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Mcardle v. Mcardle





APPEAL from the Circuit Court of Grundy County; the Hon. ROBERT MALMQUIST, Judge, presiding.


The circuit court of Grundy County awarded plaintiff, Helen McArdle, a divorce on the grounds of desertion. Defendant, Frank McArdle, appeals from that portion of the decree relating solely to financial matters and attorneys' fees.

The parties to this action were married on March 23, 1940, and lived together as husband and wife until their separation on April 5, 1971. No children were born to the parties or adopted by them during the marriage. Shortly after the parties were married, they moved to a 76-acre farm owned by defendant's parents and resided there as tenants. After defendant had left the farm, he directed Wayne Pierard to do the chores and look after the cattle. Since that time, plaintiff has continued to breed the cattle and now has 15 cattle which she owns in partnership with Pierard. The tillable acreage was farmed by Mitchell Corbin as a crop tenant. After the parties separated, defendant inherited the marital farm and certain securities. During the period of separation, defendant paid all real estate taxes on the farm and the necessary inheritance and estate taxes which accrued when he inherited the farm. Prior to the divorce defendant had been operated on for cancer, but was in good health when the divorce was finally granted. Defendant's age does not appear in the record but plaintiff is 56 years old and is in reasonably good health with the exception of high blood pressure. Her sole occupation during the marriage was that of a farm housewife. Though plaintiff is a high school graduate and of at least average intelligence, she was not employed at the time of the divorce, nor does she have any special skills which would assist her in finding employment. Defendant is employed by D. Koerner, Inc., as an operating engineer and earns an average weekly salary of approximately $200 after taxes.

During the years the parties were separated, plaintiff earned from the farm approximately $13,103 in after-tax income. Defendant's after-tax income during the comparable period was approximately $12,000 annually.

The total assets owned by both parties, either jointly or individually, are valued at approximately $180,000, with the major assets being the farm worth approximately $120,000 and securities worth about $30,000. The inheritance, estate, and real estate taxes which defendant paid between 1971 and 1977 total approximately $17,000.

On December 8, 1976, the trial court entered a decree which ordered defendant to pay alimony in gross. The trial court arrived at the award in gross by first computing the present value of the weekly needs of plaintiff as testified to by her, and then reducing this sum by a reasonable amount which plaintiff could expect to receive as wages from employment. Specifically, the trial court awarded plaintiff a life estate in the farm which the trial court valued at $65,300.40. While the method the trial court used to arrive at this amount is not in the record, it appears the value of the life estate was computed by using Illinois inheritance tax tables. The defendant's remainder interest (more properly designated as a reversion) was valued by the trial court at $55,699.40. The court also awarded plaintiff her car, all cattle, household furnishings, certain other personal property, one-half of all securities owned in joint tenancy, sole ownership of a life insurance policy with a cash surrender value of $10,000, $10,000 in cash, and all income from the 1976 crops.

Following the award of alimony, a hearing was conducted on January 6, 1977, on plaintiff's petition for attorney fees for work performed in the trial court. The court awarded plaintiff's attorney $7,000 (in addition to $650 which defendant had previously paid as an advancement for attorney fees) and also ordered defendant to pay the entire amount of court costs. After defendant filed a notice of appeal, plaintiff filed a motion for fees to defend the appeal and support pending appeal. On January 13, 1977, the motion was presented and defendant appeared in person and represented to the court that his attorney was in Waukegan on a prior scheduled case and could not attend. He stated that his attorney had called plaintiff's attorney and requested a short continuance, which was refused, and also that defendant was personally requesting the court to grant a continuance in the absence of his attorney. After some deprecating remarks about defendant's counsel which we find were totally unwarranted, the trial court refused to allow a continuance. On the representations of plaintiff's attorney, defendant was ordered to pay $4,500 in prospective fees to defend the appeal and $100 per week temporary support pending appeal. The appropriate notice of appeal was filed from this order as well.

Defendant then moved to stay all proceedings in the trial court pending appeal. After the trial court refused his motion, defendant moved orally for a stay of seven days to allow him to file a motion with the appellate court for a stay of proceedings. Defendant's oral motion was refused as well. The trial court then ordered defendant to turn over sufficient securities to the sheriff of Grundy County to be sold pursuant to statute to satisfy the money judgment of $21,500. Upon motion to this court, all proceedings in the trial court were stayed pending appeal.

Subsequent to oral arguments before this court, defendant filed a motion to add additional authority which urged the applicability of the new Illinois Marriage and Dissolution of Marriage Act that became effective October 1, 1977 (Pub. Act 80-923). Specifically, the defendant claimed that by virtue of section 801(d) of that Act, resolution of certain issues on appeal regarding disposition of defendant's inherited property was controlled by the new act. Memoranda on the application of this new legislation were requested by the court and duly filed by both parties.

• 1 The first issue we reach is whether the Illinois Marriage and Dissolution of Marriage Act is applicable to this appeal. Section 801(d) of the act provides:

"In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial and any subsequent trial."

Although section 801(d) represents a provision of a uniform law which has been previously adopted in other States, no cases have been cited by the parties which interpret this section. However, the Commissioner's comments to the uniform laws provide some guidance. Those comments state:

"Sub-section (d) provides that this Act does not apply to appeals that had been perfected and thus were pending at its effective date, to new trials ordered prior to its effective date, or to any subsequent appeals or new trials resulting from these pending appeals or new trials. The purpose of this provision is to allow the correction on appeal or in a new trial of errors made in applying the law in effect at the time of the original hearing pursuant to that law. Changing the rules on appeal or at the new trial seems unfair to the party prejudiced by the error." 9 Uniform Laws Annotated § 502, at 514 (1973).

While section 801(d) is not a model of good draftsmanship, we believe it is clear from the foregoing comments that those who initially drafted this section did not intend it to apply to appeals that had been perfected prior to its effective date. Here the appeal was perfected no later than February 1977, a date well in advance of the effective date of this legislation. Even without the benefit of the Commissioner's comments, we would indeed be reluctant to adopt the interpretation of section 801(d) as first urged by defendant. Application of the new act to cases already decided at the trial level would not only be grossly unfair to one of the parties, it would also create an intolerable burden on the judicial system, requiring a court of review to decide issues without the benefits of vigorous advocacy attendant to a hearing on the merits or an initial determination by a trial court. We hold the Illinois Marriage and ...

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