Dmitroca v. Dmitroca

• Decision Date: 02 February 1967
• Docket Number: Gen. No. 66--78
• Citation: 223 N.E.2d 545,79 Ill.App.2d 220
• Parties: Josephine DMITROCA, Appellee, v. Aleksander DMITROCA, Appellant.
• Court: United States Appellate Court of Illinois

Page 545

223 N.E.2d 545

79 Ill.App.2d 220

Josephine DMITROCA, Appellee, v. Aleksander DMITROCA, Appellant.

Gen. No. 66--78.

Appellate Court of Illinois, Second District.

Feb. 2, 1967.

Cannariato, Nicolosi & Pigatti, Rockford, for appellant.

Miller, Thomas, Hickey & Collins, Rockford, for appellee.

SEIDENFELD, Justice.

Josephine Dmitroca was granted a decree of divorce from Aleksander Dmitroca on September 29, 1965 on the ground of cruelty with the questions of alimony and property rights reserved for further hearing. At the conclusion of that hearing, on February 3, 1966, the court awarded the real property to the wife 'in lieu of alimony.' The husband appeals, claiming that no alimony award was proper under the facts; so that an award in lieu of alimony was not justified under Section 18 of the Divorce Act (Ill.Rev.Stats.1965, Ch. 40, Sec. 19). He also claims that the conveyance of the entire property was not justified under Section 17 of the Divorce Act (Ill.Rev.Stats.1965, Ch. 40, Sec. 18) since the husband, in any view of the evidence, contributed one-half of the down payment for the house, held in joint tenancy.

No question is raised as to the validity of the divorce.

From the record, it is undisputed that the parties were married in 1947; that the house was purchased in 1955 for $14,500 in both names; that the down payment was $6,000 of which $4,000 was paid by the parties in cash, with the balance of $2,000 on a note payable to the sellers, which was paid off within one year from joint funds.

The wife testified that she made all mortgage payments thereafter, together with all taxes and insurance premiums, out of her own earnings from her employment. The parties had no checking account and the wife made all payments in cash. While both worked, she consistently made more money than her husband. One year she made $5,100 and he made $2,600. However, the documentary evidence submitted at a continued hearing in the form of withholding receipts from the year 1951 through 1964 (with no document for the year 1955) shows a variance of between approximately one thousand to two thousand in the annual earnings of the parties. A new gas furnace which cost $660 was paid for in cash out of both of their earnings, as were aluminum awnings for $900, and aluminum doors for $108. They bought furniture and TV sets.

She paid $120 from her own money for eaves and downspouts. Each had a car, hers costing $1,700, was paid out of her own earnings each month; his was paid from earnings of both. The husband gave her $50 a week which was used mostly for himself for gasoline, cigarettes and clothes. Almost every week he took the $50 back in various portions. His pay-checks were always cashed before he came home and she never saw one. He drank every day and played poker over several years. He had been expelled on many occasions from the Polish Falcons Club for being drunk.

She separated the money by keeping his in a box and paid the car and the house payments from her own earnings.

The husband's testimony substantially corroborated the wife's except that he claimed he gave her his checks and they were sometimes $60 to $80 a week. However, the checks were subpoenaed and showed that all of his some 300 checks, with the exception of four or five (which were endorsed to the seller of the house) were cashed at various taverns. None showed an endorsement of the wife. He testified that he had earned $65 or $70 a week for the past two years and presently was earning over $100 a week.

The Court found 'that the equities are in favor of the plaintiff * * * and that she should be awarded the aforesaid real property in lieu of alimony.'

The criteria to be followed by courts in determining alimony where both parties have income have been consistently stated in many decisions: the allowance of alimony is to furnish the wife support or contribute to her partial support. Buehler v. Buehler, 373 Ill. 626, 27 N.E.2d 466 (1940); while there is no hard and fast rule as to the amount to be awarded, the court may consider the age, health, property and income of the parties and also the nature of the husband's misconduct as a circumstance and not as a punishment. Byerly v. Byerly, 363 Ill. 517, 2 N.E.2d 898 (1936). The wife's annual income is to be added to that of the husband, all of the circumstances as to her allowance out of this aggregate are to...