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In Re Marriage of Lawver

OPINION FILED MARCH 21, 1980.

IN RE MARRIAGE OF SHARON KAY LAWVER, PETITIONER-APPELLEE, AND RONALD ALLEN LAWVER, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Fulton County; the Hon. FRANCIS P. MURPHY, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The plaintiff, Sharon Lawver, filed a complaint for divorce on the ground of extreme and repeated mental cruelty when defendant, Ronald Lawver, moved out of the marital home to reside with an unmarried female adult named Mary Jane McCombs. The plaintiff sought an award of maintenance, custody of the parties' only child, Denise Noel Lawver, now seven years old, and child support.

A judgment for dissolution was entered on March 21, 1979. On the same date, the trial court entered a final order providing for property division, maintenance, and child support. Defendant was ordered to pay $35 per week child support and $200 per month maintenance. He received the real estate and equipment associated with the parties' farm and restaurant business. Defendant was permitted visitation with the minor child of the parties as follows: "Visitation shall be one day per alternating weekend upon reasonable notice to petitioner of respondent's intent to exercise visitation. Visitation shall not be overnight and shall be outside the home of one Janie McCombs." He appeals from three aspects of the order: the award of maintenance, the amount of maintenance awarded, and the visitation provisions of the order.

The scant facts of the instant case consist of those undisputed in the pleadings, those contained in a "stipulation" entered into by the parties and in the accompanying financial statement of defendant, and the testimony of the plaintiff at the hearing to establish grounds for dissolution on March 27, 1978.

The parties were married on March 8, 1963. Defendant has worked as a farmer and as a union carpenter, and plaintiff worked as a route accountant for four years of their marriage, until approximately 1972, when she discontinued working to bear the parties' only child. Both parties have completed their high school education. In 1977, the parties acquired an 80-acre tract of land in Putnam County which cost and had a current market value of $35,000 and a current mortgage indebtedness of $26,192. Defendant also owned, in his own name, a restaurant building in Bryant, Illinois, which was purchased in 1976 for $14,500, and has a current market value of $15,000. The property was being purchased on contract for deed with a balance of $12,500. The parties also owned several items of farm and restaurant equipment which Ronald stated in his financial statement were worth $47,300. The two cars owned by the parties had been repossessed. The total assets of the parties on the date of the financial statement, April 12, 1978, were $98,500. The liabilities of the parties on that date were $130,752. Both parties agree on these total figures, but plaintiff claims that two of the loans constituting a portion of the liabilities, totaling $7,500, are for the benefit of defendant only, and a third loan of $26,000 is owed to Sharon's father. Defendant claims that he lost money during the four years prior to the financial statement.

• 1 Defendant contends that the trial court abused its discretion in both the granting of maintenance and in the amount and duration of maintenance. Plaintiff moved to dismiss the appeal on the ground that defendant had accepted the benefits of the decree and is therefore barred by the doctrine of release of errors from appealing those portions of the decree unfavorable to him. A litigant cannot attack a decree if, by reason of enjoying benefits of the decree, the opposing party would be placed in a distinct disadvantage on reversal. Lemon v. Lemon (1958), 14 Ill.2d 15, 150 N.E.2d 608.

In the instant case, this court allowed petitioner's motion to supplement the record on appeal with evidence of financial transactions that the defendant had participated in since the divorce decree. Sharon filed an affidavit in which she, as affiant, stated that defendant had consumated three financial transactions with the property he received in the divorce settlement since that settlement occurred. These transactions are: (1) The sale of 15.011 acres of the 80-acre farm; (2) the remortgage of the remainder of the farm to obtain a $28,700 loan; and (3) the sale of his interest in the restaurant in Bryant. Plaintiff attached to her motion the deed verifying the 15.011 acre sale and the mortgage note executed on the farm. This court granted defendant's motion to file supplemental material in response, but he filed none. Under these circumstances, plaintiff's affidavit was accompanied by substantiating documentation, the financial transactions outlined by her will be viewed as having occurred essentially as alleged. Defendant has sold or encumbered all of the assets which he received as a result of the divorce decree with the exception of some of the equipment.

The net effect of these transactions is to substantially alter defendant's financial statement by increasing his liabilities and liquidating his assets. Plaintiff received no real property in the divorce decree. She received the personal property in her possession and an award of maintenance. If this court were to reconsider the award of maintenance and reverse part of the decree, the trial court would then have to redetermine the property and maintenance awards. In light of the financial transactions in which defendant had participated, plaintiff would be "distinctly disadvantaged" in any such redetermination of maintenance, as defendant's financial picture is now considerably weaker.

• 2 We hold that the appeal of the award of maintenance in this case was barred by the defendant's acceptance of the benefits of the divorce decree which would distinctly disadvantage the plaintiff upon any redetermination of those rights.

The defendant also appeals from the trial court's order providing visitation with the following limitations:

"[V]isitation shall be one day per alternating weekend upon reasonable notice to petitioner or of respondent's intent to exercise visitation. Visitation shall not be overnight and shall be outside the home of one Janie McCombs."

In this case the only testimony regarding visitation was plaintiff's testimony at the March 27, 1978, hearing that she had "qualifications" as to what visitation defendant should be permitted. When asked if she objected to temporarily continuing visitation as it had been carried out during the separation "until the matter is totally disposed of," she replied in the affirmative. The only other mention of visitation of record is notations on the trial court docket sheet of two conferences held by the parties with the trial judge on August 7, 1978, and on April 13, 1978. There is no record of the substance of these conferences other than the docket sheet notation that visitation was one of the subjects discussed. The court on this record prohibited overnight visitation, limited visitation to a maximum of two days per month, and required that such visitations be outside the home of Janie McCombs, which is also apparently defendant's present residence.

Defendant contends that a non-custodial parent is entitled to reasonable visitation unless the trial court finds that the child's health could be endangered, and that the restriction imposed by the trial court's order constitutes both a manifest injustice in so far as he is concerned and an abuse of the trial court's discretion.

While this complaint was filed prior to the effective date of the present Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 607(a)), the decree and orders were issued after its effective date and the proceedings are ...


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