Crenshaw v. Crenshaw

360 N.E.2d 576, 45 Ill. App. 3d 880, 4 Ill. Dec. 640, 1977 Ill. App. LEXIS 2127
CourtAppellate Court of Illinois
DecidedFebruary 1, 1977
DocketNo. 62805
StatusPublished
Cited by3 cases

This text of 360 N.E.2d 576 (Crenshaw v. Crenshaw) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crenshaw v. Crenshaw, 360 N.E.2d 576, 45 Ill. App. 3d 880, 4 Ill. Dec. 640, 1977 Ill. App. LEXIS 2127 (Ill. Ct. App. 1977).

Opinion

Mr. JUSTICE STAMOS

delivered the opinion of the court:

Appellant, Barbara M. Crenshaw, appeals from a decree entered by the circuit court whereby she was granted a divorce from appellee, Mayron R. Crenshaw. The decree for divorce provided that appellant be awarded custody of their one minor child, a daughter aged 14; *250 per month for child support; all household furniture and furnishings; and a 1974 Chevrolet automobile. Appellee was ordered to provide a college education for the minor child if such is desired and appellee is financially able to do so; to maintain a medical insurance policy on behalf of the minor child; and to assume payment of all outstanding balances on the household furniture and furnishings and the 1974 Chevrolet automobile. In addition, the sale of the marital home was ordered with the proceeds derived therefrom to be divided equally between the parties. Appellant was awarded exclusive use and possession of the property until the sale. The questions of appellant’s right to alimony and of attorney’s fees were expressly reserved for further order of the court. On appeal, appellant contends that three provisions of the divorce decree are without sufficient evidentiary support and thus are an abuse of discretion. Appellant maintains that she should have been awarded permanent and exclusive possession of the marital home, an increased amount for child support, and appropriate periodic alimony.

This action was commenced on December 3, 1974, upon appellee’s filing of a complaint for divorce. Appellant responded by filing both an answer to the complaint and a counterclaim for separate maintenance. By her counterclaim, appellant prayed for, in part, a reasonable amount of both temporary and permanent separate maintenance, child support, and attorney’s fees. Following appellee’s answer to the counterclaim and by order of court, appellant was permitted to amend her counterclaim for separate maintenance to a counterclaim for divorce, and appellee’s previous answer was allowed to stand.

While the pretrial proceedings were progressing, appellant filed a petition seeking exclusive possession of the marital home during the pendency of the lawsuit. Thereafter, on January 17, 1975, the trial court entered an order requiring, inter alia, appellee to continue paying all expenses associated with the marital home and to pay appellant *250 per month “for food.” A hearing on appellant’s request for exclusive possession of the marital home was continued.

The cause came on for hearing on June 19, 1975, on appellee’s complaint for divorce, appellant’s counterclaim for divorce, and the responsive pleadings thereto. At that hearing, the grounds for divorce asserted in appellant’s counterclaim were uncontested, and the court announced that a dissolution of the marriage would be granted. The hearing then proceeded with respect to other matters encompassed by the divorce decree. At the conclusion of the proceedings, the divorce decree was entered. When appellant’s post-trial motion for a review of the ruling, or, in the alternative, a new trial was denied, this appeal was perfected. Sale of the marital home was stayed pending the outcome of this appeal.

Appellant initially contends that it was an abuse of discretion for the trial court to reserve the question of alimony. That appellant advances this position on appeal is somewhat surprising in view of the fact that her counsel requested the trial court on at least three occasions to reserve the question of alimony. During oral arguments before this court, counsel clarified his position. He explained that in the trial court he sought a “package” award for appellant to include exclusive ownership of the marital home and an appropriate amount for child support. If the trial court had awarded appellant this composite settlement, a reservation of the question of alimony would have been acceptable to counsel, indeed it was part of the package, in light of appellant’s financial status. However, since the trial court only awarded appellant one-half of the proceeds from the sale of the marital home and *250 per month for child support, it is now argued that the trial court abused its discretion by reserving the question of alimony. Appellant seeks a remandment of the cause with directions that the trial court award appellant either the marital home and a greater sum for child support, or a reasonable amount as alimony.

A trial court has the right to retain in a decree for divorce jurisdiction of the question of alimony. (Starrett v. Starrett (1907), 132 Ill. App. 314.) Thereafter, a party to the divorce proceedings can file a petition with the trial court, setting forth the divorce decree and the reservation of jurisdiction on the question of alimony contained therein, and request that an order awarding alimony be entered. Farris v. Kiriazis (1946), 329 Ill. App. 225, 67 N.E.2d 701.

In the instant case, the trial court did not abuse the broad discretion vested in it by reserving jurisdiction of the question of alimony, particularly in light of appellant’s repeated requests that it do so.

With regard to appellant’s contention that she is entitled to exclusive ownership of the marital home held by the parties in joint tenancy, section 17 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 18) and the decisional law construing that section are controlling. Section 17 provides as follows:

“Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.”

To justify the conveyance of one spouse’s interest in property to the other spouse pursuant to section 17, special equities or circumstances must be specifically alleged in the complaint or counterclaim for divorce and established by the evidence. (Persico v. Persico (1951), 409 Ill. 608, 100 N.E.2d 904.) For example, the contribution of money or services, other than those normally performed in a marital relationship, which has directly or indirectly been used to acquire or enhance the value of the property must be alleged and proven. (Overton v. Overton (1972), 6 Ill. App. 3d 1086, 287 N.E.2d 47.) Thus, bearing children or residing in the marital home do not operate to increase a wife’s equitable interest in the property (Everett v. Everett (1962), 25 Ill. 2d 342,185 N.E.2d 201), and voluntary payments by a wife for family expenses during the time the husband and the wife are living together do not create an indebtedness from the husband to the wife in the absence of an agreement. Spaulding v. Spaulding (1935), 361 Ill. 387, 198 N.E. 136.

In the instant case, appellant did not allege special equities or circumstances in her counterclaim for divorce. Even had she done so, the evidence fails to establish that appellee holds title to property equitably belonging to appellant.

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Related

In Re Marriage of Hilkovitch
464 N.E.2d 795 (Appellate Court of Illinois, 1984)
Laing v. Laing
371 N.E.2d 157 (Appellate Court of Illinois, 1977)
Comstock v. Comstock
370 N.E.2d 645 (Appellate Court of Illinois, 1977)

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Bluebook (online)
360 N.E.2d 576, 45 Ill. App. 3d 880, 4 Ill. Dec. 640, 1977 Ill. App. LEXIS 2127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crenshaw-v-crenshaw-illappct-1977.