Parello v. Parello

• Decision Date: 25 August 1980
• Docket Number: No. 79-2436,79-2436
• Citation: 42 Ill.Dec. 846,87 Ill.App.3d 926,409 N.E.2d 461
• Parties: , 42 Ill.Dec. 846 Virginia PARELLO, Petitioner-Appellee, v. Anthony PARELLO, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 461

409 N.E.2d 461

87 Ill.App.3d 926, 42 Ill.Dec. 846

Virginia PARELLO, Petitioner-Appellee, v. Anthony PARELLO, Respondent-Appellant.

No. 79-2436.

Appellate Court of Illinois, First District, First Division.

Aug. 25, 1980.

George S. Bellas, Sidney C. Kleinman, Ltd., Chicago, for respondent-appellant.

Helen Shapiro and Lee J. Schwartz, Lapin & Levine, Ltd., Chicago, for petitioner-appellee.

CAMPBELL, Justice:

This appeal is brought by respondent, Anthony Parello, from a judgment of dissolution of marriage and a supplementary order amending that judgment entered by the circuit court of Cook County on November 1, 1979, and December 13, 1979, respectively. This appeal raises the following issues:

(1) whether the trial court erred in entering a written judgment for dissolution which varied from its oral announcement of the judgment;

(2) whether the trial court erred in amending the judgment based on a second appraisal of the marital residence which it ordered sua sponte during its consideration of respondent's motion to vacate;

(3) whether the trial court erred in permitting petitioner to remain in the marital residence by buying out her husband's interest in the house; and

(4) whether the trial court erred in awarding maintenance.

We affirm in part and modify in part.

Virginia Parello (hereinafter petitioner) filed a petition for dissolution on May 22, 1978, based on mental cruelty. In the petition, she prayed for sole ownership and possession of the marital residence, maintenance, and certain injunctive relief pertaining to the protection of the marital property during the pendency of the suit. Respondent filed a counter-petition for dissolution which also sought sole use, possession and ownership of the marital residence. On July 17, 1979, in an uncontested hearing the trial court granted the dissolution on petitioner's petition.

The record of the hearing held relative to the disposition of the marital property discloses that the parties were married for 36 years and are the parents of two adult children. At the time of the hearing, the respondent was 60 years old and the petitioner was 53 years old. The parties' primary item of marital property, their marital residence, was owned in joint tenancy unencumbered by any mortgages or liens. A July 21, 1978 appraisal of the residence set its value at $38,675. Additional marital property included four certificates of deposit totalling $18,000, a savings account containing $480.27, and a municipal employees' pension fund for which respondent was eligible. The specifics of the pension fund are not included in the record, although it was noted at trial that respondent's employee contribution equalled approximately 8 3/4% of his gross pay.

Petitioner was not employed at the time of the hearing. She testified that she had no special skills or training and that her formal education had terminated after 1 1/2 years of high school. She has been employed sporadically during her marriage in a variety of jobs which included screw sorter and crossing guard. Her last employment was in a federally funded youth program. This job terminated in approximately 1966 or 1967. She also testified that she has been actively associated with a political party and that respondent obtained his job through her hard work with that party. She has not asked that party for a job for herself, although she said she could handle any job they might give her. She further stated that she is under a doctor's care for treatment of hypertension, emphysema, arthritis, and rheumatoid arthritis and is prevented from working at the present time because she is "crippled up." She has lived in her neighborhood all of her life and in her home for 19 years. She stated that she would be afraid to live by herself elsewhere which is why she wants possession of the marital residence. She also stated that her daughters live very near to her. She relies solely on public transportation to get around because she does not drive. She testified at the trial that she had not been able to obtain a mortgage to purchase respondent's interest in the marital residence.

Respondent testified that he has been employed by the City of Chicago as an operating engineer for over 17 years. His monthly net income, including overtime pay, was estimated to be approximately $1,460. His 1978 income tax return, showing a net income of $22,622, revealed that he also realized income from various part-time jobs. Respondent explained, during the hearing, that he was no longer doing any part-time jobs. He estimated that his monthly expenses were somewhat greater than his 1978 estimate of $1,087 because it did not include temporary support payments of $240 or the amount paid to his daughter for the preparation of his meals and for certain housekeeping chores. Respondent denied that his wife was an invalid.

On August 9, 1979, after hearing all of the testimony, the trial court made an oral announcement of its judgment and findings. Based on the fact that the parties could not reach a property agreement, the trial judge ordered the marital residence to be sold and the net proceeds divided equally. The remainder of the marital property was also to be divided equally. The trial court further ordered respondent to give 35% of his net income from his employment and 35% of any other income from other sources to petitioner as maintenance. The court also provided a set formula for the amount petitioner would receive from respondent's pension. In reaching its decision, the trial court noted that there was a discrepancy in the record as to respondent's monthly earnings in that a payroll exhibit showed respondent's take-home pay to be $1,678 rather than the $1,460 testified to by respondent.

On October 19, 1979, respondent filed a motion to reconsider alleging that the trial court's finding concerning his monthly income was against the manifest weight of the evidence, that the trial court had not found petitioner unemployable, and that undisclosed marital assets existed. At this time, petitioner filed a motion for entry of judgment. On November 1, 1979, the trial court was informed by petitioner's counsel that she was now able to buy out respondent's interest in the marital residence. The trial court denied respondent's motion to reconsider and entered judgment. In contrast to the oral judgment, the written judgment ordered respondent to quit-claim all of his right, title, and interest in the marital residence to his wife upon receipt of 50% of the appraised value of the residence, $19,337.50. Although the trial court informed respondent's counsel that his motion to reconsider could stand as a motion to vacate, a separate motion to vacate was subsequently filed. It alleged an inconsistency between the judgment signed by the trial court and the oral announcement of the judgment. On December 13, 1979, the trial court amended the judgment for dissolution to reflect the finding of a second appraisal. That appraisal found that the fair market value of the residence was now $36,000 due to certain winter damages incurred to the residence. At the same time, the trial court denied respondent's motion to vacate. A timely notice of appeal was filed on December 20, 1979.

The respondent's initial argument is that the trial court erred in entering a written judgment which differed from its oral announcement of the judgment. Respondent acknowledges that the trial judge ordered counsel to prepare a written draft of the judgment for him to sign and that consequently the judgment was not final until the signed judgment was filed. (Ill.Rev.Stat.1977, ch. 110A, par. 272; Stewart v. Stewart (1975), 35 Ill.App.3d 236, 341 N.E.2d 136; Pope v. Pope (1973), 12 Ill.App.3d 800, 299 N.E.2d 161.) He contends, however, that neither the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 1, et seq.) nor the Supreme Court Rules (Ill.Rev.Stat.1977, ch. 110A, par. 1, et seq.) permit the trial court to enter an order which varies from its oral rendition. He further contends that, even if the oral judgment could be altered, the trial court could not make the instant alteration based solely on the bare statement of petitioner's counsel that petitioner could now obtain the financing to buy out respondent when such financing was unavailable during the trial.

There has been a continued recognition by the courts of this state that:

" * * * (I)n the interim between the announcement of a final judgment in which the judge requires the submission of a form of written judgment and the actual signing of the written judgment the proceedings are in a state of temporary abeyance * * *" Green v. Green (1974), 21 Ill.App.3d 396, 402, 315 N.E.2d 324, 329.

In Pope v. Pope and Norwood v. Norwood (1948), 333 Ill.App. 469, 77 N.E.2d 552, it was held that, in this interim period, a trial court may consider changed circumstances and, thereafter, effectuate any change in the judgment which it determines to be proper. From the foregoing authority, it appears that the trial court was not restricted to either its oral judgment or its original findings.

During the November 1, 1979 hearing on respondent's motion to reconsider, petitioner's counsel informed the court of an offer by petitioner to respondent to buy out respondent's 50% interest in the marital residence in lieu of selling the residence and splitting the proceeds. Counsel explained that petitioner had arranged financing in order to buy out respondent. Respondent urges that under Dendrinos v. Dendrinos (1978), 58 Ill.App.3d 639, 16 Ill.Dec. 241, 374 N.E.2d 1016, even if the trial court could amend its judgment the testimony of counsel was hearsay and was not a proper substitute for an evidentiary hearing. From this, respondent concludes that the trial court should not have considered the foregoing statements by petitioner's counsel. We do not agree. Dendrinos is inapposite to the present cause as it involves serious allegations...