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In Re Marriage of Mcmahon

OPINION FILED APRIL 10, 1980.

IN RE MARRIAGE OF MARTHA LEE MCMAHON, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND WILLIAM WILLARD MCMAHON, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


APPEAL from the Circuit Court of Coles County; the Hon. CARL A. LUND, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

We are asked to rule that the trial court should have split the marital property 50/50 instead of 60/40.

We cannot do so.

An even cut might have been proper and quite reasonable. But it is not mandated under the new law, and the failure to award one-half does not of itself establish reversible error.

The lower court is affirmed.

BACKGROUND

This is the second time around the reviewing track. An earlier appeal from the judgment of dissolution of marriage — entered January 18, 1978 — was brought to this court by petitioner, Martha Lee McMahon. There, she successfully challenged the trial court's award of child support and its division of marital property. In an order pursuant to Supreme Court Rule 23 (73 Ill.2d R. 23), the trial court was directed to conduct further proceedings, and at the conclusion thereof the court below amended its prior order. Petitioner again appeals, once more challenging the amount of child support awarded and the division of property.

The facts are these. At the time of the initial hearings in this case, the wife was 49 years old and the husband was 52. They had been married for approximately 28 years and had two daughters. The youngest daughter, Kimberly, was 14 years old and lived with petitioner.

During the last 15 years of their marriage, the parties developed a successful business which provided financial income and some accumulation of wealth. It is not disputed that this accumulation of wealth is, for practical purposes, all marital property.

A review of the history of this marriage reveals that both petitioner-wife and respondent-husband contributed to its financial success to some extent. At the time of the marriage, the wife was employed full-time by her father, while the husband attended college and was employed at a foundry. He soon decided to begin his own business in the trucking industry and expanded his initial venture to include milk routes and automobile transports. She handled a portion of the bookkeeping for these businesses.

After leaving her father's employ, the wife worked for Sears, Roebuck & Company, then Montgomery Ward, and finally Moore Farm Buildings, where she was an office manager and bookkeeper. All the money she acquired, as did that of the husband, went back into the marriage.

In 1960, Sturdi-Built Farm and Commercial Building Company was begun by the McMahons along with Bill McElwee. This company is involved in the pole barn building business and it constitutes the principal asset of the parties. Petitioner's job with the company was basically the same as her job at Moore except somewhat more extensive. Respondent, who sold his milk routes to acquire capital for the company, handled everything but sales. After additional employees were added, he also began working in that area of the business, and in 1964 he purchased McElwee's interest. Initially, operation of the company required respondent to work days which began at 5:30 a.m. and terminated from 5:30 to 9 p.m.

During the period of time that the parties operated Sturdi-Built, petitioner took care of the responsibilities at home. A cleaning lady helped with these obligations and later the parties employed a lady to do the ironing, one to care for the younger child, and a yard man. As the business prospered, petitioner's duties increased correspondingly.

Sturdi-Built prospered and provided the parties with sufficient income to allow for other investments. Respondent made all decisions in this regard and his decisions were, apparently, quite successful. Upon remand, the trial court placed a total valuation on the assets acquired during the marriage in excess of $1,311,000.

Evidence as to the parties' respective incomes was also presented to the trial court. The petitioner-wife's gross income is approximately $50,000 and respondent-husband's is approximately $150,000.

Petitioner contends that the trial court erred in dividing the marital property of the parties. In the amended order, the trial court awarded her the marital residence, various stocks, a bank account and other properties in addition to a $210,000 cash payment from respondent. These assets totaled approximately $520,000. Respondent was awarded assets — including Sturdi-Built Farm and Commercial Building Company — totaling in excess of $1,001,000. He was, however, ordered to pay petitioner $210,000 and to pay her attorney's fees. Subtracting the $210,000 payment and attorney's fees from respondent's assets results in an award of approximately 60% of the marital estate to him and 40% to her.

Petitioner claims that the trial court erred in its consideration of the factors enumerated in section 503(c) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1977, ch. 40, par. 503(c).) She contends that consideration of those factors would have resulted in an equal division of the property.

STANDARD OF REVIEW

• 1 Prior to addressing this contention, we must resolve the issue of the appropriate standard of review under the new Act. Respondent argues that the appropriate standard is whether the trial court abused its discretion when dividing the marital property. Petitioner does not challenge that standard and we have concluded that it is, indeed, the appropriate yardstick by which to review the trial court's action.

Prior to passage of the new Act, courts> of review examined awards under the special equities concept of section 17 of the Divorce Act. In doing so, the question was whether the trial court had abused its discretion. Valdez v. Valdez (1978), 57 Ill. App.3d 81, 372 N.E.2d 1087.

Since the Marriage and Dissolution of Marriage Act was enacted, there seems to have been some confusion as to what standard should be applied when reviewing the trial court's award: In re Marriage of Glidden (1979), 71 Ill. App.3d 376, 389 N.E.2d 657 (abuse of discretion); Ayers v. Ayers (1978), 61 Ill. App.3d 936, 378 N.E.2d 792 (the court's division of property supported by the evidence); In re Marriage of Stallings (1979), 75 Ill. App.3d 96, 393 N.E.2d 1065 (not against the manifest weight of the evidence nor contrary to section 503(c) of the Act).

• 2 In section 503(c) the legislature has provided the court with 10 factors that are to be considered when dividing marital property. We do not believe that the legislature intended, by this enumeration of certain factors, to change the standard by which we are to examine the lower court's ruling. When a statute is adopted from another State, the construction previously placed on it by courts> of that State accompanies it and is treated as incorporated therein — unless the legislature manifests a contrary intent. Cook v. Dove (1965), 32 Ill.2d 109, 203 N.E.2d 892.

Jurisdictions with statutes similar to our new Act apply the abuse of discretion standard in reviewing divisions of marital property. (In re Marriage of Davis (1975), 35 Colo. App. 447, 534 P.2d 809; Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014.) In fact, the overwhelming majority of appellate courts> in this country apply the standard of abuse of discretion when reviewing the adjustment of property rights in divorce cases. 24 Am.Jur.2d Divorce and Separation § 933 (1966).

We believe the question presented to us is whether — after considering the factors enumerated in section 503(c) — the trial court abused its discretion.

My brother Craven's brittle dissent says that he does not agree that "abuse of discretion" is the proper standard, but at the same time he states that the trial court has "discretion" to divide the marital property under section 503(c) of the Act. And — without citation to authority — he reads the Act as mandating a 50/50 split absent "compelling evidence" to the contrary. Apparently comfortable with the terms "compelling evidence" and "manifest weight of the evidence" without further definition, the dissent then suggests that we review the division of marital property to determine if there has been compliance with the statutory criteria. Under this standard, the discretion once granted somehow dissolves and we substitute our judgment for that of the trial court. We cannot agree that the legislature intended such a result.

Mr. Justice Craven's rejection of the abuse of discretion standard is premised on inconsistent reasoning and on even weaker authority. The dissent reasons that in matters of substantive law the trial court has discretion only when it is bounded by "well-understood principles within which it should be exercised." Ignoring this rule, the dissent then finds that no discretion is given the trial court under the Act because the Act places explicit restraints upon the trial court's authority. Apparently these "explicit restraints" which the dissent suggests we use to review the trial court's decision are not "well-understood principles" which would confine the amount of discretion granted the trial court. The dissent attempts to obfuscate the issue by reference to terms such as "arbitrary," "capricious," and "wide discretion." In fact, the grant of discretionary power in this type of case is regulated by all relevant factors, including the 10 enumerated in section 503(c), and failure of the trial court to properly consider those factors would constitute an abuse of discretion.

Having reviewed the trial court's decision in the case at bench under the applicable standards, we conclude that it did not abuse its discretion. We affirm.

ABUSE OF DISCRETION

Section 503(c) requires the court to consider all relevant factors including, inter alia, the contribution of each party which encompasses the contribution of a homemaker; the duration of the marriage; the relevant economic circumstances of the parties; the age, health, station, occupation, amount of income, skills, liabilities and needs of the parties; custodial provisions for any child; whether the apportionment is in lieu of, or in addition to, maintenance and the reasonable opportunity of each spouse for future acquisition of capital assets and income.

Petitioner notes that the parties were essentially the same age and in good health. She argues, however, that a less than equal split is an abuse of discretion where respondent's income is greater than hers, his potential future acquisition of assets is greater, the marriage was of long duration and custody was awarded to her. In support of her position she cites numerous cases from other jurisdictions where an equal distribution was affirmed on appeal.

But the cases cited by petitioner are not dispositive of this appeal. A review of those opinions shows that the appellate courts> did not hold that an equal division was required, only that it was not an abuse of discretion. (Roe v. Roe (1976), 171 Mont. 79, 556 P.2d 1246; In re Marriage of Harding (Colo. App. 1975), 533 P.2d 947.) A fair and equitable division does not require that the marital estate be split in equal portions. Marcotte v. Marcotte (Colo. App. 1974), 525 P.2d 507.

In its first order, the court below here noted that it had considered all of the statutory elements including the fact that petitioner had been employed during the marriage and had, with the assistance of domestic help, maintained the household of the parties. Upon remand, the court reiterated its initial finding, that respondent contributed more in the acquisition, preservation and appreciation in value of the marital estate. The court stated that it did not intend to depreciate the ...


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