In Re Marriage of Gocal

576 N.E.2d 946, 216 Ill. App. 3d 221, 159 Ill. Dec. 1023, 1991 Ill. App. LEXIS 1116
CourtAppellate Court of Illinois
DecidedJune 27, 1991
Docket1-90-0303
StatusPublished
Cited by5 cases

This text of 576 N.E.2d 946 (In Re Marriage of Gocal) 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
In Re Marriage of Gocal, 576 N.E.2d 946, 216 Ill. App. 3d 221, 159 Ill. Dec. 1023, 1991 Ill. App. LEXIS 1116 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The respondent, Michael Gocal, appeals from an order of the trial court in which the court created a trust from the respondent’s nonmarital property for the support of his child through marriage to the petitioner, Barbara Gocal. Michael questions the authority of the trial court to create the trust and also contends that the court improperly directed that unallocated maintenance and a subsequent award of attorney fees be paid out of the monies earmarked for the trust fund. Michael also argues that Barbara’s attorney fees were excessive and raises an issue with respect to his visitation rights.

The parties were married in May of 1982. Barbara Gocal left the marital home in 1984, taking the parties’ young son, Matthew, who was born in July of 1983. In September of 1984, an order was entered requiring Michael Gocal to pay temporary child support for Matthew. Michael fell in arrears in his child support payments, and in March of 1988 the parties settled the accumulated arrearage. Michael again fell into arrears for child support due in 1988 and 1989. Although Barbara filed numerous motions concerning the child support, a contempt order was never entered against Michael.

During the marriage, Michael suffered a work-related injury. He filed a personal injury lawsuit, and in 1987 he received a settlement in the amount of approximately $95,000. He spent $45,000 and placed the remaining $50,000 in a mutual fund under his mother’s name.

At the time of the proceedings below, Michael had had bouts of manic depressive disorder. He had been hospitalized on occasion for treatment. At the time of the dissolution, Michael’s most recent hospitalizations had occurred in August and October of 1989. Michael admitted that if he did not take the medication he had been prescribed, he would require hospitalization. Michael’s psychiatrist testified that Michael’s prognosis was reasonably good if he continued his treatment.

Barbara testified that during 1982 and 1983, Michael abused alcohol and cocaine. She also testified that Michael had exhibited periods of aggressive behavior with members of his family and had assaulted his aunt. There was no evidence that Michael was aggressive or violent toward his son, Matthew. Like Michael, Matthew had also been diagnosed as a manic depressive. At the time of the proceedings, Matthew was receiving psychiatric treatment.

During 1988 and 1989, Michael enjoyed unsupervised visitation with his son, Matthew. During the pendency of the action below, the court appointed an attorney to represent the interests of Matthew. The court-appointed attorney reported in June of 1989 that in her opinion, Matthew and Michael had a positive relationship and that Matthew was happy with Michael. The attorney recommended that Michael be allowed unsupervised, regular visitation with Matthew. In a subsequent follow-up report, after Michael had suffered a violent episode and been hospitalized, Matthew’s attorney recommended that no further visitations be allowed until Michael had stabilized. In her final report in December of 1989, the attorney recommended that the visits between Michael and Matthew be resumed on a supervised basis.

On December 26, 1989, the trial court entered an order dissolving the marriage of Barbara and Michael Gocal. Michael was granted supervised visitation with Matthew for 12 months, after which Michael could petition the court for a modification of the visitation provision. The trial court stated that its intention was to eventually allow Michael to have unsupervised visitation with Matthew.

In determining the property distribution, the trial court specifically found that the $95,000 Michael received in settlement of his personal injury lawsuit was nonmarital property. The court also determined that in spending $45,000 of the settlement sum, Michael had not dissipated marital assets.

The court further ordered Michael to turn over to Barbara’s attorney the remaining $50,000 of the settlement proceeds which he had placed in a mutual fund under his mother’s name. Pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Marriage and Dissolution Act) (111. Rev. Stat. 1987, ch. 40, par. 503(g)), the court directed Barbara’s attorney to establish a trust fund and make the following disbursements:

$20,000 for Matthew’s unpaid psychiatric bills;
$2,928 in child support arrearage for the period post-January 1, 1988;
$5,892 in attorney fees to the attorney appointed to represent Matthew’s interests;
$15,600 in unallocated support to Barbara and Matthew at the rate of $1,300 per month for 12 months, after which the court upon petition would review the support award.

In January of 1990, Barbara’s attorney petitioned the court for payment of attorney fees. The attorney’s petition was accompanied by an exhibit summarizing $12,187 worth of hours. In addition, the attorney testified to $3,900 of in-court fees, $662 of court costs, and a payment made to her by Barbara in the amount of $3,000. The court awarded Barbara’s attorney the sum of $19,500. Finding Barbara without the means to pay the attorney fees, the trial court, pursuant to section 508 of the Marriage and Dissolution Act, directed that the fee award be paid out of the monies Barbara’s attorney was holding pursuant to establishing the trust fund as ordered by the court in the judgment for dissolution. Ill. Rev. Stat. 1987, ch. 40, par. 508.

On appeal, Michael asserts that the trial court improperly invoked the remedial provision of section 503(g) of the Marriage and Dissolution Act in creating a trust for Matthew and Barbara’s benefit. Citing to In re Marriage of Bates (1986), 141 Ill. App. 3d 566, 490 N.E.2d 1014, Michael argues that the court is without authority to create such a trust absent a finding that the parent has been found in willful contempt of the court’s child support order. Further, Michael asserts that the court erred in directing out of the trust funds the disbursements for unallocated maintenance and for Barbara’s attorney fees, which he argues are in any case excessive. Michael admits that both the unallocated maintenance and the attorney fees have already been paid out of the trust monies. He seeks reimbursement only for any portion of the attorney fees that are deemed improper.

We do not believe that the trial court improperly invoked section 503(g) of the Marriage and Dissolution Act in creating a trust for the benefit of Michael’s son, Matthew. Under section 503(g), “[t]he court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” Ill. Rev. Stat. 1987, ch. 40, par. 503(g).

Section 503(g) does not require, as a prerequisite to establishing a trust, a finding that the party has been in willful contempt of a court order.

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Bluebook (online)
576 N.E.2d 946, 216 Ill. App. 3d 221, 159 Ill. Dec. 1023, 1991 Ill. App. LEXIS 1116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gocal-illappct-1991.