Marriage of Rogliano, In re

• Decision Date: 17 May 1990
• Docket Number: No. 5-89-0424,5-89-0424
• Parties: , 144 Ill.Dec. 595 In re MARRIAGE OF Julie ROGLIANO, Petitioner-Appellee, and Albert Rogliano, Jr., Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 1114

555 N.E.2d 1114

198 Ill.App.3d 404, 144 Ill.Dec. 595

In re MARRIAGE OF Julie ROGLIANO, Petitioner-Appellee,

and

Albert Rogliano, Jr., Respondent-Appellant.

No. 5-89-0424.

Appellate Court of Illinois,

Fifth District.

May 17, 1990.

John W. Leskera, Dunham, Boman & Leskera, East St. Louis, for respondent-appellant.

Grey Chatham, Chatham & Babka, Belleville, for petitioner-appellee.

Justice WELCH delivered the opinion of the court:

Albert Rogliano, Jr., (hereinafter "Husband") appeals from the judgment in dissolution of marriage entered May 26, 1989, by the circuit court of St. Clair County, and the subsequent order denying his post-trial motion to reconsider. Husband also appeals from the court's temporary order of December 2, 1988. Husband's appeal involves provisions in each order concerning the court's award of child support to Julie Rogliano (hereinafter "Wife").

Husband and Wife were married March 19, 1988, and the minor child was born August 31, 1988. The parties separated prior to the child's birth and Wife filed the petition for dissolution of marriage on October 28, 1988. The court ordered temporary child support in the amount of $700 per month beginning December 15, 1988. Hearing on all remaining issues was held May 10, 1989.

Husband is a general and thoracic surgeon who practiced in the Granite City, Illinois, area until December 31, 1987. Husband testified that he voluntarily left his practice because of dissatisfaction with the doctors' group with which he was associated. He testified that because of a restrictive covenant in his association agreement and an inability to pay start-up malpractice premiums and other costs, he decided not to start a private practice or seek employment in his field at that time. He was unemployed until March 1, 1989, at which time he began working as an emergency room physician at various hospitals on an independent contractor basis. During March and April 1989 Husband had net earnings of $7,200 per month, with the only deduction being for his malpractice insurance. Husband had gross income of $175,000 and after tax income of $72,000 in 1987. Husband had 1988 income in the amount of $15,000, attributable to his prior practice. Husband owned a $175,000 home with net equity of $31,000, two vehicles and a deposit account in the amount of $2,385 at the time of the final hearing. During Husband's unemployment he cashed in a money market certificate and individual retirement accounts totalling $41,500 to cover his living expenses, which were $3,500 per month according to Husband. He paid the ordered temporary support out of his savings until he began working in March 1989. Husband testified that he was $15,000 in arrears for payment of 1987 real estate taxes and other obligations as a result of his past unemployment.

Wife was the director of medical records at St. Elizabeth's Hospital in Granite City, Illinois, at the time of the final hearing, earning $29,000 per year, with net monthly income of $1,500. Wife returned to work full time two months after the birth of the minor child. Wife reported in answers to interrogatories that the necessary expenses of the minor child in March 1989 were $955 per month. The court found at both the temporary support hearing and the final hearing that the child's expenses were $990 per month. Wife's monthly expenses as reported in her answers to interrogatories were $650 per month. As Wife moved into her parents' home when the parties separated, she did not include any amount for housing or household expenses in either hers or her child's expenses. However, wife intended to establish her own household by June 1, 1989, and estimated that her housing expense would be at least $500 per month and utilities would be at least $125 per month.

In the May 26, 1989, order on all remaining issues the court found that Husband was employed, with gross income of $7,100 per month, and would have net income of approximately $5,100 per month. The court set child support at $1,100 per month based on the statutory amount of 20% of Husband's net income. Wife was awarded the dependency tax exemption and was ordered to continue the coverage of medical and dental insurance she presently had in place for the minor child. The parties were ordered to split the child's non-reimbursed medical expenses. Husband was ordered to maintain a policy of disability insurance and name the child as the sole beneficiary of a life insurance policy currently in effect. The court reserved ruling on issues regarding the child's educational expenses. The court ordered Husband to pay Wife $700 for November 1988, which was the month intervening between the filing of the temporary support petition and the month temporary support was ordered to begin.

Husband claims that the court abused its discretion in determining child support in the amount of $1,100 per month by arbitrarily and inappropriately relying on the minimum support percentage in the statutory guidelines because the award exceeded the amount of the child's necessary expenses resulting in a "windfall" to the Wife and because the court failed to take into account the Wife's income in making the award. Husband further takes issue with the court's order of temporary support in the amount of $700 per month during a period of time when he was unemployed and with the final order requiring him to pay $700 for support retroactive to the filing of the temporary petition. Husband also claims that the court abused its discretion when it awarded the dependency exemption to the Wife for purposes of Federal and State income tax purposes. Finally, Husband urges that the court erred in ordering him to name the minor child as the full and exclusive beneficiary of Husband's life insurance policy.

We will first discuss the error alleged in the court's temporary support order of $700 per month. In proceedings for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill.Rev.Stat.1987, ch. 40, par. 101 et seq.) either party may move for temporary support of a child of the marriage entitled to support. (Ill.Rev.Stat.1987, ch. 40, par. 501(a)(1).) The standards contained in section 505 of the Dissolution Act regarding child support are applicable to the determination of temporary child support. (Ill.Ann.Stat., ch. 40, par. 501(a)(2), Historical and Practice Notes, at 377 (Smith-Hurd 1980).) The award of temporary alimony and child support is dependent upon the financial ability and current circumstances of the parties, but the trial court has considerable discretion in awarding temporary alimony and support. (In re Marriage of Lang (1979), 73 Ill.App.3d 427, 429, 29 Ill.Dec. 888, 889, 392 N.E.2d 585, 586.) A trial court's decision as to awards of temporary allowances will not be set aside unless it is contrary to the manifest weight of the evidence. Lang, 73 Ill.App.3d at 429-30, 29 Ill.Dec. at 889, 392 N.E.2d at 586.

The record indicates that Wife filed her petition for temporary child support on November 30, 1988, alleging that the parties had been separated since July 17, 1988, that she had received no child support since their separation and that she lacked sufficient financial resources to support the parties' minor child. She testified at the hearing that she went back to work in October and that her net monthly income was $1,500. The child's day care expenses were $600 per month, food for the child was $90 per month, and diapers and clothing were $150 per month. Wife also submitted petitioner's exhibit 1, an itemization of expenses for her and the child, from which the court determined that the child's reasonable needs were $990 per month or $1,250 with a reasonable allowance for shelter.

Husband testified that while he had not worked since December 31, 1987, he had liquidated certain investments in order to meet his living expenses of $3,500 per month. Husband had purchased a $175,000 home in November 1987, with $25,000 in equity. He owned a 1987 Blazer and a 1977 Corvette. Husband testified that he had interest income from his Keogh plan and I.R.A.'s, but that he was not receiving it. Husband hoped to be back to work shortly after the first of the year, but would need fifty to sixty thousand dollars for malpractice insurance and start-up expenses to return to private practice. Wife's attorney noted that 20% of the $3,500 Husband was able to spend for his own living expenses was $700.

Based on the total reasonable expenses of $1,250 the court assessed $700 as Husband's temporary child support obligation. As Husband had no net income at the time, the court was bound to order support in an amount considered reasonable in the particular case. (See Ill.Rev.Stat.1987, ch. 40, par. 505(a)(5).) Based on the insufficiency of Wife's net income to support both her and the child and the availability of assets which Husband could liquidate to support his own lifestyle comfortably, we find $700 per month to be totally reasonable, consistent with the manifest weight of the evidence and not an abuse of discretion. Moreover, given that Husband had returned to work at the time of the final hearing earning some $7,100 per month, we find no abuse of discretion in the court ordering Husband to pay $700 in child support for the month of November 1988. Retroactive allowance of support in a dissolution proceeding is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just. Plant v. Plant (1974), 20 Ill.App.3d 5, 7, 312 N.E.2d 847, 849.

We will next discuss the error alleged in the court's award of final child support in the amount of $1,100 per month. An award of maintenance and child support is a matter within the sound discretion of the trial court and the award will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Dwan (1982), 108 Ill.App.3d 808, 812, 64 Ill.Dec. 340, 343, 439 N.E.2d 1005, 1008.)...