In Re Marriage of Kerber

574 N.E.2d 830, 215 Ill. App. 3d 248, 158 Ill. Dec. 717, 1991 Ill. App. LEXIS 1030
CourtAppellate Court of Illinois
DecidedJune 18, 1991
Docket4-90-0791
StatusPublished
Cited by25 cases

This text of 574 N.E.2d 830 (In Re Marriage of Kerber) 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 Kerber, 574 N.E.2d 830, 215 Ill. App. 3d 248, 158 Ill. Dec. 717, 1991 Ill. App. LEXIS 1030 (Ill. Ct. App. 1991).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

The circuit court of Sangamon County entered a judgment of dissolution of marriage dissolving the marriage between Donald and Voncella Kerber on September 18, 1990. The court awarded Voncella $600 per month in rehabilitative maintenance for a period of one year, her nonmarital property, and divided the marital property between the parties. Voncella appeals, challenging both the maintenance award and the distribution of marital assets. We affirm the distribution of marital assets but find the award of time-limited maintenance to be an abuse of discretion, and therefore modify the award.

Donald and Voncella Kerber were married on November 5, 1960. They had four children together, all of whom have reached majority age. The two youngest children, Don Kerber, Jr., and Leighann Kerber, ages 24 and 19, respectively, currently live with Voncella, and both work full time.

Voncella is 50 years old, has a high-school education, and does not appear to have any specialized skills for working outside the home. When the parties married, Voncella worked as a dental assistant, but quit when she became pregnant, and stayed home to raise the children. She testified that during the marriage Donald discouraged her from working outside the home, and at one point told her not to accept a job that was offered to her. Voncella did not have any employment until after the separation in June 1989, when she began working part time as a food demonstrator, promoting food products. She testified she wishes to enroll in a 10-month program in massage therapy to become a registered physical therapist. The cost of this program is approximately $4,000.

Voncella has $445 to $485 in monthly income from monthly payment on balance of a contract for deed from her brother, rent from an elderly woman living on one of her nonmarital properties, and from her job as a food demonstrator. In her financial affidavit, she claims $939 in monthly expenses, including $400 for food and household supplies, $150 in gas, oil, and vehicle repairs, $225 average for utilities, $46 for phone, and $120 in medical insurance. Voncella also testified she pays approximately $600 in property taxes and insurance. However, when the itemized figures in this affidavit were contrasted at trial with her actual checkbook entries for these expenses, she acknowledged her expenses could be as low as $650 to $700 per month, and that a portion of the expenses listed included expenses for her two children who are living with her.

Voncella asserts she suffers from poor health, specifically a painful ankle, chronic migraine headaches, and trigeminal neuralgia, a nerve condition causing facial pain. She testified the headaches and trigeminal neuralgia are severe and she cannot work when she experiences these conditions. Harriet Becky, a neighbor of the Kerbers, confirmed Voncella’s headaches are severe, and she suffers one at least once a month. Leighann Kerber also testified her mother experiences severe headaches and trigeminal neuralgia. Voncella testified she has not seen a doctor “in years” because she cannot afford it.

Donald Kerber is 53 years old, and earns $34,668 as an assistant administrator for the Secretary of State. In his first financial affidavit of July 21, 1989, he listed monthly expenses of $920.33. By the day of the hearing, on August 6, 1990, Donald’s expenses rose to $1,630 per month, including approximately $300 for food and household expenses, $85 for vacations, $175 in cigarettes and liquor, and $250 in attorney fees. His testimony revealed he usually pays only $100 per month in attorney fees. He also testified he was living with Linda Travis, and his expenses of meals out ($70), vacation ($85), liquor, beer, and cigarettes ($175), constituted his share of the expenses.

On October 23, 1990, the circuit court entered an amended judgment of dissolution of marriage. The court ordered Donald to pay Voncélla $600 per month in rehabilitative maintenance for a period of one year “at which time the court shall review the rehabilitative maintenance award.” The court distributed the marital and nonmarital assets as follows, with the values as to each stipulated to by the parties:

Voncella Donald
Marital residence $49,000.00
Fiat pension $25,209.46
Personal property 3.010.00
Knights of Columbus
Policy No. W13169 541.59
Policy No. L68289 2.516.00
2,484.66 IRA No. 100B5751
Metropolitan insurance policy 12,117.82
Series E and EE bonds 4,146.51 4,146.51
1983 Thunderbird 700.00
1988 Plymouth 70.00
State of Illinois pension 4,470.52
$59,372.51 $49,040.56
Voncella’s nonmarital property:
208 N. 2d Street, Riverton $15,000.00
Two 40’ by 100’ empty lots in Riverton 6,000.00
Balance due on a contract for deed from John Alex Bonas 4,900.00
Bank of Riverton stock 920 shares at fair market value of $4.50 per share 4,144.50
$30,044.50
TOTAL $89,417.01 $49,040.56

This appeal followed.

An award of maintenance is warranted when the court finds the spouse seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself. (Ill. Rev. Stat. 1989, ch. 40, par. 504(a); In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269, 511 N.E.2d 156, 166.) A spouse need not be reduced to poverty before maintenance is appropriate. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 852, 551 N.E.2d 737, 745 (Steigmann, J., specially concurring).) Further, a spouse is not required to sell off his or her assets or capital in order to maintain the standard of living established during the marriage. In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 750, 534 N.E.2d 1014, 1018.

An award of maintenance is within the discretion of the trial court and should not be reversed unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 574, 521 N.E.2d 621, 626.) Under section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par.

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Bluebook (online)
574 N.E.2d 830, 215 Ill. App. 3d 248, 158 Ill. Dec. 717, 1991 Ill. App. LEXIS 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kerber-illappct-1991.