In Re Marriage of Marcello

617 N.E.2d 289, 247 Ill. App. 3d 304, 187 Ill. Dec. 81, 1993 Ill. App. LEXIS 716
CourtAppellate Court of Illinois
DecidedMay 21, 1993
Docket1-91-3704
StatusPublished
Cited by20 cases

This text of 617 N.E.2d 289 (In Re Marriage of Marcello) 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 Marcello, 617 N.E.2d 289, 247 Ill. App. 3d 304, 187 Ill. Dec. 81, 1993 Ill. App. LEXIS 716 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On October 17, 1991, the trial court entered a judgment dissolving the marriage between petitioner, Cynthia M. Marcello and respondent, Michael A. Marcello. The judgment barred Cynthia from receiving maintenance, ordered joint custody of the couple’s 12-year-old son, provided for Michael’s payment of child support, and also distributed the property of the parties. Cynthia appeals, contending that the order of joint custody and the bar against maintenance are against the manifest weight of the evidence. In addition, Cynthia challenges the court’s valuation and distribution of marital assets and liabilities, and the apportionment of marital debt.

The parties were married on April 9, 1978, and had one child, Salvatore Michael Marcello (Sammy), who was born on May 28, 1979. The parties separated in November 1987. Sammy is in good health, has performed well in school, and has been enrolled in a science program for gifted students.

After the parties married, they lived in Elk Grove Village in a home owned by Cynthia prior to the marriage. In 1972, Cynthia had purchased the home for $36,500, subject to a mortgage debt of $32,000. The balance on the mortgage was $31,532 at the time of the marriage. The principal balance owed on the mortgage was $24,237 at the time of trial, which demonstrated a reduction of $7,295 from 1978 through 1991.

In 1987, the parties purchased a second home in Williams Bay, Wisconsin, for $80,000. Michael’s mother loaned the couple $18,162.10 to purchase the property.

Cynthia, age 43, has a high school education. At the time of trial, she worked at a suburban hotel as a concierge. Her gross income for 1990 was $10,489.29. Cynthia’s monthly net income during 1991 was $1,266.05, which included $375 as child support and $200 as temporary maintenance. Her monthly mortgage payment was $479, and her child care expenses were $150. In the pretrial memorandum, Cynthia described the condition of her health as “fair,” and that she suffered from lupus and the residual effects of a laminectomy.

At trial, Cynthia stated that her health was “very, very bad,” and that she was under the care of two physicians. She had back pain as well as pain in her joints, general fatigue, muscle aches, depression, and blood in her urine. She was taking two different medications. She was currently employed on a full-time basis as a concierge at a large hotel, but her position was subject to lay-offs during holiday seasons and low occupancy periods. Cynthia had previously worked as a hairdresser until she developed a skin problem which required her to stop such work many years prior to the parties’ separation. Her other work experience included employment at a travel agency, retail experience selling purses from her home, and employment as a cocktail waitress.

Cynthia stated that her father made a number of loans totalling approximately $40,000 to her and Michael throughout the course of their marriage. She never kept a record of the loans, but during the two-year period prior to the parties’ separation she kept bank deposit slips as evidence of those transactions. The deposit slips totalled approximately $8,500. Cynthia’s sister paid off a loan in the amount of $787.49 for a furniture bill owed by the couple, which Michael had promised to repay. The sister had also loaned Cynthia $3,000 after the parties separated because Michael was not supporting the family.

Cynthia further testified that Michael usually participates in Sammy’s school activities, has taken an active interest in his upbringing, and that he loves his son. She believed he should be permitted to participate in decisions regarding Sammy’s school and religious education. Similarly, she offered no opposition to Michael’s participation in decisions concerning Sammy’s medical treatment. Cynthia did not object to Sammy spending time with Michael so long as she was apprised of his whereabouts. She stated that on certain occasions Sammy expressed a dislike for spending time with his father when he arrived unexpectedly or while Sammy was at a friend’s house.

Michael, age 39, worked as a circulation driver for a Chicago newspaper. He earned $715 per week. In December 1988, he sustained a work-related shoulder injury. At the time of trial, Michael received temporary disability payments of $436.19 per week. Michael has a claim pending against his employer for this injury; however, the matter has not yet been resolved. Michael was living with his mother and occasionally paid rent.

Doctor Steven Kozlowski testified for Cynthia that he examined her in June 1986. He diagnosed Cynthia’s condition as probable fibromyalgia syndrome, and suspected the possibility of systemic lupus. Doctor Kozlowski next saw Cynthia in June 1987, and ordered a CT scan of the lumbar spine and an electro-myelogram. At that time, Cynthia suffered a herniated disk. She underwent a laminectomy, and he found definite evidence of auto-antibodies in her serum. Cynthia, through Doctor Kozlowski, attempted to establish a connection between the prescription drugs she was taking and the disease of systemic lupus; however, the trial court sustained Michael’s objection to such testimony.

Prior to trial, the court granted Cynthia’s motion in limine barring William Galioto, Michael’s brother-in-law, from testifying at trial as a witness for Michael. Galioto never responded to the subpoena to appear for a deposition at the office of Cynthia’s attorney. At trial, Michael called Galioto as a witness on his behalf. Cynthia reminded the judge of his ruling that Galioto would not be permitted to testify because he wilfully violated and disobeyed a subpoena and refused to appear for his deposition. The judge did not recall making such a ruling. After conducting a brief voir dire of Galioto, he allowed him to testify. Galioto testified that Michael told him that he needed $9,809.06 because the Williams Bay property was going into foreclosure. Galioto loaned the money to Michael, and it had not yet been repaid.

Michael’s monthly financial obligations included child support of $375; maintenance in the amount of $200 per month; mortgage payments of $740 on the Wisconsin property; utility bills of $100 and union dues in the amount of $40.

On May 1, 1989, the court entered an order requiring Michael to pay Cynthia the sum of $275 per month as temporary maintenance, and $473 as temporary child support. In the final judgment entered on October 17, 1991, Michael was ordered to pay Cynthia the sum of $375 per month for child support, and $75 per month as one-half of the child’s monthly day-care expenses. Cynthia was not awarded any maintenance. The court concluded that Cynthia had already received maintenance for four years (in fact, it was for a period of two years) and that she had not established any disability that would preclude her from maintaining employment.

The home located in Elk Grove Village which Cynthia owned prior to the marriage was characterized as Cynthia’s nonmarital property. According to the judge, the parties reduced the mortgage from $31,500 to $22,000, representing a net decrease of $9,500 while Michael resided in the house. The court allowed each party a credit of $4,750 toward said reduction.

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Cite This Page — Counsel Stack

Bluebook (online)
617 N.E.2d 289, 247 Ill. App. 3d 304, 187 Ill. Dec. 81, 1993 Ill. App. LEXIS 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-marcello-illappct-1993.