Sullivan v. Sullivan

373 N.E.2d 829, 57 Ill. App. 3d 958
CourtAppellate Court of Illinois
DecidedMarch 9, 1978
Docket77-346
StatusPublished
Cited by16 cases

This text of 373 N.E.2d 829 (Sullivan v. Sullivan) 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
Sullivan v. Sullivan, 373 N.E.2d 829, 57 Ill. App. 3d 958 (Ill. Ct. App. 1978).

Opinion

Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Mary Ann Sullivan, appeals from the trial court’s denial of her counterclaim for arrearages under a prior foreign divorce decree, increased child support and attorney’s fees. The proceedings were initiated by plaintiff when he filed a petition for change of custody of one of the parties’ minor children. No appeal has been taken from the trial court’s denial of plaintiff’s petition.

The parties were divorced October 9, 1968, in the State of New York. Under the terms of a separation agreement which was incorporated into the divorce decree, defendant obtained custody of the parties seven children. Of those children, one is now emancipated and the remaining children range in age from 9 to 19 years. The separation agreement provided for *90 per month child support for each child and *25 per month as alimony. Provisions were also included for increasing alimony as the children attained the age of 21. Plaintiff has been paying defendant a total of *700 per month for alimony and child support. While some confusion exists in the testimony as to what the respective amounts of child support and alimony are, plaintiff claimed an alimony deduction of *2,225 (or *188 per month) on his 1976 Federal income tax return. By the terms of the decree, plaintiff is entitled to claim all children of the marriage as dependents. The separation agreement also contained certain provisions relating to the parties marital domicile in New York and which form part of the present dispute.

Paragraph 9 of the New York decree provided that plaintiff pay all monthly mortgage payments on the marital property in Painted Post, New York (which included principal, interest, taxes and insurance premiums). All maintenance and repairs on the premises were also to be paid by the plaintiff. Paragraph 9 also provided in material part,

“If the premises * “ * are by mutual consent of the parties hereto, sold before the youngest of issue * * * is twenty-one (21) years of age, or is sooner emancipated, any equity existing at that time in the real property which is not re-invested at the time of the sale into other residential property for the party of the first part and the issue of the marriage, shall at the time of the sale be divided between the parties hereto with two-thirds of said equity to be distributed to the party of the first part and one-third of said equity to become the property of the party of the second part. It being understood that in the event of such a re-investment in residential real property, the party of the second part will pay on any purchase mortgage involved in such transaction, a sum comparable to the monthly mortgage payments, plus interest, taxes and insurance being presently paid on the premises 0 0 0 for a period of years not exceeding the period of payment remaining under the mortgage obligation then in effect on the 0 * * premises.”

The New York property was sold and two-thirds of the net proceeds from the sale was given to defendant, one-third to plaintiff. Defendant testified to being unable to immediately finance a house. Two and one-half years after the sale of the New York property, defendant was able to purchase a house in Kewanee, Illinois by assuming a mortgage and using the proceeds she received from the sale of the New York property as a down payment. Principal, interest, taxes and insurance premiums on the Illinois property total approximately *150. Similar payments of the New York property were *230. During the time period between the divorce decree in January 1968 and the sale of the New York property in August 1968, plaintiff paid the *230 per month mortgage payments. After the sale of the New York property and distribution of the proceeds, plaintiff ceased making the *230 monthly payments and has refused to contribute further funds towards the purchase of a residence for defendant and children.

In support of her claim for increased child support, defendant testified to a variety of expenses including specific dollar amounts for some items and estimates for others. An examination of the record reveals that the itemized expenses incurred by the defendant total approximately *945 per month for herself and the six children. Defendant also testified that she had no savings and had been unable to accumulate any. Defendant’s primary asset is her residence in Kewanee, Illinois, which was purchased for *16,900 and is subject to a mortgage on- which *12,000 in principal remains to be paid. Defendant’s employment provides her with *114 per week take home pay.

The plaintiff testified that since his divorce from defendant, he has remarried and has four children. Plaintiffs 1976 income tax return was admitted into evidence and reveals gross income of *50,550 and after-tax income. of *44,417. At the time of the divorce decree plaintiff was receiving gross income of *17,700 per year. As concerns plaintiff’s expenses from his second marriage, the only testimony given was that plaintiff’s expenses had increased substantially since the parties were granted the divorce in 1968. For the months of August 1975 and June 1976, plaintiff paid only *350 each month in child support and alimony payments, justifying the unilateral reduction because the children were visiting with him during those time periods.

Defendant raises three issues on appeal. First, defendant claims that under paragraph 9 of the divorce decree, she is entitled to the sum of *230 per month since the time she purchased her present residence, or approximately *20,000. In addition defendant maintains she is entitled to *700 for past due child support and alimony because of plaintiff s failure to pay the full amount of alimony and child support for the months of August 1975 and June 1976. Second, defendant maintains the trial court abused its discretion in denying defendant’s motion for an increase in child support and alimony. Finally, defendant claims she is entitled to attorney’s fees, both for defending plaintiffs petition for change of custody and for pursuing her counterclaim.

As to defendant’s counterclaim for *20,000 under paragraph 9 of the settlement agreement, we interpret that provision to impose upon plaintiff a continuing obligation to pay up to *230 per month for a second residence only if the net proceeds from a sale of the New York property were invested into another residence at the time of the sale. Once the defendant agreed to divide the net proceeds of the sale between herself and plaintiff, choosing not to invest those proceeds into a second home at the time of the sale, she was no longer entitled to have plaintiff make mortgage payments up to *230 per month. Adopting defendant’s position would mean disregarding the clear import of the qualifying phrase, “It be understood that in the event of such a re-investment in residential real property.” The language in the above phrase, “such a re-investment in residential real property,” we think refers to the language “re-invested at the time of the sale into other residential property” set forth in the prior sentence. Hence, unless the net proceeds from the sale of the New York property were invested near in time to the sale, plaintiff was under no duty to continue mortgage payments.

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Bluebook (online)
373 N.E.2d 829, 57 Ill. App. 3d 958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-sullivan-illappct-1978.