Marriage of Hilkovitch, In re

• Decision Date: 24 May 1984
• Docket Number: 82-1460 and 82-2200,Nos. 82-809,s. 82-809
• Citation: 464 N.E.2d 795,79 Ill.Dec. 891,124 Ill.App.3d 401
• Parties: , 79 Ill.Dec. 891 In re the MARRIAGE OF Lorraine HILKOVITCH, Petitioner-Appellee, and Dennis Hilkovitch, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 795

464 N.E.2d 795

124 Ill.App.3d 401, 79 Ill.Dec. 891

In re the MARRIAGE OF Lorraine HILKOVITCH, Petitioner-Appellee,

and

Dennis Hilkovitch, Respondent-Appellant.

Nos. 82-809, 82-1460 and 82-2200.

Appellate Court of Illinois,

First District, Fourth Division.

May 24, 1984.

[79 Ill.Dec. 893] Rinella & Rinella, Ltd., Herbert H. Fisher and Douglas Polsky, Chicago (David B. Carlson, Joseph G. Phelps, David A. Novoselsky, Chicago, of counsel), for appellant

Beerman, Swerdlove, Woloshin, Barezky & Berkson, Chicago (Nathan Swerdlove, Howard A. London, Barbara N. Fox, Chicago, of counsel), for petitioner-appellee.

LINN, Presiding Justice:

On October 10, 1979, Lorraine Hilkovitch filed a petition for dissolution of her 12-year marriage to Dennis Hilkovitch. Following a contested trial in the circuit court of Cook County on the issues of property distribution, maintenance, and child support for the couple's two minor children, a judgment of dissolution of marriage was entered on January 14, 1982, the issues of attorney's fees being reserved for future determination.

On February 5, 1982, Lorraine filed a petition for a rule to show cause, claiming that Dennis was in arrears in his unallocated maintenance and child support payments. After a hearing, Dennis was found to be in willful contempt of court for failing to pay $12,396 in support due through April 30, 1982, and he was sentenced to 20 days in the Cook County House of Corrections. The commitment order also provided that Dennis could regain his freedom by paying one-third of the arrearage. Finally, on March 11, 1982, Lorraine filed an emergency petition for the appointment of "a receiver and/or sequestrator" to manage and sell Dennis's businesses, the proceeds of the sale to be used to pay the arrearages and for other purposes designated by the court. His responsive petition for change of venue was denied, and on September 9, 1982, an order was entered appointing a receiver-sequestrator.

Dennis Hilkovitch has filed three appeals. By our order, the appeals have been consolidated.

In the first appeal (82-809), Dennis attacks the provisions of the January 14, 1982 dissolution of marriage judgment determining unallocated maintenance and child support, future support allowances, and property valuation and distribution. Specifically, Dennis argues that the trial court abused its discretion when it divided the marital property and determined the award of maintenance and child support because the statutory standards designed to guide decisions on both issues were ignored. Alternatively, Dennis appeals from the order of April 1, 1982 denying him a new trial.

In the second appeal (82-1460), Dennis attacks the post-judgment order of June 17, 1982 finding him in contempt of court for failing to pay an arrearage of $12,396 in unallocated maintenance and child support and sentencing him to 20 days' confinement as a sanction for the contempt. Dennis argues that his failure to pay was not a willful violation of an order of the court Finally, in the third appeal (82-2200), Dennis attacks the September 9, 1982 order appointing a receiver-sequestrator of certain properties previously awarded to him, maintaining that the trial court erred in denying his motion for a change of venue and thereby rendered void all orders entered subsequent to its denial. Alternatively, if the denial of his motion was not error, Dennis claims that the trial court committed reversible error by (1) failing to conduct a hearing before appointing the receiver-sequestrator, or by (2) entering the order appointing the receiver-sequestrator when it had no jurisdiction to do so.

[79 Ill.Dec. 894] and therefore not contumacious because the award itself was not based upon his actual income as established through his testimony and exhibits.

We affirm the decision of the trial court on all issues.

FACTS

Dennis and Lorraine Hilkovitch were married on November 18, 1967. During their marriage, Dennis was employed in the retail food and beverage industry, while Lorraine worked at Allstate Insurance Company until the birth of their first child in 1970. Since that time, Lorraine has been a full-time housewife, taking care of the couple's two children, Jason and Nicole, and managing the family's home. In 1979, however, Lorraine enrolled in a marketing program at a local junior college to prepare for re-entry into the work force, and she recently joined a neighbor in cleaning houses five or six days a month.

During the course of the marriage, the couple acquired interests in both real estate and business ventures. In 1969, they purchased a 50% interest in Plush Pup, Inc., a hot dog stand that Dennis managed. In 1972, they purchased a 33 1/3% interest in a second hot dog stand, Plush Pup II, which was operated by another of the shareholding partners. Dennis and Lorraine bought a home in Park Ridge in 1974 and a vacant lot in Riverwoods in 1977. Finally, in 1978, they acquired a bar, named it "Nasty Habits," and incorporated it as JNH, Inc. Purchase of these properties was made through savings, bank loans, loans from Dennis's mother, Charlotte Hilkovitch, or a combination of these. Prior to trial, the parties stipulated that the net worth of the Park Ridge home was $100,000, the Riverwoods lot $55,000 to $60,000, and the three businesses together $155,000 to $160,000.

Testimony by the parties at trial established that Dennis earned $445 per week at the hot dog stand and $200 plus tips of $60 to $350 weekly from the bar. The couple's income tax returns reflect a yearly gross income of approximately $35,000 and a yearly net income of approximately $24,500. During the course of the marriage, Dennis gave Lorraine $430 weekly for household expenses, $230 by check drawn on Plush Pup, Inc., and $200 in cash. In addition, he would pay the couple's accumulated charge account bills, over $2,000 yearly in real estate taxes on both parcels of real estate, approximately $900 yearly for gifts, $2,500 yearly on vacations, and $40 weekly to go out to dinner, as well as giving Lorraine an additional $300 monthly when she ran short of money.

From 1975 to 1980, Dennis paid $110.50 per month on a home improvement loan. From 1978 to 1981, he spent $487.21 monthly to pay off a loan used to help in purchasing the bar, and in 1977 he began repaying a $25,000 loan from his mother at more than $1,000 monthly. From time to time he made other payments to his mother to reduce the balance of other loans she had made to him. During all this time, even when the couple traveled to Hawaii, Jamaica, Mexico, Europe, or the Bahamas, according to Lorraine their lifestyle did not change although Dennis was repaying significant sums each month for the various loans.

Dennis moved out of the marital home in May, 1979 but continued paying the real estate taxes on both pieces of property as well as giving Lorraine approximately $2,000 monthly for household expenses. At the same time he was maintaining a separate household in an apartment. When the children visited with him, he took them to restaurants for their meals, at a At trial, Lorraine introduced two affidavits detailing her average monthly expenses and a statement showing the various debts accumulated by the couple with the monthly payments due on each. The first expense affidavit had been prepared immediately after the couple separated in 1979, while the second was prepared two years later at the time of the hearing. Lorraine testified that after she and Dennis separated, she was not able to maintain the same lifestyle the couple had enjoyed while together, and the 1979 affidavit, which stated her necessary monthly expenses to be $2,376.15, reflected this drop in her standard of living and her corresponding inability to pay for automobile maintenance, dental work for the children, religious schooling, and some necessary household repairs. The 1981 affidavit, on the other hand, which stated her monthly expenses to be $3,488.24, took into account an increase in the cost of living, the assumption by Lorraine of several financial obligations previously paid by Dennis, and certain necessary projected expenses to be incurred in the near future.

[79 Ill.Dec. 895] cost of more than $30 daily. In the fall of 1980, he began giving Lorraine only $380 weekly, and he occasionally reduced that amount to $300 or less. At the same time, however, he agreed to make the payments on the couple's outstanding charge account balances.

During the course of the trial, Dennis sold his one-third interest in Plush Pup II to the remaining two partners for $4,984, a sale he claimed was forced. Lorraine protested that the sale was either a sham or a dissipation of marital assets because Dennis had stipulated at trial that the value of his stock was $50,000, and he previously had signed a written shareholders' agreement that apparently guaranteed him a minimum of $50,000 if he sold his interest to the other two partners.

When Dennis was called by Lorraine's attorney as an adverse witness (Ill.Rev.Stat.1981, ch. 110, par. 2-1102), his testimony established that since his separation from Lorraine he had spent between $50,000 and $79,000 yearly. The 1979 post-separation bank statements reflecting his personal checking account showed additional monthly deposits of cash from Plush Pup and Nasty Habits ranging between $334 and $1489. Dennis also testified that he purchased cashier's checks with funds from either his personal account or one of the business accounts and used them to pay other personal bills.

At the conclusion of all the testimony and argument by counsel, the trial court entered a judgment of dissolution that contained, inter alia, the following findings and rulings:

1. That the parties' stipulation and testimony established that the marital home and the vacant land together had the same net equity value as Dennis's equity interests in the three corporations, Plush Pup, Inc., Plush Pup II, and Nasty...