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In Re Marriage of Lee

OPINION FILED NOVEMBER 27, 1979.

IN RE MARRIAGE OF SANG LEE, PETITIONER-APPELLEE, AND KWAN MOH LEE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

This appeal concerns the disposition of property and maintenance provisions of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 through 802) which became effective October 1, 1977. The issues presented for review are: (1) whether the trial court's disposition of property was an abuse of discretion and against the manifest weight of the evidence; and (2) whether the trial court's maintenance order was an abuse of discretion.

For the reasons hereinafter set forth, we affirm the judgment of the circuit court of Cook County.

Prior to October 1, 1977 Sang Lee (hereinafter referred to as the wife), filed a complaint for divorce against Kwan Moh Lee (hereinafter referred to as the husband) under the old Illinois Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 1 through 21.4, repealed eff. Oct. 1, 1977). On May 25, 1978, judgment was entered dissolving their marriage and dividing the property of the parties in a manner purporting to follow the terms of the new Marriage and Dissolution of Marriage Act. The husband appeals, complaining only of the disposition of property and maintenance portions of the judgment. The parties do not dispute that the trial court applied the proper act in reaching the decision.

The parties, both 42 years of age, were married 17 years and have three children ranging in age from 13 years to 18 years. The marital assets and the trial court's disposition thereof were as follows:

1. An apartment building. In 1971 the parties purchased as joint tenants an apartment building for $65,000. The down payment of $10,000 was comprised of the parties' joint savings; the remaining $55,000 was mortgaged. Gross monthly rental income equals $815. Monthly payments for principal and interest on the mortgage, taxes and insurance total $615. In addition, all utilities for the entire building are paid by the owners; and monthly expenditures for maintenance and repairs equal approximately $100. Prior to their separation, the parties resided in one of the apartments. Although no professional appraisal was presented to the trial court, the husband testified that the present value of the apartment building is $60,000. The husband also testified that the building is subject to a mortgage of approximately $40,000.

The trial court preserved the husband's one-half interest in the building but enjoined him from filing an action for partition until the youngest child reaches majority. The wife was awarded the right to reside in one of the apartments without any obligations to pay rent. The wife was awarded the right to collect all rents and was made liable for all expenses incurred, notwithstanding that the expenses may exceed the income of the property. In addition, any payments made by the wife toward the principal balance of the mortgage are credited to both the husband and the wife.

2. A cleaning plant. In 1974 the parties purchased, in the husband's name, a cleaning plant for $67,000. The purchase price includes the plant, equipment and good will and was paid in the following manner: a down payment of $22,000 accumulated from the parties' joint savings; a $30,000 loan from the North Shore National Bank, which is now satisfied in full; a $7,000 loan from the sellers, which is now satisfied in full; and an $8,000 loan from the wife's brother, which is now satisfied in full. A 10-year lease on the property was obtained at the time of purchase. Although no professional appraisal was presented to the trial court, the husband testified that the present value of the cleaning plant is $60,000. The 1976 net income from the cleaning plant was approximately $21,000 and the 1977 net income was approximately $19,000.

The trial court awarded the cleaning plant to the wife, but as an equalization factor ordered the wife to pay to the husband the sum of $15,600, payable at the rate of $50 per week. The trial court also found that the income to be derived by the wife from the operation of the cleaning plant was sufficient to adequately support the minor children of the parties and therefore ordered that the support be provided therefrom.

3. A discount store. In September 1975 the parties purchased a discount store for $33,000. Although the record manifests confusion, this property appears to have been purchased in the name of the wife. The purchase price was paid in the following manner: a down payment of $23,000 accumulated from the parties' joint savings (which monies were primarily earned from the cleaning plant); and a $10,000 mortgage which is now satisfied in full. The inventory at the time of purchase was $26,000 and at the time of trial had decreased to $15,000. Although no professional appraisal was presented to the trial court, the husband testified that the present value of the discount store is $30,000. The wife testified that once the mortgage was paid in full (August 1978), the net monthly income from the store would be approximately $640.

The trial court awarded the discount store to the husband.

4. In addition to the above properties, the husband owns 50 shares of Greyhound Computer stock which he acquired on July 29, 1970, and 50 shares of Technitrol stock which he acquired on August 11, 1970. The trial court awarded these shares of stock to the husband. The husband also owns an automobile which the trial court awarded to him. The husband personally guaranteed a loan of $5,000 from North Shore Bank, and the court ordered that he be held liable therefor. The parties also own furniture and furnishings which the trial court awarded to the wife. The trial court ordered that the wife be held liable for any outstanding balances due and owing on said furniture.

I.

• 1, 2 We first consider whether the trial court abused its discretion in dividing the property as described above. We start with the premise that a circuit court judge's resolution of property division is fettered only by the range of reason and that his judgment will not be disturbed in the absence of an abuse of discretion. It is a well-established rule that a reviewing court is not justified in substituting its discretion for that of the trial court. (Elliott v. Nordlof (1967), 83 Ill. App.2d 279, 284, 227 N.E.2d 547.) In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted. This is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. It would seem that if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

• 3 The husband contends that the trial court abused its discretion because it exhibited impatience throughout the proceedings and precluded counsel from eliciting testimony that pertained to the contributions of the parties to the acquisition of the marital assets. We note that although the husband argues that he was prevented from introducing evidence, the record reflects an absence of any proffered evidence or offer of proof. Counsel cannot be heard to complain in this court of the trial court's refusal to admit evidence which counsel never proffered to the trial court. (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1974), 21 Ill. App.3d 510, 517, 316 N.E.2d 255.) It should also be noted from the outset that the contributions of the parties to the acquisition of the marital assets is only one of the 10 factors which section 503(c) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)) commands the trial court to consider. *fn1

• 4 The record confirms that the trial court did not exclude from consideration for property division purposes the contributions of each party to the acquisition of the marital assets. Rather, the trial court concluded, after considering all the evidence, that the acquisition of the marital assets came from the joint contributions of the parties, that is, from both the husband's and the wife's earnings. Although the trial court did not place a dollar value on the contributions of each party to acquisition of the marital estate, such specific finding is not required by the statute nor is it, in the opinion of this court, a prerequisite to the validity of property division orders. The trial court's conclusion was based upon the following evidence adduced at trial:

The wife testified that prior to their marriage in 1961, both parties had received their bachelor of science degrees in Korea. The husband's degree was in mechanical engineering, and the wife's degree was in English. At the time of their marriage, the wife was employed as a secretary and the husband as a high school teacher. In September 1962 the husband came to the United States to pursue a master of science degree in engineering at Clemson University. At this time one child had already been born of the marriage, and the wife was six months pregnant with their second child. The wife remained in Korea where she was employed as a typist and translator for the Asiatic Research Center. From the time of the husband's departure for the United States in September 1962 until the wife came to the United States in March 1964, the wife supported herself and the children and also sent money to the husband.

Upon her arrival in the United States, the wife worked in New York, first as a hostess and then as a teletype setter. During this time she supported herself, sent money to Korea for the children, and sent money to her husband in South Carolina. The parties did not reside together except during the summer months of 1964 and 1965 when the husband joined the wife in New York for his summer vacation from Clemson University. In 1966 the wife joined the husband in South Carolina where she worked as a teletype setter, earning $70 per week, until their third child was born. During this time the husband earned approximately $1,000 per month. In November 1966 the wife and the third child returned to Korea. In March 1967 the wife joined the husband in Chicago. At that time he was unemployed and she became employed as a teletype setter earning $130 per week.

In 1968 the husband enrolled at Northwestern University to pursue a doctoral degree in engineering. He graduated therefrom in 1971. During this time he gave the wife $200 per month. The earnings of the wife from 1968 until the acquisition of the cleaning plant in 1974 were as follows: 1968, $8,444.19; 1969, $10,319.39; 1970, $13,620.41; 1971, $13,742.94; 1972, $15,321.03; 1973, $14,985.90; 1974, $1,946. The wife then worked full time at the cleaning plant until the purchase of the discount store in September 1975. Thereafter she worked full time at the discount store.

The husband testified that in September 1962 he came to the United States to pursue a master of science degree in engineering at Clemson University. The wife remained in Korea where she was employed as a secretary. When the husband departed for the United States, he gave the wife $1,500. The husband received his master of science degree in engineering from Clemson University in December 1965. During the years 1968 through 1971 the husband attended Northwestern University and received $300 per month as a research assistant. He gave this money to the wife. During the summer of 1970 the husband earned $8,000 as an engineer. In August 1971 the husband obtained his doctoral degree in engineering from Northwestern University. From 1971 until 1974 the husband was employed by Arthur McKee Co., his first year earning $7,000 and his last year earning $18,600. From October 1974 until September 1975 the husband was employed as an engineer by McDonald Engineering, earning $19,500. At this time he was also working part time at the cleaning plant and performing janitorial tasks at the apartment building owned by the parties. In September 1975 the husband resigned from his position at McDonald Engineering and worked full time at the discount store for two months. Thereafter he worked full time at the cleaning plant.

The record clearly indicates that the trial court did consider the contributions of the parties to the acquisition of the marital assets. In fact, prior to announcing its decision, the trial court remarked that its decision was reached only "after the appraisal of all the evidence adduced before the court, much of which is conflicting. * * *" Section 503(c)(1) does not require the court to ascertain the contributions of the parties with mathematical exactitude or certitude. Nor does section 503(c)(1) require the property to be divided in exact mathematical proportion to the contributions of the parties. We conclude that sufficient evidence of the contributions of the parties to the acquisition of the marital assets was adduced at trial and was considered by the trial court in distributing the marital property.

The husband contends that the trial court exhibited impatience throughout the entire proceedings. We disagree. We have closely reviewed the entire record and each of the 19 instances which the husband designates as an exhibition of flagrant impatience and do not agree that such a characterization is warranted. For example, the husband cites the following remark as an instance of the court's flagrant impatience:

"The clock is running for both of you. * * * You can stipulate what it costs, that is a very simple stipulation. You guys make it difficult for yourselves. You make it difficult for both of you."

However, the husband has taken the court's remark out of context. The context for this remark follows:

"Mr. Blum [the wife's attorney]: Now, when was that purchased?

A [the wife]: That was two years ago, in October.

Q: Will you stipulate to the purchase price to save some time, that it was purchased for thirty thousand dollars?

Mr. Briskman [the husband's attorney]: Thirty-three thousand dollars.

Mr. Blum: Was it thirty-three thousand dollars?

A: That I don't know because he never showed me.

Mr. Blum: Between thirty thousand and thirty-three thousand?

A: He never show me.

Mr. Blum: My records show, from what I have been advised by Mr. Briskman, that the down payment was twenty thousand dollars. Do you have a Closing Statement, and if you have some records, I would like to see them so that we can clarify it ...


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