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Stotlar v. Stotlar

OPINION FILED JULY 8, 1977.

GENE STOTLAR, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE,

v.

NADA STOTLAR, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Perry County; the Hon. CARL H. BECKER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff-counterdefendant, Dr. Gene Stotlar, appeals from certain property awards made by the circuit court of Perry County pursuant to its entry of a divorce decree in favor of the defendant-counterplaintiff, Mrs. Nada Stotlar. Mrs. Stotlar pursues a cross-appeal from the court's award of alimony and its refusal to award her attorney's fees.

Dr. Stotlar initiated the suit below by filing a complaint for divorce. Mrs. Stotlar answered his complaint and counterclaimed for divorce on the grounds of extreme and repeated mental cruelty. Mrs. Stotlar subsequently filed an amended counterclaim based upon the same grounds. In a bench trial conducted in the circuit court of Perry County, it was stipulated that Dr. Stotlar was dismissing his complaint and that the matter would be heard on Mrs. Stotlar's amended counterclaim and Dr. Stotlar's answer thereto. The trial court on July 8, 1975, entered a decree of divorce on Mrs. Stotlar's counterclaim and took all other matters under advisement for decision at a later date, after submission by the parties of written briefs and arguments.

The court entered a divorce decree on November 20, 1975, which disposed of the matters it had formerly reserved. By that decree, Mrs. Stotlar was awarded: (1) the marital home and premises which had been held in joint tenancy; (2) all shares of stock titled in her name; (3) a 1972 Thunderbird automobile and a 1972 Beachcraft Bonanza airplane; (4) several life insurance policies of which she was the owner; (5) one-half of the shares of stock in Dr. Stotlar's name and one-half of the bearer bonds in his possession less stocks and bonds of his choice valued at $17,500; (6) household furniture and clothing in her possession; (7) the custody of a minor child, Bill Stotlar; (8) $200 per month child support until Bill Stotlar reached 18 years of age; (9) one-fourth of the estimated income tax paid by Dr. Stotlar in 1975, for use on her 1975 tax return; and (10) $1,400 per month permanent alimony. The court also ordered each party to pay the balance of his or her respective attorney's fees and debts, and found that Mrs. Stotlar was the owner of a 1973 Cadillac titled in the name of her husband's medical partnership. Since the contentions in this appeal relate only to the propriety of the awards to Mrs. Stotlar, we shall not detail the substantial assets which were assigned to Dr. Stotlar by the decree.

Mrs. Stotlar filed a post-trial motion on December 18, 1975. On April 1, 1976, subsequent to a court-approved withdrawal of counsel, Dr. Stotlar, through his new attorney, filed a post-trial motion pursuant to section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.3). The trial court on April 22, 1976, granted a motion made by Mrs. Stotlar to strike or dismiss his motion because it was not timely filed and entered an order dismissing Dr. Stotlar's post-trial motion. The court also entered an order on the same day disposing of the points raised in Mrs. Stotlar's post-trial motion. That order amended certain provisions of the November decree in order to make them more clear or factually correct; it also added an additional finding and an order on matters not previously brought to the court's attention.

The record reveals that the instant divorce decree dissolved a marriage of 23 years duration. When the parties were first married, Mrs. Stotlar was teaching school and Dr. Stotlar was completing his medical internship at a St. Louis hospital. Dr. Stotlar was thereafter inducted into the military and served in Europe until 1955. The first of two children, Richard, was born in 1954 while the couple was in Germany. A second son, Bill, was born in 1958.

Since the Stotlars' return from Germany in 1955, Dr. Stotlar has been engaged in practicing medicine in Pinckneyville, Illinois in a partnership designated "Medical Arts." Dr. Stotlar's partners were his brother, Dr. James Stotlar, and Dr. Gilbert Edwards. Dr. Edwards retired around 1965 and Dr. James Stotlar died in May 1975. Dr. Stotlar was therefore engaged as a sole practitioner at the time of the trial. Dr. Stotlar's income for the three years immediately preceding trial exceeded $100,000 per year; however, he testified that he anticipated a substantial drop in income in the future due to his brother's death. Mrs. Stotlar's income over this same period consisted of remuneration for substitute teaching which she engaged in on the average of two or three days each year, and yearly dividends earned on stock titled in her name, estimated at between $1200 and $2000.

Substantially all of the income of both parties was placed in their joint checking account. The parties acquired considerable property, both real and personal, over the course of their marriage. Most of this property, whether in Dr. Stotlar or Mrs. Stotlar's name, was purchased by means of the joint checking account. Additional facts will be supplied whenever necessary to aid the resolution of the contentions on appeal.

More specifically, Dr. Stotlar contends that the trial court erred in: (1) finding that Mrs. Stotlar had "special equities" in certain stocks, bonds and real estate owned by Dr. Stotlar; (2) allocating one-fourth of Dr. Stotlar's estimated income tax payments for 1975 to Mrs. Stotlar; (3) awarding Mrs. Stotlar a one-half interest in certain Air Illinois stock; and (4) striking his post-trial motion made pursuant to section 68.3 of the Civil Practice Act.

Mrs. Stotlar contends that the trial court's denial of her request for attorney's fees was an abuse of discretion and that the trial court's periodic alimony award was insufficient and should be increased.

• 1 Dr. Stotlar contends that the trial court erred in dismissing his post-trial motion because it was not timely filed. His motion of April 1, 1976, clearly indicated that it was made pursuant to section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.3). Section 68.3, at the time pertinent to this appeal, stated that any party may file a motion, "* * * within 30 days after the entry of the decree or judgment or within any further time the court may allow within the 30 days or any extensions thereof * * *." Dr. Stotlar's motion, which was not subject to any extensions of time by the court, was filed approximately 130 days after entry of the divorce decree and, therefore, not timely under the express terms of section 68.3. Dr. Stotlar argues, however, that the trial court had discretionary power, which it abused, to allow his motion by considering it "amendatory" or "supplementary" to the timely post-trial motion of Mrs. Stotlar. He directs our attention to two cases as authority for this proposition, City of Chicago v. Greene, 47 Ill.2d 30, 264 N.E.2d 163, and City of DeKalb v. Anderson, 22 Ill. App.3d 40, 316 N.E.2d 653. We have examined the aforementioned cases and find that they do not support his argument. Those cases do not suggest that a party may choose to ignore the time provision of section 68.3 and rely upon the diligence of his opposing party in complying with the rule to provide him with extra time to consider grounds for post-trial relief by filing a motion which is "amendatory" or "supplementary" to his adversary's motion. In both of these cases, the party whose motion, made after the 30-day period, was considered as an amendment or supplement had filed a timely post-trial motion in the first instance, and the subsequent motion was considered as amending his own prior motion. This is certainly not the situation here. Consequently, we find that Dr. Stotlar's post-trial motion was properly denied as not being timely filed.

Dr. Stotlar also contends that the trial court erred in awarding one-half of the stocks titled in his name and one-half of the bearer bonds in his possession to Mrs. Stotlar since she did not prove that this property equitably belonged to her. He also challenges the court's finding that Mrs. Stotlar had "special equities" amounting to one-half ownership of two parcels of real estate of which he was the owner of record.

• 2, 3 In determining the propriety of the divorce decree's property disposition, we must remember that the trial court's authority in this regard is based upon the powers conferred by our Divorce Act rather than upon general equity powers. (Debrey v. Debrey, 132 Ill. App.2d 1072, 270 N.E.2d 43.) Only two sections of the Divorce Act allow the trial court to order a conveyance of property or an interest therein to one spouse which ostensibly belongs to the other. These sections are sections 17 and 18 (Ill. Rev. Stat. 1975, ch. 40, pars. 18 and 19). We shall have occasion to discuss section 18 later when addressing other contentions of Dr. Stotlar, but we now direct our attention to section 17 of the Act (Ill. Rev. Stat. 1975, ch. 40, par. 18), which provides:

"Whenever a divorce decree is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled ...


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