Pearlman v. Pearlman

266 N.E.2d 388, 131 Ill. App. 2d 388, 1970 Ill. App. LEXIS 1112
CourtAppellate Court of Illinois
DecidedNovember 23, 1970
Docket54198
StatusPublished
Cited by6 cases

This text of 266 N.E.2d 388 (Pearlman v. Pearlman) 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
Pearlman v. Pearlman, 266 N.E.2d 388, 131 Ill. App. 2d 388, 1970 Ill. App. LEXIS 1112 (Ill. Ct. App. 1970).

Opinion

Mr. JUSTICE MURPHY

delivered the opinion of the court:

This is a post-divorce decree proceeding. Upon the petition of defendant, David Pearlman, and based upon a written stipulation of agreed facts and memorandums submitted by both parties, the trial court entered an order which reduced the divorce decree alimony award of $200 a month to $100 a month. The plaintiff-respondent, Lorain Pearlman, appeals from the order, contending that the trial court abused its discretion in reducing the alimony award.

The stipulation of the agreed facts on which the court acted is as follows:

“1. The Decree of Divorce was entered in the above entitled cause on March 20th, 1963.
2. That the terms of the Decree provided inter alia that the defendant was to pay unto the plaintiff the sum of $200.00 per month as and for permanent alimony and the additional sum of $100.00 per month as and for the support and maintenance of the minor child of the parties, namely DONN.
3. That at the time the said Decree was entered the defendant earned the sum of $11,185.07 gross, on which he paid taxes of $1,784.48, giving him a net income after taxes of $9400.59.
4. That the plaintiffs income for the year 1963 was $3,661.68 gross, on which she paid taxes of $884.94, giving her a net income after taxes of $2,776.74.
5. That from 1963 through 1967 the plaintiff had one additional dependent, namely the minor child of the parties, DONN, whom she claimed as a dependent on her income tax returns.
6. That in 1965 the defendant remarried and his wife, SALLY, had two dependents, namely SHEILA and SHELDON, for whom the defendant assumed the obligation of support.
7. That the said SALLY DAVID PEARLMAN was gainfully employed throughout the marriage of the said parties.
8. That in 1968 the son of the parties hereto, namely DONN, became emancipated and no longer dependent upon either of the parties for support and the child support payments to the plaintiff were terminated.
9. That in 1968 the plaintiff earned a gross income of $7065.00 on which she paid taxes of $1,439.82, giving her a net income after taxes of $5625.18.
10. That in 1968 SALLY and DAVID PEARLMAN had a combined gross income of $28,302.85 on which they paid taxes of $4,667.90; that of the said income $25,159.00 was earned by the defendant on which he paid taxes of $4203.00, giving him a net income after taxes of $20,956.00."

The divorce decree entered on March 20, 1963, approved and included a “Property Settlement Agreement,” and made it a part of the divorce decree. As to alimony, the agreement states:

“9. The husband agrees to pay and the wife agrees to accept the sum of $200.00 monthly as and for her alimony, the payment of which shall commence with the month which follows the execution of this agreement and subsequent payments to be made in succeeding months thereafter until further order of this court.”

The divorce decree includes:

“(C) That the Defendant shall pay to the Plaintiff the sum of $200.00 each month as and for permanent alimony commencing on the 1st day of April, 1963.”

Plaintiff-respondent contends that to warrant modification of the alimony provisions of the decree of divorce, it must be shown that the conditions and circumstances of the parties have materiaHy changed since the entry of that decree. She argues that (1) the burden of showing the material change was on the petitioner herein; (2) the fact he remarried and has minor dependents by that second marriage does not, in itself, show such a material change; and (3) that the facts stipulated to herein do not sustain the defendant’s burden, and therefore the alimony provisions should not be modified. The authorities cited by plaintiff-respondent include Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139 (1964), and Gaines v. Gaines, 106 Ill.App.2d 9, 245 N.E.2d 574 (1969).

In Gregory v. Gregory, the court stated (p. 267):

“While the court may not change the amount past due under a decree of the court, it does have the power to modify the terms of a decree as to alimony and maintenances as shall appear reasonable and proper, the modification to apply to future payments. Chapter 40, Section 19, Illinois Revised Statutes. Our courts have laid down the rules upon which such modification shall be made. It must be shown that the conditions and circumstances of the parties have materially changed since the entry of the decree, so as to make the modification equitable.”

The court continued (p. 268):

“The remarriage of the defendant and a child by the second marriage does not present, in itself, a change of conditions sufficient to warrant a modification. Although the effect may be to deprive a second wife of support, from a legal standpoint, the first comes first and the second comes second. In other words, the first obfigations must be met before the second obfigations can or will be considered.”

The court in Gaines v. Gaines stated (p. 13):

“The plaintiff contends that the petition and amended petition for reduction of support payments do not state a sufficient change in circumstances to sustain a reduction in such payments. Any change in support payments is left to the discretion of the court, but it is well established that the petitioning party must demonstrate a sufficient change in circumstances since the previous decree.”

The defendant-petitioner contends that the modification of the decree by the lower court was within its discretion. He argues that this was proper due to plaintiff’s increased earnings and the emancipation of the dependent child, which reduced her expenses, subsequent to the entry of the original divorce decree. Defendant further argues that the amount of alimony received by plaintiff should be based upon her needs and station in life in 1963, not upon defendant’s present earning capacity. The authorities cited by defendant include Maginnis v. Maginnis, 323 Ill. 113, 153 N.E. 654 (1926); Herrick v. Herrick, 319 Ill. 146, 149 N.E. 820 (1925); Arnold v. Arnold, 332 Ill.App. 586, 76 N.E.2d 335 (1947); and Hoover v. Hoover, 307 Ill.App. 590, 30 N.E.2d 940 (1940).

In Maginnis v. Maginnis, the court stated (p. 118):

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Cite This Page — Counsel Stack

Bluebook (online)
266 N.E.2d 388, 131 Ill. App. 2d 388, 1970 Ill. App. LEXIS 1112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearlman-v-pearlman-illappct-1970.