant to phase out the payments over a six month period of lessened payments and then cease payments altogether. The judgment order also eliminated the requirement that the defendant maintain the trust that was provided for in the original decree.

In this appeal the plaintiff first contends that the order of the trial court eliminating alimony violated Article I, Section 10 of the United States Constitution, and Article I, Section 16 of the Illinois Constitution providing that no law impairing the obligation of contracts shall be passed. The plaintiff argues that the marital settlement agreement providing for the payment of alimony entered into by the parties on December 8, 1961 and later incorporated into a decree of divorce, was a contract. And further, because the trial court was not empowered to terminate alimony until 1969 when Ill.Rev.Stat. ch. 40, par. 19 was amended to provide such relief, the reliance on the 1969 amendment to modify a contract entered into in 1961 impaired the pre-existing contract obligation and therefore violated the above constitutional provisions.

We need only say in regard to this issue that in view of our holding that the complete termination of alimony in the instant case was unjustified on other substantive grounds, there will be no need to pass upon the constitutional issue raised by the plaintiff.

The plaintiff next argues that the trial court violated the principle of Res judicata when it admitted and relied upon evidence of the plaintiff's financial condition prior to and during her marriage to the defendant. The plaintiff contends that in an application for modification or termination of support the only inquiry should be whether sufficient cause has intervened since the entry of the decree to authorize the court to change the allowance. We agree with the plaintiff that this is a correct statement of the law, (Cole v. Cole (1892) 142 Ill. 19, 31 N.E. 109; Marriott v. Marriott (1952) 347 Ill.App. 372, 106 N.E.2d 876) however, we do not agree with the plaintiff's suggestion that the use of this evidence in the instant case requires a reversal.

The evidence objected to by the plaintiff, (financial transactions between the parties prior to and during the marriage) when considered in the context of the entire case was admitted by the trial court in its effort to do justice in the case by attempting to accurately determine the situation of the parties at the time the decree was entered. We must also agree with the defendant that when a court is to determine whether there has been a change in circumstances since the entry of decree it must have reasonable latitude in inquiring into the income, assets and standard of living of the parties at the time of and immediately prior to the entry of the original decree. Since the marriage in the instant case was of such short duration it was not unreasonable for the court to examine the financial condition of the parties for a period of time before the decree.

We are not unmindful of the fact that the trial court not only admitted, but also relied on some of this pre-decree evidence of financial condition in arriving at its decision. However, this evidence, some of which is recited as findings of fact in the judgment order, when read in the context of the entire judgment order, were not the significant findings upon which the court made it...