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In Re Marriage of Miller



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


This action was commenced when Fred H. Miller filed a complaint for divorce. Susan F. Miller, the appellee, filed her answer and countercomplaint for divorce or, in the alternative, separate maintenance and other relief. *fn1 The Circuit Court of Cook County dismissed the appellant's complaint and granted the appellee's counterclaim for dissolution of the marriage. The appellant was ordered to convey his interest in the marital home to the appellee in lieu of maintenance and to pay a portion of the appellee's attorney's fees. Upon the denial of appellant's post-trial motion, this appeal was taken.

The appellant does not dispute the trial court's findings or judgment regarding the dissolution of the marriage. He appeals from that portion of the judgment order concerning the distribution of marital property and the award of attorney's fees. Specifically, the appellant argues that the trial judge abused his discretion in (1) awarding the marital home solely to the appellee, (2) awarding attorney's fees to appellee's counsel and (3) failing to require appellee to comply with a notice to produce. The appellant also contends that he was deprived of a fair trial because of the conduct of the trial judge.

• 1 The appellee contends that this appeal should be dismissed for lack of jurisdiction due to the appellant's failure to comply with Supreme Court Rules 323 (time for filing report of proceedings) and 326 (time for filing record on appeal) (Ill. Rev. Stat. 1977, ch. 110A, pars. 323, 326). However, Supreme Court Rule 301 (Ill. Rev. Stat. 1977, ch. 110A, par. 301) provides that, other than the filing of a notice of appeal, no step is jurisdictional. Therefore, having jurisdiction, we proceed to the merits of this appeal. O'Brien v. Kawazoye (1975), 27 Ill. App.3d 810, 327 N.E.2d 236.

The appellant's first argument on appeal is that the trial court abused its discretion in awarding the marital home solely to the appellee because the parties were basically in the same financial position, and the home was acquired during the marriage. At the time of trial, the appellant was 66 years of age and retired. He was receiving a monthly pension and social security benefits in the amount of $545. After retirement he continued to work part-time doing manual labor but voluntarily terminated this employment each year when his earnings reached $3,000, the amount a retiree could earn annually and still receive full social security benefits. The appellant denied having any bank accounts and admitted surrendering a $5,000 life insurance policy for $1,900, in violation of a court order. He testified he used the proceeds to pay back taxes and for auto repairs. The appellant estimated his expenses to be $375 per year for automobile insurance and approximately $416 per month for rent, food, utilities, telephone, car payments and entertainment.

The appellee, also 66 years of age at the time of trial, was a retired clerical worker. She had worked for 43 years and was receiving a total of $456 per month from her social security and pension benefits. Her expenses included $1,100 per year for real estate taxes, $300 per year for house insurance and approximately $560 per month for food, medical, utilities, transportation, clothing and incidental expenses. On cross-examination, the appellee denied having any savings accounts in her name. However, she admitted that in 1976 an account existed in her name in an amount of $8,400, but testified that the money was transferred in June of that year to a joint account in her name and her daughter's. The appellee denied opening other accounts in her name but said her daughter had opened another joint account. She stated all the money in all accounts belonged to her daughter and all of the banking transactions involving these accounts were done by her daughter and not at her (appellee's) direction. On re-cross-examination, the appellee stated $1,500 of the $8,400 was money she inherited upon her sister's death. She admitted that some of her paychecks had been deposited in the savings account by her daughter but that she had received cash from her daughter for the amount of the checks.

The appellee's testimony regarding the savings accounts was supported by her daughter's testimony. June Miller, the adult daughter of the parties to this suit, testified that most of the money in the accounts was hers, which she obtained from the sale of her tavern business, and that she withdrew money from one account and put it in another. She admitted giving both of her parents cash for their employment checks and subsequently depositing those checks in her savings accounts.

The marital home was purchased by the parties in 1966. The parties lived together in the home with their daughter until 1976 when the appellant left. The mortgage on the property at the time of purchase was approximately $19,000. It is undisputed that the appellee took care of the household finances and would pay the monthly bills from her employment check and the check the appellant received from his primary job which he gave to her. The appellant testified that he continued to give the appellee his check until May 1976. It is also undisputed that the parties' daughter, June, paid $17,000 towards the mortgage from 1972 to 1976. June Miller testified that she made the mortgage payments because she wanted her parents to have a paid-up home. When asked by the trial judge whether she expected to be repaid the $17,000, she responded affirmatively and said she expected repayment out of the proceeds of the house when it was sold. She said she had this agreement with her mother but not with her father.

Appellee valued the marital home at approximately $45,000 to $50,000. At the conclusion of the testimony the court allowed the appellant's counsel to make an offer of proof that an appraiser, if called, would have testified that the value of the marital home was $63,000.

The judgment of dissolution of marriage contained several findings of fact, including the following:

"5. That Sue F. Miller is unemployed and that Fred H. Miller has an income of approximately ninety-five hundred forty ($9540.00) dollars per annum;

6. That it was impossible for Sue F. Miller to have accumulated eight thousand ($8,000.00) dollars on the representation of her represented earnings, which are not denied or contradicted;

7. That Fred H. Miller's ability to pay Sue F. Miller any alimony or maintenance is impaired;

8. That [appellant], by violating injunctions, necessitated additional legal time to be spent in this ...

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