Marriage of Einhorn, In re, s. 87-0129

• Decision Date: 23 September 1988
• Docket Number: Nos. 87-0129,87-0315,s. 87-0129
• Citation: 127 Ill.Dec. 411,533 N.E.2d 29,178 Ill.App.3d 212
• Parties: , 127 Ill.Dec. 411 In re the MARRIAGE OF Ann EINHORN, Petitioner-Appellant, and Jay Einhorn, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 29

533 N.E.2d 29

178 Ill.App.3d 212, 127 Ill.Dec. 411

In re the MARRIAGE OF Ann EINHORN, Petitioner-Appellant and Jay Einhorn, Respondent-Appellee.

Nos. 87-0129, 87-0315.

Appellate Court of Illinois First District, Fifth Division.

Sept. 23, 1988.

Law Offices of Robert E. Zeitner, Chicago, for petitioner-appellant.

John D. Gorby, Chicago, for respondent-appellee.

Presiding Justice LORENZ delivered the opinion of the court:

Both parties filed separate appeals, which were consolidated in this court, from a judgment of dissolution of their marriage.

Ann Einhorn contends the trial court abused its discretion by the following: (1) when it awarded her $70 per month as rehabilitative maintenance, (2) when it did not award her an apartment building that was marital property, (3) when it allowed either party to contemplate making extraordinary repairs to the apartment building, (4) when it did not require Jay to repay a "marital debt," and (5) when it did not require Jay to pay Ann's attorney fees and costs.

Jay raises only one issue: whether the trial court had the authority to order Ann to sign a written declaration under section 152(e) of the Internal Revenue Code (I.R.C. § 152(e) (1986)), stating she would not claim the dependency exemptions for their children.

We affirm in part, vacate in part, and remand.

The parties were married on September 13, 1968, and had three children: Catrin, Elias, and Aaron. The parties separated on April 22, 1982, and judgment for dissolution of marriage was entered on September 30, 1986.

Prior to trial, the parties entered into a joint custody agreement which gave Ann physical custody of the children for the majority of the time. The joint custody agreement was incorporated into the judgment for dissolution.

During the marriage, Jay earned a bachelor's degree in liberal arts, a master's degree in counsellor education, and a doctorate degree in psychology. At the time of trial, he was 37 years old and employed full-time as an administrator for a nursing home. He also had part-time teaching positions in two different universities. He testified his gross income in 1985 was $26,400 from his full-time position and a total of $3125 from his part-time positions. There was some evidence to indicate that Jay's gross income for 1986 may be approximately $35,000, however, this evidence was inconclusive.

Ann attended school in Wales, England, until she was 17 years old and does not have a high school diploma or its equivalent. At the time of trial, she was 40 years old, a housewife and otherwise unemployed. She contributed approximately 10 hours per week to her children's school on a volunteer basis. Ann testified that since she and Jay separated in April of 1982, she had not made any effort to find employment, however, she planned to do so once her youngest child was enrolled in school full-time in September of 1987. Subsequent to trial, Ann unsuccessfully sought employment from some local restaurants. In April of 1988, at oral argument, Ann's attorney stated Ann has not found employment because of "time constraints."

While married, the parties purchased a three-flat apartment building. They lived in one of the apartments, and rented the other two for $370 and $365 per month. At trial, the evidence established the building was valued between $94,000 and $115,000, and the unpaid mortgage balance was approximately $51,000. Ann testified the building was in "mediocre" condition and Jay testified it needed $40,000 to $50,000 worth of repairs.

The building was purchased in 1979 with the financial assistance of both parties' fathers. Jay's father gave them $10,000 as a gift. Ann's father, who lived in Britain and is now deceased, gave them 5,000 pounds (at that time, approximately $10,000 in United States' currency). At trial, when Ann was asked whether the money from her father was a loan or gift, she testified, "[d]ebatable. He said to different people different things," and stated she believed she had a "moral obligation" to repay the money even though her father is deceased. Jay's mother, Jennie Einhorn, who now lives with Ann, testified that Ann and Jay were to make payments to Ann's father of $100 per month. Jay made six or seven payments which Jennie deposited in a bank account in Ann's father's name.

On the other hand, Jay testified the money from Ann's father was a gift even though he signed certain loan documents. The documents were not introduced at trial. He explained Ann's father put the money in the form of a loan only because at the time, Britain had a prohibition on sending money out of the country unless it was a loan. Jay further testified he made deposits into Ann's father's bank account, not as repayment for the loan, but for the express purpose of allowing Ann's father to have some money for his next visit to the United States.

Ann testified she had 5,000 pounds (which she stated was the equivalent of $6,000 in United States' currency) in a savings account which she received as the beneficiary of her father's travel insurance policy. Contrary to Ann's testimony, Ann's attorney has repeatedly asserted that Ann inherited the money from her father, and that the money is restricted for her and her children's use to visit her family every two years in Britain. There was no evidence introduced at trial to establish a legal restriction on the money.

The court awarded Ann sole and exclusive possession of the apartment building until the youngest child turns 13 years old or graduates from eighth grade, whichever occurs first. At that time, the building is to be sold at fair market value and the proceeds from the sale are to be divided equally between Ann and Jay. During her possession, Ann is entitled to collect the rents from the two apartments. She is responsible for all ordinary repairs and expenses the mortgage, real estate taxes, and insurance.

The court ordered that each party is responsible for any debts owed to their respective parents that were incurred before the date of separation and "[s]pecifically [Ann] is to be responsible for repaying whatever loans she deems to be outstanding to her father."

The court found Jay was financially able to pay child support and maintenance. Ann was awarded $611 per month for child support and $70 per month for rehabilitative maintenance. The court stated it was imperative for Ann to seek employment and for that reason, ordered the maintenance award reviewable when the youngest child begins school full time.

The court also granted Ann tax dependency exemptions for the three minor children, unless she waives the exemptions.

After judgment was entered, Ann petitioned the court to award her attorney fees and costs against Jay. After a hearing, the court denied the motion, finding that Jay did not have the financial ability to pay the fees and costs.

Jay filed a post-trial motion requesting the court delete the paragraph of the judgment that granted Ann the tax dependency exemptions. Jay also moved the court to order Ann to sign a declaration of waiver of the exemptions. The court denied the motions and entered an order that stated section 152(e) of the Internal Revenue Code deprived the court from granting exemptions to the noncustodial parent and deprived the court from ordering the custodial parent to sign a written declaration waiving the exemption.

After ruling on the post-trial motions, both parties filed timely notices of appeal. The appeals were consolidated in this court.

OPINION

I.

Ann first argues that the court abused its discretion when it awarded her $70 per month for rehabilitative maintenance. She argues the court did not consider the factors in section 504(b) of the Marriage and Dissolution of Marriage Act in determining the amount of the maintenance award. (Ill.Rev.Stat.1985, ch. 40, par. 504(b).) She contends her current expenses exceed her income and her education and job skills restrict her to a job paying minimum wage. Ann believes she is entitled to a higher award of maintenance.

The Marriage and Dissolution of Marriage Act allows the trial court to award maintenance in an amount it deems just after considering the relevant factors including: the financial resources of the party seeking maintenance; the time required for that party to acquire sufficient education or training to find appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; the ability of the other spouse to pay maintenance while meeting his needs; and the tax consequences of the property division. Ill.Rev.Stat.1985, ch. 40, par. 504(b).

The standard for determining whether the trial court abused its discretion in awarding maintenance is whether no reasonable person would take the view of the trial court. (In re Marriage of Heller (1987), 153 Ill.App.3d 224, 106 Ill.Dec. 503, 505 N.E.2d 1294.) On appeal, a maintenance award will not be set aside unless it is against the manifest weight of the evidence. In re Marriage of Kristie (1987), 156 Ill.App.3d 821, 109 Ill.Dec. 393, 510 N.E.2d 14.

Ann receives $735 per month in rent for the two apartments in the building, $611 per month in child support, and $70 per month in maintenance. Ann testified the expenses for her and her children are $1,794.25 per month. Ann's monthly expenses exceed her income by approximately $378.

As for Jay's financial status, the court did not make a specific finding as to Jay's income, however, he testified his gross income for 1985 was $29,525. Jay testified his monthly expenses are approximately $120 more than his monthly net income.

Despite the fact that Ann's expenses exceed her income by a greater amount than Jay's expenses exceed his income, Ann has approximately $6,000 in a savings account and she has made practically no effort to find employment. Accordingly, Ann's belief she is entitled to additional...