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In Re Marriage of Thornton

OPINION FILED JUNE 26, 1980.

IN RE MARRIAGE OF ELIZABETH M. THORNTON, PETITIONER-APPELLANT, AND EDMUND B. THORNTON, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The petitioner, Elizabeth M. Thornton, and the respondent, Edmund B. Thornton, were married on December 31, 1964. Proceedings for divorce under the former divorce act (Ill. Rev. Stat. 1975, ch. 40, pars. 1-21.4 (repealed)) were instituted in April 1975. Judgment for dissolution under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) (Marriage Act) was entered on October 18, 1977. Neither party appeals from that judgment nor from a judgment order granting custody of the children to Elizabeth Thornton. On July 5, 1978, the trial court entered judgment on the property, maintenance and child-support issues. Elizabeth Thornton appeals from those orders. Elizabeth Thornton appeals and Edmund Thornton cross-appeals on the issue of attorneys' fees.

At the time of the entry of the judgment of dissolution, Elizabeth Thornton was 40 years old and Edmund Thornton was 47. The parties have four children, twin boys born in 1965 and twin girls born in 1968.

Elizabeth Thornton was awarded $48,000 a year in unallocated child support and maintenance. In addition, Edmund Thornton was ordered to pay the children's extraordinary medical expenses and all educational expenses including transportation unless those expenses were met by disbursements from family trusts. The trial court determined the value of the parties' property and distributed it as follows:

"Edmund Thornton's Value Awarded Value Awarded Non-Marital Property Elizabeth Thornton Edmund Thornton

Ottawa Silica, 510 shrs. com. stock $ -0- $ 51,510 Ottawa Silica, 570 shrs. 2d pfd stock -0- 16,920 Residential estate, 39.4 acres (Thornwood) -0- 250,000 Interests in ten family trusts -0- (undetermined) ________ ______________ Total $ -0- $318,430

Elizabeth Thornton's Non-Marital Property Securities $ 68,000 $ -0- Jewelry & Furs 61,000 -0- Furniture & automobile 7,000 -0- Checking and savings accounts 850 -0- __________ ________ Total $136,850 $ -0-

Marital Property Miscellaneous securities $ 7,512 $ 7,512 Profit sharing and pension account -0- 109,000 California real estate proceeds 35,500 35,500 Four automobiles -0- 6,200 Houseboat -0- 7,500 LaSalle County farms (3) -0- 233,600 Coin collection -0- (undetermined) Stamp collection -0- (undetermined) Gun Collection -0- (undetermined) Cash 20,000 -0- Indebtedness -0- (290,540) Household furnishings * * Life Insurance * * _________ __________ Total $63,012 $108,772

GRAND TOTAL $199,862 $427,202 excluding excluding items of items of undetermined undetermined value value."

The court determined the household furnishings had a total value of $200,000. Edmund Thornton was awarded those items which he inherited, brought into the marriage or were "of particularly personal interest to him." The remaining household furnishings were awarded to Elizabeth Thornton.

The life insurance was awarded to Edmund Thornton. He is to designate Elizabeth Thornton as beneficiary of $100,000 of insurance on his life for 10 years or until her prior death or remarriage. The value of Edmund Thornton's interest in the family trusts was not determined by the trial court. However, Edmund Thornton attached a summary to his appellate brief which valued the trust assets at approximately $3 million. Elizabeth Thornton sets the value of the trust assets at approximately $9 million. (See the appendix attached below for a summary of the terms of the various trusts.) The following chart summarizes the distributions to Edmund Thornton from the trusts:

Income Total Distributions Principal Distributions To Or For Distributions To Or For Accumulated Year Edmund To Edmund Edmund Income

1972 $67,017.33 $19,000.00 $ 86,017.33 $73,937.27 1973 71,170.30 50,000.00 121,170.30 67,891.89 1974 61,057.94 6,000.00 67,057.94 85,112.71 1975 75,276.74 20,000.00 95,276.74 65,934.57 1976 73,299.17 18,100.00 91,399.17 82,071.03 1-1-77-9-8-77 50,313.15 -0- 50,313.15 ___ Annual Average (1972-1976) 69,564.30 22,620.00 92,184.30 75,523.40

Edmund Thornton's income includes: $80,000 salary as chairman of the board and chief executive officer of Ottawa Silica Company, a closely held corporation; a bonus of up to one-half of his salary, at the discretion of the board of directors; dividend income; and income and principal distributions from family trusts. The record provides the following specific information concerning the parties' income for the years 1971, 1974, 1975, 1976 and 1977:

Adjusted Total Salary Other Gross Taxable Year And Bonus Income Income Income

1971 $ 78,163 $72,304 $148,085 $128,424 1974 92,327 72,799 160,662 127,719 1975 98,440 82,855 171,375 141,795 1976 109,000 73,000 186,000 145,495 1977 80,000 63,000 143,000 123,000.

Elizabeth Thornton's sole income was $3,000 to $4,000 in dividends. She did not work during the marriage and is not now employed. She has a license to sell real estate but the trial court determined that she would not be able to work full time due to the ages of the children. That determination is not disputed on appeal.

• 1 We will first consider the issues relating to the property disposition. This approach is consistent with the statutory scheme of the Marriage Act under which the issues concerning the final property disposition must be determined prior to the maintenance issues (In re Marriage of Amato (1980), 80 Ill. App.3d 395, 399 N.E.2d 1018) because the issues of maintenance relate directly to the results of the property disposition. (See Ill. Rev. Stat. 1977, ch. 40, pars. 503, 504.) Once the property issues are determined the maintenance award must then be reviewed on the whole record. In re Marriage of Leon (1980), 80 Ill. App.3d 383, 399 N.E.2d 1006; In re Marriage of Amato.

Section 503 of the Marriage Act provides for the "disposition of property." It defines "marital property" as all property acquired by either spouse during the marriage, except the following, which is to be designated as "non-marital" property:

"(1) property acquired by gift, bequest, devise or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) the increase in value of property acquired before the marriage; and

(6) property acquired before the marriage." (Ill. Rev. Stat., ch. 40, par. 503(a).)

Section 503(b) of the Act provides that all property acquired by either party after the marriage regardless of how the title is held is presumed to be marital property. In distributing the parties' property under section 503 the trial court must first classify each item of property as either "marital" or "non-marital." Under section 503(c) the court must then "assign" each spouse's non-marital property to that spouse and "divide" the parties' marital property "in just proportions" considering the factors enumerated in the statute.

Elizabeth Thornton contends that the court was in error with regard to the residential estate which is referred to as Thornwood. This property was acquired by gift after marriage and is properly designated non-marital property pursuant to section 503(a)(1). However, she contends that the increase in value of non-marital property acquired after marriage is marital property. It is contended that the property appreciated $137,620 after the marriage. It appears that the increase in value was not as the result of any direct or indirect contribution of the parties but rather as a result of inflation.

Elizabeth Thornton argues that because the Marriage Act specifically included in its definition of non-marital property the increase in value of property acquired before the marriage (section 503(a)(5)) but did not specifically include in its definition the increase in value of non-marital property acquired after the marriage, that it must therefore be presumed the legislature intended the increase in value of non-marital property acquired after the marriage be marital property.

• 2 Elizabeth Thornton's analysis is, in effect, an application of the rule of statutory construction known as expressio unius est exclusio alterius. However, this maxim is not a rule of law (Dick v. Roberts (1956), 8 Ill.2d 215, 133 N.E.2d 305), and great care is required in its application (2A Sutherland, Statutory Construction § 47.25 (4th ed. 1973), and cases cited therein). The maxim is never to be applied to defeat or override the legislative intent or purpose and may be utilized only where it appears to point to that intent or purpose. People ex rel. Lunn v. Chicago Title & Trust Co. (1951), 409 Ill. 505, 100 N.E.2d 578.

Elizabeth Thornton argues that the "shared enterprise" theory underlying the marital property concept of the Marriage Act would be furthered by applying the maxim in this situation. However, one of the legislative purposes in creating the concept of marital property is to award economic credit in the distribution of property for the indirect and domestic contributions of a spouse to the acquisition of property during the marriage. (Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 376 N.E.2d 1382.) Such a purpose is not furthered by an application of the theory of statutory construction urged by Elizabeth Thornton, that the enhancement in value of a non-marital asset is marital property even where that enhancement in value, as here, results merely from inflation and not from any direct or indirect contribution of the spouses.

We believe an application of the maxim in construing this statutory provision would not point to any apparent legislative intent or purpose but would, rather, serve to thwart the intended statutory purpose. Section 503(c) expressly requires that a spouse's non-marital property be "assigned" to that spouse. There is nothing in the statute which appears to allow the court to assign the original value of a spouse's non-marital property to that spouse while dividing as marital property the natural enhancement in value of that property. Further, a construction of section 503 such as that asserted here by Elizabeth Thornton would result in a different treatment for appreciation in value of non-marital property acquired before the marriage than that of non-marital property acquired after the marriage. We see no logic or policy to support such a result. See In re Marriage of Komnick (1979), 78 Ill. App.3d 599, 602, 397 N.E.2d 886, 888 (Mills, J., dissenting), appeal allowed, 80 Ill.2d 631.

• 3 We hold therefore, that the natural enhancement in value of non-marital property acquired during the marriage is non-marital property. (Hull v. Hull (Mo. App. 1979), 591 S.W.2d 376, construing a statutory provision substantially similar to section 503; contra, In re Marriage of Preston (1980), 81 Ill. App.3d 672, 402 N.E.2d 332; In re Marriage of Komnick.) Thornwood is Edmund Thornton's non-marital property under section 503(a)(1) and was properly assigned to him regardless of any natural enhancement in its value during the marriage.

Elizabeth Thornton next contends that the trial court did not properly consider the statutory factors in dividing the parties' marital property. Edmund Thornton contends that the court's distribution should be upheld because there is no requirement under Illinois law that the marital property be divided with mathematical equality (In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 398 N.E.2d 126), and because the division of property is a matter for the discretion of the trial court (In re Marriage of Miller (1980), 84 Ill. App.3d 931, 405 N.E.2d 1099; In re Marriage of Fleming (1980), 80 Ill. App.3d 1006, 400 N.E.2d 625).

While the distribution of marital property need not be mathematically equal and is a matter of discretion, the trial court is required to consider certain statutory factors in making the division. Section 503(c) of the Marriage Act requires the trial court to divide the marital property "in just proportions" considering all relevant factors. The statute lists 10 factors which are to be considered. Those which seem particularly relevant to this cause are: the value of the property set apart to each spouse (section 503(c)(2)), the relevant economic circumstances of each spouse (section 503(c)(4)), the amounts and sources of each spouse's income and his vocational skills and employability (section 503(c)(7)), and, the reasonable opportunity for each spouse for future acquisition of assets and income (section 503(c)(10)).

One of the enumerated factors to be considered is "the value of the property set apart to each spouse." (Section 503(c)(2).) Elizabeth Thornton's non-marital property was valued at $136,850. Edmund Thornton's non-marital property includes $68,430 in stock, Thornwood, valued at $250,000 and his interest in the family trusts. Elizabeth Thornton disputes the trial court's valuation of Thornwood and of the stock. These issues will be discussed later in this opinion. Her property is therefore valued at $136,850, while he was assigned non-marital property worth $318,430, not including the value of his interest in the trusts. Moreover, his property produces an average of $92,000 in annual income while hers yields only $3,000 to $4,000 per year.

Edmund Thornton is also much better situated than is Elizabeth Thornton in terms of amount and sources of income, vocational skills, and employability. (Section 503(c)(7).) Edmund Thornton's annual salary is $80,000 and he receives an annual bonus of up to one-half his salary and distributions from the trusts. He is employed as chairman of the board and chief executive officer of Ottawa Silica Company. Elizabeth Thornton's sole income is from her non-marital securities. She did not work during the marriage and is not now employed. Although she is licensed to sell real estate, the trial court determined she would not be able to work full time because of the ages of the children.

Under these circumstances it is clear that Edmund Thornton's opportunity for future acquisition of income and assets (section 503(c)(10)) is much greater than that of Elizabeth Thornton. It is also significant that certain of the family trusts provide for the distribution of principal to Edmund Thornton upon their termination.

• 4 Considering that the parties were married for 11 years, that Edmund Thornton's non-marital property produces substantial income while Elizabeth Thornton's produces very little income, that Edmund Thornton is far better situated in terms of income and employability than is Elizabeth Thornton, and that Edmund Thornton's opportunity for future acquisition of income and assets is much greater than Elizabeth Thornton's, we conclude that the statutory factors, none of which weigh in favor of awarding the larger share of the property to Edmund Thornton, support awarding a larger share of the marital property to Elizabeth Thornton than to Edmund Thornton.

We next consider Elizabeth Thornton's arguments in support of her contention that the trial court's award of $48,000 as unallocated child support and maintenance was insufficient. The difficulties which attend the review of unallocated awards are exacerbated in this case, as the parties do not refer to the child-support provisions of the Marriage Act but rather argue solely on the issue of whether the $48,000 award is sufficient in terms of the statutory maintenance provisions.

Elizabeth Thornton contends that the trial court did not properly consider the statutory factors in determining the amount of the maintenance award and that the award should be increased. Edmund Thornton argues that the court did not abuse its discretion in determining the amount of the award and that the award should be upheld because $48,000 is "obviously" sufficient for the support of Elizabeth Thornton and the four children. He states that under the judgment he is also obligated to pay the children's extraordinary medical expenses and to meet all educational expenses including transportation unless those expenses are met by disbursements from the family trusts. Edmund Thornton also states that Elizabeth Thornton has a license to sell real estate.

Section 504 of the Marriage Act sets forth the standard for awarding maintenance. It provides that once the court determines that maintenance is appropriate, an issue which is not in dispute here, the amount and duration of the award shall be "as the court deems just" after considering all relevant factors. The statute lists six factors to be considered. The factors relevant to the amount of maintenance, the issue before us, are the duration of the marriage (section 504(b)(4)); the age and the physical and emotional condition of the parties (section 504(b)(5)); the standard of living established during the marriage (section 504(b)(3)); the ability of the spouse from whom maintenance is sought to meet his needs while meeting the needs of his spouse (section 504(b)(6)); the financial resources of the party seeking maintenance, including marital property apportioned to him (section 504(b)(1)); and the ability of the spouse seeking maintenance to meet his own needs independently (section 504(b)(1)).

• 5 We believe that except where the financial situation of the paying spouse, the duration of the marriage, or the health of the parties otherwise indicates, section 504(b) requires that the amount of maintenance be sufficient to provide the spouse seeking maintenance with the standard of living established during the marriage. The amount of maintenance is reduced by the amount the party seeking maintenance has available to provide herself with this standard of living. The "needs" referred to in section 504(b) should be construed in light of the standard of living established during the marriage.

At the time of the judgment of dissolution the parties had been married for 11 years. (Section 504(b)(4).) Elizabeth Thornton was 40 years old and Edmund Thornton was 47 years old. It appears from the record ...


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