Everett v. Everett

• Decision Date: 28 September 1962
• Docket Number: No. 36961,36961
• Citation: 25 Ill.2d 342,185 N.E.2d 201
• Parties: Anne S. EVERETT, Appellee, v. James E. EVERETT, Appellant.
• Court: Illinois Supreme Court

Page 201

185 N.E.2d 201

25 Ill.2d 342

Anne S. EVERETT, Appellee, v. James E. EVERETT, Appellant.

No. 36961.

Supreme Court of Illinois.

Sept. 28, 1962.

Gorman & Drugas, Chicago (Robert J. Gorman, Chicago, of counsel), for appellant.

Irwin, Deneke & Penner, Chicago (Harold E. Penner, Chicago, of counsel), for appellee.

HOUSE, Justice.

Anne S. Everett filed a complaint in the superior court of Cook County seeking a divorce from her husband, James E. Everett, on the ground of extreme and repeated cruelty. Defendant's answer denied the cruelty and he counterclaimed for divorce on the ground of desertion. Plaintiff denied this charge of desertion and filed a supplemental complaint alleging that he had deserted her. The decree entered by the trial court granted plaintiff's prayer for divorce on the ground of desertion; awarded the care, custody and control of the parties' three minor children to her, gave her the household furniture and furnishings, and ordered defendant to pay $30 per week to plaintiff for alimony and $25 per week for the support of each of the minor children, convey an undivided one-half interest in the residence to plaintiff, transfer one half of the 500 shares of stock he owns in his employer's company to plaintiff, and pay $1,750 to plaintiff's attorneys as their fee in this case. Defendant appeals directly to this court because a freehold is involved.

The defendant contends that the trial court erred in finding that he had deserted plaintiff and should have found that she had deserted him. It is undisputed that the parties had lived separate and apart for more than one year when this action was commenced. While the testimony as to the cause of the separation was conflicting, there is evidence in the record, which, if believed, warranted the trial court in finding that the parties lived separate and apart because of defendant's extreme and repeated cruelty. Since the chancellor observed the witnesses and heard them testify, his finding in this respect will not now be disturbed. Tuyls v. Tuyls, 21 Ill.2d 192, 171 N.E.2d 779; Curran v. Curran, 19 Ill.2d 164, 166 N.E.2d 13.

Defendant also argues that the allowance of $30 a week for alimony and $25 a week for support of each of the children is excessive. The plaintiff testified to the cost of groceries, fuel, lights, water, garbage disposal, insurance, telephone, clothing, laundering, automobile expenses, medical and drug expenses and school incidentals. She stated that the cost of living expenses for her and the children is about $800 per month. While the record is not clear, this figure of $800 per month or about $185 per week apparently includes the amount that will be needed for rent. In any event, these costs of living figures were not contradicted or questioned by defendant. He points out, however, that after paying the allowance of $103 a week he must live on $73.60 a week, and argues that this demonstrates the excessiveness of the allowance.

In general, the amount of alimony and child support to be allowed in a case such as this 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. The available income of the parties is as follows: the $178.60 a week defendant receives after deductions for taxes and medical insurance, $8 to $54 a week which plaintiff earns for tutoring, and $12 a week social security payment she receives. While the allowance decreed by the trial court takes a substantial portion of defendant's income, it fails by some $15 to $62 per week, depending on plaintiff's earnings from tutoring, of meeting the amount required to support her and the children. There is nothing in the record to indicate what amount would be necessary in order to maintain defendant according to his present station in life. From a careful review of the evidence, we are of the opinion that the trial court was within its discretion in fixing the amount of alimony and child support that it did.

Defendant contends that the court erred in ordering him to convey an undivided one-half interest in his home to plaintiff and to transfer one half of the stock he owns in his employer's company to her. It is undisputed that the parties purchased a home in Glenview in 1950 and plaintiff contributed $3500 of her own funds toward the down payment. Title to this property was held by the parties as joint tenants. In March, 1952, defendant purchased a lot in Northfield in his own name for the construction of a new home. On February 26, 1953, plaintiff advanced $4850 to defendant to apply on construction costs of the new residence, which funds he was to repay. On July 27, 1954, the Glenview home was sold and, after crediting the purchasers with the mortgage payments assumed and the payment of closing costs, plaintiff and defendant received $3135.95, which was also applied to construction costs on the new home. They executed a mortgage on the Northfield property to secure a loan for about.$23,500. It was stipulated that the home cost $55,759.60.

Plaintiff testified that during 1950, 1951 and 1952 she spent over $1500 for family expenses and mortgage payments on the Glenview home. Defendant testified that during this period he was giving his wife $400 per month to be used for household expenses and mortgage payments. After they moved into the Northfield residence, defendant made all the installment payments on the new home. Plaintiff testified that from 1954 through 1957 she used about four or five thousand dollars of her own funds for family expenses and defendant testified that during this period he gave his wife between $285 and $508 a month for family expenses.

Plaintiff also testified that the family lawyer had told her that the Northfield home should be in her husband's name in order to take advantage of a marital trust will. The attorney, who was called on plaintiff's behalf, did not corroborate her testimony and stated that the will he proposed is designed to operate whether or not the property is held in joint tenancy.

Plaintiff contends that her contribution toward the purchase of the Glenview home, her signing of the...