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In Re Marriage of Lukas





APPEAL from the Circuit Court of Cook County; the Hon. MARY ANN G. McMORROW, Judge, presiding.


Joseph J. Lukas, respondent (husband), appeals from the provisions of the supplemental judgment allocating and awarding property and maintenance in a marriage dissolution proceeding tried in the circuit court of Cook County. Neither husband nor Loretta V. Lukas, petitioner (wife), objects to the earlier judgment which dissolved the marriage under the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq. (Dissolution Act).

On appeal, husband contends: (1) his workmen's compensation proceeds were not a transferable marital asset within the purview of the Dissolution Act, and the trial court's award of a portion of the proceeds to the wife was prohibited by the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.21); and (2) the trial court's award of permanent maintenance to the wife was disproportionate in relation to the distribution of the marital property and excessive in that there was insufficient evidence that the wife was unable to support herself.

We affirm.

The evidence, much of it submitted by stipulation, shows the husband and wife were married for over 31 years prior to their separation in 1977. Three children were born to them, all of whom had reached majority and were living away from the parties when the proceedings here began.

It appears that for the first six years of marriage, the wife, who had a high school education, was employed as an office worker doing filing and typing. Thereafter, she devoted her full time to maintaining her role as homemaker and raising the children. On occasion, she attended some classes to re-establish her office skills but she has had no actual employment for over 25 years.

For the past eight years the wife has been under the care of a physician. She suffers from pleurisy, menopausal disfunction and nervousness. She is now 53 years of age. The past 31 years she has resided in the marital home located in Chicago.

The husband, who is now 56 years of age, is a skilled machinist and mechanic and has been employed by the Willard Company for over 25 years. His net earnings, including overtime, average approximately $1350 per month.

In 1972, the husband, while at work, sustained an elbow injury; in 1973 he suffered a fracture of his left kneecap; in 1974, he sustained a fracture of his right kneecap. Shortly after each injury he received a lump sum workmen's compensation award in the respective amounts of $3701.25, $4000 and $4000. Twenty percent of these sums was paid out in attorney's fees.

Initially, he placed the net proceeds into a joint savings account standing in the name of the husband and wife. The record is unclear as to exactly when this joint account was first opened, but it appears to have been in early 1972. The record discloses the husband made various deposits into and various withdrawals from this account prior to depositing any of the workmen's compensation awards into it.

In December of 1977, the husband withdrew $10,000 from this joint account and purchased a savings and loan certificate of deposit naming himself as trustee-owner of the certificate for the benefit of the parties' granddaughter, Christine Collins. The record further discloses that the husband, sometime around December 1977 withdrew $964.44 from this same account. Further, it appears that there was another joint savings account held by the parties. This second account contained $5577 in April 1977 and thereafter through various withdrawals by the husband, a balance of about $300.00 remained in that account as of March 10, 1978, when the trial court conducted the supplemental hearing in this case.

The parties stipulated that the marital home, a bungalow, was unencumbered, was held in joint tenancy, and was worth about $30,000. The husband owned a 1965 Dodge automobile and had purchased and given to the wife a 1974 Ford automobile. The parties also agreed that the marital residence contained furniture and furnishings of insubstantial value.

The wife contended that her monthly expenses as budgeted came to $1106.75 and that she would require an additional allowance to meet any income tax liability were she awarded taxable maintenance. At trial, the husband, while stipulating the wife would so testify as to her financial needs, did not agree that the amount claimed by her was accurate. He did not, however, present any evidence to counter the wife's testimony.

The wife also testified that she had a checking account with $200 in it; that she had no stocks or bonds; that she was unable to work or even seek employment because of her illness; that she was dependent on the husband for her support but in view of his failure to give her adequate funds she was compelled, since the separation, to borrow about $5,000 from her sister and daughter.

The wife stated further that she and the husband had borrowed $3300 from her mother to pay for an addition to the marital home; and this loan was never repaid. Also, when the house was purchased, a $5,000 down payment was supplied from the wife's savings and a cash gift from her mother. At the time of the house purchase, the husband was still attending school and did not go to work until about one year after the marriage.

The wife submitted a list of debts totaling about $5,000 which she said she incurred approximately between the time her divorce action was filed in April 1977 to the date of the supplemental hearing on March 10, 1978. Without objection, the list was admitted into evidence. It was the wife's position that the debts listed, including $2,000 borrowed from her sister to pay attorneys' fees in the sum of $1,000 and to pay for detective services in the sum of $1,000, should be repaid to her by the husband. She likewise sought reimbursement for the other listed debts claiming they should be paid by the husband over and above the sums allowed her under the temporary maintenance award granted by the court on October 5, 1977, and which provided an allowance to her of "* * * one-third of his weekly net pay, but in any event a minimum of $80.00 per week."

The husband asserts he is troubled with leg and knee weakness stemming from his previous injuries; additionally, he has a fractured right wrist which is not presently amenable to surgical treatment. He works on heavy duty machinery, rebuilding transmissions, adjusting power steering and correcting gears. He has been regularly working since his last accident and for most of the past 10 years has been allowed to work on an overtime basis. Without overtime, he earns about $1,000 net per month. Since the entry of the order granting the wife temporary allowances, he has been paying her an average of about $86 per week. He did give her about $200 per week when he earned his regular salary and $250 per week when he worked overtime; and additionally he would pay the water bills, real estate tax bills, car expenses and house repair expenses.

Further, the husband contends that since his separation he has lived with his mother whom he pays between $75 to $155 per week for room and board. His weekly expenses average about $150. He paid, in addition to the court-awarded allowances, $4,000 of the wife's bills including doctor expenses, eyeglass costs, $1,000 for a new furnace for the marital home and many miscellaneous expenses.

The husband also claims he has, as the totality of his assets, a checking account with about a $200 balance, one $50 bond, the old automobile, his interest in the marital home and his job. He acknowledges that he has some insurance through his employment and some benefits from a union-supported pension which may be available to him upon his retirement and reaching a certain age. He admits that he withdrew funds from the joint savings accounts despite an injunction order which had issued on April 28, 1977, but asserts the money was used almost exclusively to pay the wife's bills. Further, he agrees that his 1976 income tax return would show a gross income for that year of $26,751.24 and that his gross income for 1977 would be about the same.

The husband contends the marital residence should be partitioned or sold immediately by agreement of the parties and that the net proceeds be divided equally. Counsel for the husband states that in view of the length of the marriage and other considerations, the wife was entitled to a fair share of marital property and some maintenance for a reasonable period of time but not a permanent maintenance allowance. He urges that the court direct the wife to take employment; and importantly, that the husband keep the $10,000 certificate of deposit as his sole property, it representing his workmen's compensation awards.

The record indicates the hearing before the court was conducted in a manner bordering on the informal; much of the evidence was presented with agreement on both sides and accepted for whatever value was discernible to the court.

The court's supplemental judgment was entered on June 9, 1978. It provided, inter alia, the wife would have the first right, subject to certain conditions, to purchase the husband's interest in the marital residence within a period of 90 days and, if she was unable to effectuate the purchase, the husband, under certain conditions, would have the right to purchase the wife's interest. In the event neither party could effectuate the purchase within the prescribed period, the wife would have the right to reside in the property for a period up to four years after which time the property was to be sold on the open market and the net proceeds divided equally between the parties. Until the sale of the property, the husband was obligated to pay the real estate taxes and the "household insurance" and share equally in the expense of any major repair as more fully detailed in the supplemental judgment provision.

The supplemental judgment, without exactness and without defining certain possible future changes in circumstances, further provided essentially the following:

a. The husband is to pay the wife permanent maintenance equal to 40% of his net income from all sources, including overtime earnings but with a maximum of $10,000 per year and a minimum of $5,200 per year. The obligation to pay 40% of net income would be reduced to 25% of net income were the wife to earn $600 or more net per month.

b. The husband is to keep in full force and effect certain life insurance and he is to designate the wife as the irrevocable beneficiary so long ...

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