In Re Marriage of Kusper

552 N.E.2d 1023, 195 Ill. App. 3d 494, 142 Ill. Dec. 282, 1990 Ill. App. LEXIS 223
CourtAppellate Court of Illinois
DecidedFebruary 22, 1990
Docket1-88-1785
StatusPublished
Cited by11 cases

This text of 552 N.E.2d 1023 (In Re Marriage of Kusper) 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 Kusper, 552 N.E.2d 1023, 195 Ill. App. 3d 494, 142 Ill. Dec. 282, 1990 Ill. App. LEXIS 223 (Ill. Ct. App. 1990).

Opinion

JUSTICE JIGANTI

delivered the opinion of the court:

The trial court entered a judgment dissolving the marriage of Stanley and Evelyn Kusper. The court denied Evelyn’s post-trial motion for reconsideration, and she follows with this appeal. Evelyn is contesting the amount of the maintenance award, the court’s disallowance of her exhibit into evidence, and the order of the court directing her to pay one-half of her attorney fees. She is not contesting the property award.

At the time the court ordered the dissolution of their marriage, March 16, 1988, Evelyn Kusper was 50 years old and Stanley was 53 years old. They had been married since November of 1958 and had three adult sons. Evelyn has not worked outside the home since her children were born. In 1986, she received a degree of bachelor of arts psychology, social welfare. It is Evelyn’s intention to pursue a master’s degree in social work. She testified that she could complete the master's degree in three years of part-time coursework. According to Evelyn, after she obtains a master's degree, if she finds employment, she will probably be able to earn $18,000 to $19,000 per year. Stanley’s income, as stated in the parties’ income tax returns for the years 1981 to 1986, ranged from $92,771 to $131,163 for 1986. There is no testimony specifying the amount of Stanley’s income for 1987; however, Stanley testified that 1987 was an extraordinarily profitable year for his law firm.

The court awarded each of the parties approximately one-half of the marital assets. Evelyn’s share of the stipulated value of the property award was approximately $594,000. Included in Evelyn's award were the marital home unencumbered by mortgage, the home furnishings, and approximately $327,000 in investable income. Evelyn’s award also included $18,000 in nonmarital assets. The court awarded Evelyn $500 per month of maintenance for a period of 36 months for the purpose of completing her education.

Evelyn asserts that in determining her maintenance award, the court underestimated her expenses and overestimated her income. Evelyn proposes that the appropriate maintenance is $60,000 a year, reviewable after five years. The court directed Evelyn to pay one-half of her attorney fees, a finding Evelyn also contests on appeal.

In consideration of the maintenance award, the parties each offered testimony relating to marital and Evelyn’s personal expenses for the years 1984 through 1987, taking into account Stanley’s move from the marital residence in February of 1986. Stanley admitted that his testimony did not present a complete summary of Evelyn’s expenses as he was not aware of expenditures in certain categories which Evelyn paid for in cash. The total amount of expenses Stanley testified to for Evelyn varies between $14,923 to $17,914 per year. Stanley’s argument is that taking everything into account, Evelyn’s annual expenses during the marriage did not exceed $20,000 per year.

Evelyn’s testimony included expenses Stanley did not testify to. Evelyn attests that in 1986, in addition to the sums Stanley testified to, she had to spend $6,825 from an inheritance in order to pay bills and living expenses. When Evelyn’s additional expenses are added to the expenses Stanley testified to, her expenditures for the years 1985 and 1986 total $24,421 and $24,233, respectively. Evelyn testified that she incurred some expenses that she paid for with cash and for which she has no receipts or statements.

Evelyn also testified to certain anticipated needs which she has been unable to afford. Evelyn indicated the house that she received as part of the property settlement was in need of certain repairs, including a new furnace and a new roof, plumbing repairs, and furniture and carpet replacement. Additionally, Evelyn anticipates a heretofore unnecessary need for professional clothing once she embarks on her further education and career. Evelyn testified that tuition expenses to obtain her master’s degree will be approximately $10,000 per year for three years.

The parties also testified that during the marriage, Stanley’s medical insurance covered Evelyn’s medical expenses and that dental care was provided by a family friend. Evelyn will no longer be a party to Stanley’s insurance policy, and she is uncertain whether Stanley’s friend will still provide her with dental care. Up until a few years ago, ' Evelyn accompanied Stanley on a regular basis to the family vacation spot in Michigan. Stanley’s father left the vacation home to Stanley, and it was awarded to him as nonmarital property in the judgment of dissolution. Similarly, the family possessed season tickets to Bears games that were awarded to Stanley in the settlement. Evelyn testified that up until the time the marriage began to disintegrate, she enjoyed going to the games with Stanley. The parties also testified they had lived a frugal life that had enabled them to accumulate savings.

Evelyn presented to the court an exhibit in the form of an affidavit summarizing in specific amounts the expenses she expects to incur in lieu of or in addition to those incurred during the marriage. Evelyn contends that the trial court erred in refusing to allow the introduction of her exhibit into evidence.

Whether evidence is to be admitted is a matter largely within the discretion of the trial court, and the court’s decision will not be reversed unless such discretion is clearly abused. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327.) In the present case, Evelyn did not testify to many of the amounts or categories included in the exhibit but relied solely on the exhibit as evidence of her reasonable needs in these categories. Evelyn had the opportunity to testify in detail about her reasonable needs, and as she points out, she was “clearly competent” to testify to the items set forth in the exhibit. Evelyn was not prejudiced by the trial court’s exclusion of the affidavit. We do not believe the trial court abused its discretion in disallowing the exhibit.

Evelyn has investable income of approximately $327,000. Stanley argued to the trial court that if Evelyn invested this amount at 8% interest, she would be able to earn investment income of at least $23,840 a year. Included in Evelyn’s investable income is her share of a note receivable that the court distributed as part of the marital property settlement. The receivable, known as the Cummings note, is a secured promissory note with a guaranteed 15% rate of annual interest. At the time of trial, the note had been overdue since February 11, 1985. The parties stipulated to the value of the note. Evelyn’s share comes to approximately $170,000. As of the time of her post-trial motion, Evelyn had not received any payment from the note. In her post-trial motion, and here on appeal, Evelyn argues that because she is unable to collect on the Cummings note, the court should not include the value of the note in calculating her annual investment income for the purposes of determining maintenance. Evelyn calculates that without the Cummings note, her investment income will be $12,489 per year.

We do not believe there is any error in including the value of the Cummings note in estimating Evelyn’s investable income for the purpose of determining maintenance.

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Cite This Page — Counsel Stack

Bluebook (online)
552 N.E.2d 1023, 195 Ill. App. 3d 494, 142 Ill. Dec. 282, 1990 Ill. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kusper-illappct-1990.