In Re Marriage of Miller

595 N.E.2d 1349, 231 Ill. App. 3d 481, 172 Ill. Dec. 679
CourtAppellate Court of Illinois
DecidedJuly 7, 1992
Docket3-91-0282
StatusPublished
Cited by19 cases

This text of 595 N.E.2d 1349 (In Re Marriage of Miller) 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 Miller, 595 N.E.2d 1349, 231 Ill. App. 3d 481, 172 Ill. Dec. 679 (Ill. Ct. App. 1992).

Opinion

595 N.E.2d 1349 (1992)
231 Ill. App.3d 481
172 Ill.Dec. 679

In re MARRIAGE OF Georgianne MILLER, Petitioner-Appellant, and
Joseph A. Miller IV, Respondent-Appellee.

No. 3-91-0282.

Appellate Court of Illinois, Third District.

July 7, 1992.

*1351 Valerie Moehle Umholtz, Moehle, Swearingen & Associates, Ltd., Pekin, for Georgianne Miller.

Stephen W. Bush, Bush & Bush, Washington, for Joseph A. Miller IV.

*1350 Justice SLATER delivered the opinion of the court:

Petitioner Georgianne Miller and respondent Joseph A. Miller IV were married on December 7, 1987. One child was born during the marriage. A petition for dissolution of marriage was filed on August 2, 1989, and a judgment of dissolution was entered on February 22, 1991, which was modified on April 8, 1991. On appeal, petitioner raises the following issues: (1) whether the amount of child support awarded was against the manifest weight of the evidence; (2) whether the trial court abused its discretion in failing to award maintenance to petitioner; (3) whether the computation of marital contributions to non-marital property was against the manifest weight of the evidence; (4) whether a purported loan made by respondent should have been classified as a marital asset; (5) whether the trial court erred in awarding petitioner only 50% of the marital assets; and (6) whether the trial court erred in refusing to award petitioner a claimed arrearage in temporary child support. We affirm in part, reverse in part and remand.

Petitioner first contends that the child support award of $120 per week was against the manifest weight of the evidence. The trial court based the award on its finding that respondent's net weekly income was $600. Petitioner claims that respondent's income was much greater than that found by the court. She notes that the parties' lifestyle during the marriage included a nice home, clothes and cars, expensive jewelry, several vacations and membership in a country club. Petitioner also relies on her testimony that in 1984, while she was acting as a bookkeeper for the restaurant owned by respondent, he received unreported cash payments of $300 to $500 per week. In addition, petitioner notes that respondent's business paid for groceries, car expenses, country club and golf fees and provided meals at half price.

*1352 Respondent does not deny that large sums of money were spent during the marriage, but he notes that he received approximately $44,000 in non-recurring income during the marriage, primarily from the sale of a business and six parcels of real estate. Respondent contends that he has no other pending investments and that his present income is derived solely from his salary and interest he receives from certificates of deposit. Respondent also argues that petitioner's testimony regarding alleged unreported cash payments in 1984, three year's prior to the parties' marriage, did not establish that he currently receives such payments. Respondent notes petitioner's testimony that after the marriage the only time that she was aware that cash was taken out was to pay employees.

Section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) defines "net income" as the total of all income from all sources, minus various deductions such as federal and state income tax, social security payments and health insurance premiums (Ill.Rev.Stat. 1989, ch. 40, par. 505(a)(3)). The record in this case reflects that respondent receives $513 per week in wages and interest payments. The trial court initially found that respondent's net weekly income was $500. This finding was increased to $600, however, after petitioner filed her motion for reconsideration in which she pointed out that respondent's business paid for his car expenses ($93.50), country club dues and golf expenses ($87) and groceries ($105). Thus it is apparent that the trial court found that some of these items represented income to respondent, although which items and to what extent is unclear. The court may have found that some of these items represented reasonable business expenses rather than income. (See In re Marriage of DeGironemo (1990), 206 Ill.App.3d 1019, 151 Ill.Dec. 918, 565 N.E.2d 189.) Findings regarding net income are within the trial court's discretion (In re Marriage of Harmon (1991), 210 Ill.App.3d 92, 154 Ill.Dec. 727, 568 N.E.2d 948) and we find no abuse of that discretion here.

Similarly, we find no error by the trial court in failing to consider the alleged unreported cash income received by respondent. Petitioner's testimony regarding these sums largely concerned events prior to the parties' marriage and respondent denied receiving any such payments for several years. The trial court was in the best position to judge the credibility of the witnesses and its determination was not against the manifest weight of the evidence. In addition, while the parties' expenditures during the marriage suggest an income greater than that found by the court, respondent's testimony regarding receipt of over $40,000 in non-recurring income between 1988 and 1990 was largely undisputed. While non-recurring income may properly be included in calculating net income for purposes of child support (In re Marriage of Hart (1990), 194 Ill.App.3d 839, 141 Ill.Dec. 550, 551 N.E.2d 737), this is not an inflexible rule and the trial court has the discretion to exclude such income. To hold otherwise could lead to absurd results, as where a party's income is artificially inflated by a large capital gain on the sale of a residence. We believe that such determinations are best left to the sound discretion of the trial court.

Petitioner next contends that the trial court erred in failing to award maintenance. At the time the parties were married petitioner was a licensed beautician earning approximately $300 per week. She also worked as a bartender and waitress at respondent's business. She continued working until a few months before the parties' child, Joey, was born. After Joey was born petitioner worked occasionally at respondent's business and also worked as a beautician at home and at a salon in Peoria. Petitioner testified that the respondent "sabotaged" her in-home beautician business by being rude to her customers. Petitioner later attended college part-time seeking to obtain a teaching certificate. She testified that she would like to continue her education, but that it would be difficult to work and attend school and also take care of Joey and Nathan, her son by a previous marriage. At the time of the hearing petitioner was 30 years old and unemployed. *1353 She received approximately $13,000 in liquid assets as her share of the marital estate. The trial court found that petitioner was healthy and employable and had background and training making her suitable for a number of different occupations. The court further found that she had sufficient property and income to provide for her reasonable needs. The court ordered, based upon the short duration of the marriage and after considering the factors contained in section 504 of the Act, that respondent maintain petitioner's insurance coverage for two years as temporary maintenance, terminating upon petitioner obtaining employment.

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Cite This Page — Counsel Stack

Bluebook (online)
595 N.E.2d 1349, 231 Ill. App. 3d 481, 172 Ill. Dec. 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-miller-illappct-1992.