Baker v. Baker ( 1975 )

Mr. JUSTICE ADESKO

delivered the opinion of the court:

This appeal arises from a post-decree divorce proceeding initiated by Walter Baker (defendant) seeking to terminate alimony payments to his former wife, Alberta Baker (plaintiff), pursuant to the original divorce decree. After a hearing in the Circuit Court of Cook County before the Honorable Reuben J. Liffshin, the alimony was terminated as of December 31, 1973, and plaintiff now appeals.

There is really no dispute as to the controlling principle of law which we must consider in our decision on this appeal. As this court stated in Bowman v. Bowman, 11 Ill.App.3d 719, 721, 298 N.E.2d 339:

“Although the trial court clearly has the power to terminate alimony awards, such modifications may not be made arbitrarily or capriciously. The petitioner must show that a substantial change in the circumstances of the parties has taken place since the entry of the decree. Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486; Gregory v. Gregory, 52 Ill.App.2d 262, 268, 202 N.E.2d 139, 142.”

We must then look at the facts as presented to this court in the instant appeal to see if there was substantial change of circumstances of the parties such as contemplated above.

Plaintiff and defendant were married on August 23, 1936. In August of 1948, their marriage of 12 years ended in divorce. There was one child of the marriage and defendant was ordered to pay $42 per week for alimony and child support. This amount was reduced to $37.50 following a hearing in 1964.

Considering the record before us and the briefs and arguments of both parties before this court, it is clear that the length of time defendant had been paying the weekly award (some 25 years) and his reduced income due to retirement were the deciding factors in terminating the award. The trial judge in the proceedings below made the following statements:

“I’ll tell you the truth gentlemen, and ladies. Under the Tan case, I should abate alimony after he’s been paying it so many years on a twelve-year marriage. I should abate it because the Tan case is even longer because the man has been paying alimony for something like eighteen or twenty years on a marriage of nine or ten years. But I’m going to order him to comply with this order until the 31st day of December at which time alimony will abate.

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I would terminate it even on a $20,000 a year income on the Tan case.

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I’m just telling you what I believe is the law under the Tan ruling and I’m bound by it.

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In the event he does retire in December the abatement of the alimony should take effect. If he retires on that date, then the abatement of the alimony should take effect. If not, there is to be a further hearing by the Court.”

In the court’s decision in Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486, we held that the length of time and amount of alimony already paid out could be taken into account as one factor, along with several others, which considered as a whole might constitute a substantial change of circumstances sufficient to warrant modification or termination of the alimony. (3 Ill.App.3d 671, 675. See also Borowitz v. Borowitz, 19 Ill. App.3d 176, 181, 311 N.E.2d 292.) The decision to modify or terminate alimony rests within the sound discretion of the trial court (Scalfaro v. Scalfaro, 123 Ill.App.2d 23, 259 N.E.2d 644), and the holding of Tan in no way restricts this discretion. In the instant case the trial judge erred when he terminated the payment of alimony believing that he did not have the discretion to do otherwise as a result of the above decision. The order terminating the alimony must therefore be reversed.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

DIERINGER, P. J., concurs.