APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM C. ATTEN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1972.
This appeal is taken from decree entered in a contested divorce action. Appellant husband contends the trial court erred in finding him guilty of adultery and in ordering all his property divided, or sold and the net proceeds divided, equally between the parties and additionally ordering him to pay periodic alimony.
Concerning grounds for divorce, the decree found that each party's allegations had been proven. The wife's complaint alleged the husband's adultery, and the husband's counterclaim alleged the wife's physical cruelty. Neither party complains in this appeal of the dual factual finding. No useful purpose would be served by reiterating the allegations of each party to their unhappy marital life.
• 1, 2 Defendant contends that the plaintiff failed to meet the burden of proof required for the charge of adultery. While the evidence adduced on this issue is not overwhelming, this court feels that this is an issue of fact for the determination of the trial court. Without reiterating the facts in this regard, sufficeth to say this court will not substitute its opinion for that of the trial court unless such finding is clearly and manifestly against the weight of the evidence. The cases in Illinois in this regard are too numerous to require citation. (See 3 Ill. Digest Appeal and Error, Sec. 1008, 1009.) We find that the finding of the trial court on this issue of adultery was not clearly and palpably erroneous.
We now consider the property division between the parties which was ordered by the trial court in a supplemental decree. Mrs. Overton's complaint alleged special circumstances and equities, asking transfer of legal title to property rightfully and equitably belonging to her.
The parties were married in 1942. Mrs. Overton was employed for a year or two about the time her husband was in military service and saved about $1000. After returning to civilian life, he worked on a farm, did carpentry, and started his own construction work, building a number of houses they occupied and subsequently sold, the title being in joint tenancy. Mr. Overton bought, sold, and subdivided other real estate and worked as a general contractor. About 1961, because of a business transaction exposing him to liability, all real property was placed in a land trust, his wife was sole beneficiary and he had sole power of direction. She knew properties were bought and sold through the trust but did not enter into the business aside from answering her husband's business phone which was in the home, making entries, and balancing sheets for the bookkeeper.
Prior to leaving the marital home in 1968, her only outside employment since 1948 was a period of two months work at a health resort and four or five months at a Jewel Tea store. At the time of the hearing, she was working for a bank earning about $4000 yearly.
Mr. Overton's income tax returns indicated that from 1965 through 1969, his annual average gross income was $2670 and his annual wage income was $1488. He had accumulated substantial property, however, owning real estate appraised at a gross total value of $240,000, some pieces subject to mortgages totaling approximately $71,500, and business equipment which included several trucks and tractors. He had liabilities consisting of outstanding debts aside from the mortgages, accumulated real estate taxes, and attorney fees and costs for the divorce. According to his own exhibit, his net worth was about $158,000.
The trial judge observed that buying, developing, and selling real estate was Mr. Overton's business and that most pieces of real estate were business assets. He considered the matter thoughtfully on the basis of the testimony and various exhibits, offering three alternative suggestions for the agreement of the parties, but none were accepted. He stated he would therefore order that all property remain in the trust until liquidated over a period of two years, that Mr. Overton pay his former wife child support and $90,000 as alimony in gross and settlement of all claims for alimony, without interest, asking the attorneys to prepare the supplement to the decree. In response to counsel's question, the trial judge said this meant Mr. Overton would have to pay all the capital gains, taxes and all the expenses of sale. However, at oral argument before this court, counsel for plaintiff agreed that Mrs. Overton was responsible for capital gains tax on her share of the proceeds from the sale of the various parcels of real estate.
Some months later, the trial judge wrote to the attorneys saying he had again reviewed the matter and was outlining somewhat revised provisions to be incorporated in the supplement to the decree, and the following supplemental decree was entered in pertinent part:
"1. That all of defendant's business equipment, including motor vehicles, motorcycles, boats, etc., are to be appraised by two appraisers, one to be appointed by the plaintiff and one by the defendant, and after the appraisal one-half of the appraised value is to be paid to the plaintiff by the defendant.
2. That all the furniture and liquidated assets, such as, bank accounts, stocks, bonds, etc., if any, are to be equally divided between the parties.
3. That the plaintiff, Grace E. Overton, has an undivided one-half (1/2) interest in all of the real estate owned by the parties, including any real estate held in trust wherein the defendant, Charles E. Overton, is designated the beneficiary. All said real estate ...