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Pettit v. Pettit





APPEAL from the Circuit Court of Ford County; the Hon. SAM HARROD, III, Judge, presiding.


This litigation makes its second appearance in this court after our prior remand for reconsideration by the trial court of all provisions of the original decree concerning the division of the parties' property and awards of alimony to the plaintiff. Details of the former appeal appear at 60 Ill. App.3d 375, 376 N.E.2d 782. Upon remand, the pleadings were amended, new hearings were held on the subjects of temporary alimony for the plaintiff and of final disposition of the parties' property, and a new decree was entered which is the subject of the instant appeal.

At the outset, because of the chronology involved, it is necessary to determine whether the remand proceeding and this appeal are governed by the former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 1 et seq.) (Divorce Act) or by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) (Dissolution Act).

Our prior opinion was filed May 26, 1978. It was concerned with a decree entered September 29, 1977. Notice of appeal from that decree was filed October 27, 1977. The Dissolution Act became effective October 1, 1977, and provides in part: "(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act." (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) It will thus be seen that on the effective date a complete judgment had been entered, disposing of all issues.

Section 801(b) was interpreted in Staub v. Staub (1978), 67 Ill. App.3d 1004, 1007, 385 N.E.2d 771, 774, as follows:

"In our estimation, the legislature attempted through section 801(b) to allow only those issues which had not been fully litigated prior to the effective date of the new act to be decided under the new law. It is not this section's intent to require the relitigation of issues already decided under the previous law simply because post-trial motions are pending or filed after the effective date of the new act."

This language was cited with approval by the supreme court in West v. West (1979), 76 Ill.2d 226, 390 N.E.2d 880.

• 1 The trial court exhibited some confusion over this situation which undoubtedly led to some of the error which will be discussed later in this opinion. The Divorce Act applies.

Upon remand, the trial court first held a hearing on plaintiff's petition for temporary support. This occurred on July 28, 1978, and was based on the oral testimony and the affidavits submitted by the parties. Plaintiff showed net assets of about $48,000 while defendant showed assets of $78,453 and liabilities of $90,946. The court ordered defendant to convey to plaintiff his interest in certain Arizona property as temporary alimony. The interest was said to be worth about $18,000, and a written order on temporary alimony was entered August 7, 1978. Defendant appeals from this order, together with the final order entered September 21, 1979.

Plaintiff filed an amended complaint on November 14, 1978, and in it she alleged the existence of various properties acquired by the parties and further alleged a claim of special equities in those properties. A final hearing was held September 14, 1979, at which the evidence was in large part a reiteration of that adduced at the hearing on temporary alimony on July 28, 1978. That evidence may be summarized as follows:

That plaintiff had kept the house, taken care of the children and cooked the meals; that she had helped in the fields with whatever had to be done, did the work of every farm wife, hauled in grain, went for parts, seed and fertilizer; helped with the home repairs; milked many cows and put the milk in the cooler, took meals to the field, cooked for hired men, painted and wallpapered; drove the tractor and worked the ground. This type of outside activity continued until the boys were big enough to help. In addition, plaintiff testified that during the course of the marriage she had accumulated monies by her own efforts which was the source of her savings, by tending a herd of sheep and other earnings at a hardware store. Plaintiff further testified that she remodeled and refurbished and maintained the houses that were bought and sold on the 21 farms that the parties had traded over the course of their marriage. Plaintiff testified over objection that up until the sale of the last farm the parties owned, everything including the personal property was in joint tenancy.

The defendant testified that the parties had received $367,171.34 from the sale of certain assets at the time just prior to their separation. Defendant further testified that he and the plaintiff were both worth around $320,000, and, that he considered the plaintiff a partner.

In its final order the trial court resolved all factual conflicts in the evidence against the defendant and in favor of the plaintiff and made the inconsistent finding that the plaintiff had proved special equities in the properties (apparently following the Divorce Act), but that they were marital property (seemingly following the Dissolution Act). The order then distributes the property as follows: (1) sets aside to the plaintiff all property in her own name and/or in her possession including the real estate in Arizona; (2) gives the marital home and attached lots to the plaintiff, together with an automobile and an antique clock; (3) orders defendant to obtain a release of a mortgage on the marital home and the clock; and (4) orders defendant to make periodic alimony payments of 40% of his gross earnings after taxes.

As indicated above, defendant has appealed both the final order of September 21, 1979, and the temporary order of August 7, 1978. He raises essentially four issues: (1) whether the case is controlled by the Divorce Act or the Dissolution Act of 1977; we have already disposed of this issue by holding that the former controls; (2) whether the final order constitutes an award of both periodic alimony and alimony in gross; (3) whether the trial judge abused his discretion in ...

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