APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The petitioner (wife) appeals from a judgment in a suit for divorce filed on August 13, 1975. No objection is made to the finding that the marriage should be dissolved; the sole objections are to the award of property and maintenance. Specifically, the wife contends: (1) that the court erred in ordering the sale of marital property when neither party had asked for partition; (2) that the court erred in failing to consider the husband's contingent right to a police pension upon retirement to be marital property; (3) that the award of temporary maintenance is too small and for too short a period.
We agree that the court erred and reverse and remand the case for further proceedings.
1 The sole real estate owned by the parties consists of two lots in Wisconsin. One was held in the names of both parties, the other was listed solely in the husband's name. The court, after considering all of the evidence including who had furnished the money for the lots, ruled that both lots were in fact joint property owned in equal shares. The husband has made no objection to this finding, and thus the finding that the wife is entitled to a one-half interest in the property is final. *fn1 But the court went further than merely declaring that the Wisconsin property was owned jointly in equal shares. Despite the fact that neither party had prayed for partition, it ordered that the property be sold and the net proceeds be divided in equal shares between the parties. This was error. As the court stated in Blazina v. Blazina (1976), 42 Ill. App.3d 159, 163-64, 356 N.E.2d 164, 168:
"Neither party hereto prayed for a partition or for a sale of the jointly owned marital home. This court's holding in Nugent v. Nugent, 9 Ill. App.3d 702, clearly outlined the circumstances under which a trial court can order a sale of a jointly owned marital home. There is no authority to order such a sale except as provided by statute. (Fowler v. Fowler, 26 Ill. App.3d 313, 315; Persico v. Persico, 409 Ill. 608, 611.) Since the Nugent case was not reported in full we quote extensively:
`We find no basis for the court's order of sale of the jointly held property here. Section 20 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 21) is inapplicable as it authorizes a sale only to enforce the payment of alimony where it is decreed to be a lien on the property. Nor can the sale be classified as the conveyance of equitable title from one party to another under Section 17 (Ill. Rev. Stat. 1969, ch. 40, par. 18) or the conveyance of property as a settlement in lieu of alimony under Section 18 (Ill. Rev. Stat. 1969, ch. 40, par. 19). Rather, the ordering of the sale under the circumstances here was in the nature of a partition (Ill. Rev. Stat. 1969, ch. 40, par. 17(a)). However, neither party prayed for a partition of the property and each claimed the entire interest in it. The court was therefore without jurisdiction to order the sale of this property. This provision of the decree is reversed.'"
See also Pettit v. Pettit (1978), 60 Ill. App.3d 375, 376 N.E.2d 782; Maggert v. Maggert (1978), 65 Ill. App.3d 758, 382 N.E.2d 701, appeal denied (1979), 74 Ill.2d 586.
Blazina was decided under the former divorce act. On October 1, 1977, the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) became effective. Section 801(b) (Ill. Rev. Stat. 1977, ch. 40, par. 801(b)), which was held constitutional in Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 376 N.E.2d 1382, provides that the act applies to all pending actions and proceedings commenced prior to the effective date with respect to issues on which a judgment has not been entered. It further provides that evidence adduced after the effective date of the act shall be in compliance with it. The judgment in this case dissolving the marriage and dividing the property was entered on March 2, 1978, five months after the new act became effective. Accordingly, it is clear that the new act controls the rights of the parties. In re Marriage of Olsher (1979), 78 Ill. App.3d 627, 397 N.E.2d 488.
Section 503 of the new act (Ill. Rev. Stat. 1977, ch. 40, par. 503) permits the court to allocate marital property, regardless of who holds title, to each spouse in just proportion after considering all relevant factors including, inter alia, the contributions of the spouse, the economic circumstances of the spouses, age, health, occupation, other income and whether the apportionment is in lieu of or in addition to maintenance. But as we stated, the trial court's action was more than the simple allocation of property or an award to the wife in lieu of maintenance. Rather, as in Blazina, the order of the sale of the property with the proceeds to be divided between the parties was in the nature of a partition. Section 17(a) of the old Divorce Act was incorporated into the new act as section 514 (Ill. Rev. Stat. 1977, ch. 40, par. 514), with practically no change in wording. It provides, as it provided before, that the court may upon petition of one of the parties partition real estate. Particularly in light of the fact that the legislature, had it disapproved of the ruling in Blazina, could have changed the wording of the section when it adopted the new act, we conclude that the doctrine set forth in Nugent, Blazina, Pettit and Maggert is still valid.
2 The wife's next contention is that the court erred in failing to treat the defendant's pension as marital property and award her a just share. The record discloses that the husband has worked in the Chicago police force throughout the marriage. The wife also worked throughout most of the marriage and at one point claimed she had helped put him through police school. In less than four years the husband can retire from the police force and draw a pension. The court in the divorce decree did not determine the parties' rights to the pension. This we believe to be error.
The husband seeks to uphold the court's failure on two grounds: (1) he claims that the divorce decree was actually drawn up by the plaintiff and (2) that Illinois law, as represented by Carterfield v. Carterfield (1976), 39 Ill. App.3d 525, 350 N.E.2d 491, and Busby v. Busby (1973), 11 Ill. App.3d 426, 296 N.E.2d 585, prevents the wife from sharing in the pension in the absence of any special equities.
As to the first contention, the record does not indicate that the wife's attorney actually drafted the court order and we are not permitted to accept an attorney's statement in his brief as proof of facts not shown in the record. (2 Ill. L. & Prac. Appeal and Error § 515 (1953).) It is clear from the record that the divorce decree was not reached by settlement of the parties and that the parties did not waive their right of appeal. That the wife claimed to have certain rights in her husband's pension is clearly disclosed in a memorandum which was submitted by the wife to the trial court between the time it announced the findings and the time it rendered its judgment. Also see In re Marriage of Olsher (1979), 78 Ill. App.3d 627, 397 N.E.2d 488.
Second, neither case cited by the husband supports his contention that Illinois law does not permit a spouse to claim any rights in the other spouse's pension in the absence of special equities. Carterfield did not involve pension benefits but an inheritance. Busby did involve pension benefits. However, while the trial court did not award the wife any part of the pension benefits, this was approved by the appellate court because the present cash value of the plan had been included among the assets of the parties and was awarded to the husband as part of his share of the property division; he was in fact awarded much less than half of the property. Accordingly Busby would seem to support the wife's contention that pension benefits must be treated as marital property.
However, both Carterfield and Busby are irrelevant for the simple reason they involved appeals from judgments decided before October 1, 1977, and thus were governed by the earlier act. As we have already noted this case is governed by the new Marriage and Dissolution of Marriage Act.
3 Sections 503(a) and (b) of the Marriage and Dissolution Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(a), (b)) provide:
"For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':
(1) property acquired by gift, bequest, devise or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by ...