IN RE MARRIAGE OF CESARETTINo. 2-89-1205.
561 N.E.2d 306 (1990)
203 Ill. App.3d 347
149 Ill.Dec. 28
In re MARRIAGE OF Sherry CESARETTI, Petitioner-Appellee, and
Daryl Cesaretti, Respondent-Appellant.
Daryl Cesaretti, Respondent-Appellant.
Appellate Court of Illinois, Second District.
September 21, 1990.
Michael T. Smith, Law Offices of Michael T. Smith, Hanover Park, Ill., for Daryl Cesaretti.
Elizabeth L. Krueger P.C., Wheaton, Ill., for Sherry Cesaretti.
Justice INGLIS delivered the opinion of the court:
Respondent, Daryl Cesaretti, appeals from the judgment entered by the trial court dissolving the marriage between himself and petitioner, Sherry Cesaretti. On appeal, Daryl raises the following issues: (1) whether the trial court's order granting Daryl temporary custody of the couple's minor child must be interpreted as an order granting him permanent custody; (2) whether the trial court's division of the savings account Daryl had with his employer was against the manifest weight of the evidence; (3) whether the trial court erred in awarding Sherry $3,000 as an adjustment to the marital debts; and (4) whether the trial court erred in awarding Sherry $75 per week for the support of the couple's minor child. We affirm in part, reverse in part and remand.
Daryl and Sherry Cesaretti were married on October 26, 1984. Two months later, Sherry got pregnant, and on September 2, 1985, a daughter, Jaymie, was born to the marriage. On January 21, 1986, Sherry filed a petition for dissolution of marriage. At that time, she was 24 years of age and Daryl was 29. Sherry alleged that she and Daryl had stopped living together through the sole fault of Daryl. Sherry claimed that Daryl had been guilty of extreme and repeated acts of physical cruelty. Sherry requested, among other things, that she be awarded custody of Jaymie and support for her.
Daryl responded on February 11, 1986, by filing a counterpetition for dissolution of marriage. In the counterpetition, Daryl alleged that during the time the parties lived together as husband and wife, he always conducted himself as a good, true, faithful and affectionate husband. He claimed that Sherry conducted herself with extreme and repeated acts of mental abuse by embarrassing and intimidating him through her alcoholism, infidelity and continued association with known drug users. Daryl requested that he be awarded the sole care, custody and control of their daughter. He also sought temporary and permanent support for the child.
Thereafter, Daryl moved back in with Sherry until September 1986 when Sherry moved out. On October 8, 1986, Daryl filed a petition for temporary custody. On October 9, 1986, a conciliation order was filed referring both parties to a psychologist for counseling on the issue of custody and/or visitation.
On June 6, 1988, a hearing was held on Daryl's petition for temporary custody. At the hearing, it was revealed that Daryl works for the United Parcel Service in the early morning hours and for the Village of Schaumburg and Rolling Meadows part time as a meter reader. Sherry works part time as a waitress. Since the couple's separation, Sherry has had another child, Maria, with her boyfriend, Salvadore Medina. Maria was eight months old at the time of the hearing. Sherry testified that Salvadore does not live with her, but they are intending to get married. Prior to the hearing, Sherry had custody of Jaymie, and Daryl was paying her $75 a week. At the conclusion of the hearing, the trial judge ruled that custody should temporarily remain with Sherry. Daryl was granted visitation from Friday 3 p.m. to Monday 3 p.m. and the $75 a week for support was ordered
On July 5, 1989, trial on the parties' petitions for dissolution of marriage commenced and was not concluded until July 21, 1989. At the hearing it was revealed that Daryl is a born-again Christian and has allegedly given up his prior use of drugs and alcohol. Daryl alleged, however, that Sherry did not similarly give up her use of the substances and that apparently caused some friction in their relationship. In contrast, Sherry claims that Daryl himself did not give up his use of the substances, and the cause of the friction was his rigid religious beliefs, physical abuse, and jealousy.
Daryl claimed that after the parties separated, Sherry's life became very unstable. She was evicted from her apartment twice and had difficulty maintaining employment. Sherry argued that her poor employment record was due in part to the fact that Daryl would harass her at work.
Daryl works early morning hours at his job with United Parcel Service and has since quit his job for the Village of Schaumburg. Because of his hours, his mother baby-sits Jaymie while Daryl is working. Sherry claimed that Daryl and his mother have prevented her from seeing Jaymie. Sherry recalled one incident in September 1988 when the police were called to escort her to Daryl's mother's house to pick up Jaymie.
Daryl maintained that Sherry is allowed to see the child whenever she wants; however, he claimed that that is not very often. Daryl recalled a confrontation that occurred between him and Sherry's boyfriend, Salvadore, in April 1988 when Daryl went to pick up Jaymie from Sherry's apartment. The police were called, and Daryl was not permitted to take the child. Sherry claims that the reason Daryl was not permitted to take the child was because Jaymie was sick.
Sherry testified that she wants her two daughters to grow up together as a family. She admitted that Salvadore physically abused her, and as a result they are now separated, and he is seeking counseling.
On September 11, 1989, the trial judge announced her decision dissolving the marriage. Daryl was awarded temporary custody of Jaymie for six months at which time custody was to be reviewed. The judge stated that during that time Jaymie was to spend approximately equal time with each parent and set forth a schedule indicating so. Both parties were ordered to attend counseling. Sherry was awarded $750 representing one-half of a savings account Daryl had with United Parcel Service. In addition, Daryl was ordered to pay Sherry $3,000 as and for an adjustment to the marital debts, payable over an 18-month period in equal monthly payments. Daryl was also ordered to pay Sherry $75 per week for the support of Jaymie. A written judgment incorporating the judge's rulings was filed October 17, 1989. On that same day, Daryl filed a motion to reconsider, which was denied. Thereafter, Daryl filed a timely notice of appeal. Sherry filed a motion to dismiss the appeal for lack of jurisdiction, and Daryl filed objections to the motion. This court ordered both the motion and objections to be taken with the case.
Thus, before we consider the merits of the appeal, we will first address the issue of whether this court has jurisdiction. Sherry contends that because the judgment for dissolution provided for temporary custody to be reviewed in six months, it was not a final and appealable judgment. Sherry cites to In re Marriage of Ryan (1989),
We note that Sherry has not filed an appellee's brief. Nevertheless, this court will decide the merits of this appeal because the record is clear and the claimed errors are such that the court can easily decide them without the aid of the appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976),
We first address Daryl's contention that the trial court intended sole and permanent custody to be placed with him. We find no support in the record for this contention. In fact, after noting both parties' faults, the trial judge specifically stated that she was intending to split the custody as close to 50% with each parent as possible. She explained that the purpose of the temporary custody was essentially to see whether the parties could conform to the court's order, which she had found not to be the case in the past. The judge commented that "the question of legal custody is only for the sake of having one person at this time to make certain decisions, and it's because of the instability at the present time of Sherry's life. And when that is straightened out, then the Court can address it." In the dissolution judgment, the trial court further held that "neither parent has demonstrated the ability and maturity to provide for the total care of the child and insure that the best interest of the minor child is served." Thus, a review of the record indicates that the trial court clearly did not intend for Daryl to have sole, permanent custody of Jaymie.
Because we find that the trial court awarded Daryl temporary custody of Jaymie to be reviewed in six months, we must now consider Daryl's contention that in making such a temporary order the trial court committed error. In Carroll v. Carroll (1978),
In the case at bar, the custody order was, in fact, expressly made conditional upon the stability of Sherry's life, and, thus, we find that it was a temporary order but final for purposes of review. In making the order temporary, the trial judge clearly circumvented the effect of section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1989, ch. 40, par. 610), which provides that custody awards are generally not modifiable for two years and then are only modified by use of the more stringent standards set forth in section 610(b) (Ill.Rev.Stat.1989, ch. 40, pars. 610(a), (b); In re Marriage of Gibbons (1987),
Next, Daryl argues that the trial court's decision granting Sherry $750 from his savings account is against the manifest weight of the evidence. In his brief, Daryl admits that $750 represents one-half of an account he kept with his employer at United Parcel Service. He further admits that this money was earned during the marriage, but after the parties' separation, and that $800 of the $1,500 account was previously withdrawn by him. Daryl contends that there was no argument or evidence set forth showing that Sherry was entitled to the sum awarded and that because the trial court did not make any factual findings in support of its ruling, the reviewing court is left to guess as to the basis of its judgment, which Daryl argues is improper. Hanaman v. Davis (1959),
A review of the record, however, reveals that the trial court did indeed make factual findings, and they were basically those set forth by Daryl in his appellant's brief. In addition, the record indicates that the savings account to which the trial court and Daryl referred is actually a "thrift plan" Daryl has set up with United Parcel Service. Under section 503(b) of the Illinois Marriage and Dissolution of Marriage Act, all property acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property. (Ill.Rev.Stat.1989, ch. 40, par. 503(b).) In the instant case, Daryl admitted that the $1,500 was earned prior to the judgment of dissolution. He has submitted no argument as to why the money should not be considered marital property or that it was improperly divided. It is well settled that the distribution of marital property rests with the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. (In re Marriage of Dall (1989),
In support, Daryl cites to LaRue v. LaRue (1950),
An analysis of the facts in the case at bar indicates that this case is clearly distinguishable from LaRue. In LaRue, the wife was named as a creditor and was notified of the bankruptcy proceedings which occurred subsequent to the divorce. In contrast, Daryl declared bankruptcy while the parties were still married, yet Sherry was not informed, nor was she named as a creditor. Thus, the debts from the marriage remained even though Daryl was discharged from liability to the creditors of those debts. The $3,000 awarded to Sherry was compensation for her liability. It is well settled that marital debts as well as marital assets must be distributed equitably. (In re Marriage of Goforth (1984),
Lastly, Daryl contends that the trial court erred in requiring him to continue paying child support when he was awarded custody of their child. Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act provides that "[i]n a proceeding for dissolution of marriage * * * the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support." (Ill.Rev.Stat. 1989, ch. 40, par. 505(a).) The necessity for child support, as well as the amount of the award, are decisions within the sound discretion of the trial court and will not be set aside unless found to be contrary to the manifest weight of the evidence. In re Marriage of Reyna (1979),
In arguing that the trial court erred in its award, Daryl contends that once legal and physical custody is placed in one parent, that custodial parent has no obligation to pay child support to the noncustodial parent. (Shoff v. Shoff (1989),
We find the principle announced in Shoff to be inapplicable to the case at bar. Here, the trial court awarded Daryl temporary custody of Jaymie, but specifically stated that she shall spend approximately equal time with each parent as indicated by a schedule set forth in the decision. Because of the equal amount of time spent with the child, and hence the relative financial contribution, we do not find the trial court's award of support to be manifestly erroneous.
In addition, we note the disparity in the financial conditions of the parties. While the financial responsibility for the support of a child is the joint obligation of the parents, it is only equitable that the parent with the disproportionately greater income should bear a greater share of the costs of support. (In re Marriage of Rogliano (1990),
For the above-stated reasons, we affirm the judgment of the trial court and remand the cause for a decision on the issue of permanent custody.
Affirmed in part; reversed in part and remanded.
McLAREN and GEIGER, JJ., concur.
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