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In Re Marriage of Coram



APPEAL from the Circuit Court of Massac County; the Hon. ROBERT H. CHASE, Judge, presiding.


Respondent, Glenny Wayne Coram, appeals from the judgment of the Circuit Court of Massac County dividing marital property and awarding maintenance, child support and attorney fees to petitioner, Vera L. Coram, following the dissolution of the parties' marriage.

The parties were married March 5, 1951, and were the parents of eight children. On October 17, 1977, the date of the first hearing on the petition relating to the dissolution of marriage, only three minor children were at home. They were 17, 16 and 14 years of age. Petitioner is a housewife who has worked parttime as a waitress and who also sold Tupperware and Avon products. She testified that she was 45 years of age and that she has some medical problems and is unable to lift more than 12 pounds; however, she stated that she otherwise was willing and able to work. Respondent is employed as an outside salesman by Dealer Tire and Supply of Paducah, Kentucky. Respondent was 44 years of age at the time of the hearing, and his average monthly net cash salary was $1,237, although there were seasonal fluctuations in the actual monthly income.

The property of the parties consisted of the marital home, respondent's pension plan, Dealer's Tire and Supply Company stock, two automobiles, two bank accounts and various household furnishings. Respondent testified that the marital home was worth $25,000 and that $4,301.43 remained unpaid on a mortagage on the home. The house payments were $48 per month. Respondent's pension plan with Dealer Tire and Supply had a value of $24,773 and will become available to respondent at age 65 according to the testimony of Dealer Tire and Supply Company's office manager. Whether the pension will be paid in a lump sum or monthly payments is to be determined by the company. Respondent also acquired stock in Dealer Tire and Supply Company valued at $4,078, which was purchased by $23 per month deductions from his paycheck. Respondent also had two life insurance policies. One policy, acquired through the company, was for $50,000, of which $25,000 was payable to respondent's employer and $25,000 to respondent's beneficiaries. The second life insurance policy was for $5,000.

The parties stipulated in open court that petitioner would receive the 1971 station wagon and respondent would receive the 1960 pickup truck. The parties also stipulated to a division of certain items of personal property, and petitioner was to receive the household goods, furniture and appliances.

Petitioner stated as to the expenses incurred by her each month. She stated that her individual expenses totaled $123.87 per month and included medicine, life and accident insurance, a medical checkup and food. The expenses incurred for the children totaled $498.57 per month. Further, certain other expenses could not be segregated and were incurred for both petitioner and the children. Petitioner testified that they were $261.14 per month. Included in the remaining expenses were the utility bills, the house payment, property taxes, home insurance and car expenses. Respondent testified to incurring monthly living expenses of $350.50.

The trial court awarded petitioner the marital home and required her to make the balance of the mortgage payments. She was also awarded the joint bank account; and respondent was ordered to pay her attorney fees. The court further ordered respondent to pay $450 a month maintenance and $100 a month child support for each child until that child reached majority or leaves school, whichever occurs last. Respondent was awarded his pension plan, the stock in Dealer Tire and Supply, and the bank account in his name. The court also ordered that respondent retain petitioner as the beneficiary on his life insurance policy during the minority of the children and required respondent to provide medical and health insurance for the children as long as he was obligated to pay child support. The property settlement stipulation of the parties regarding the motor vehicle, household furnishings, appliances and other possessions was approved by the court and adopted as a part of its judgment.

Respondent filed a post-trial motion alleging errors in the maintenance award, attorney fees, child support and the property disposition. With respect to the maintenance award, respondent alleged that the court had failed to make the findings required by section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 504(a)) to establish the propriety of awarding maintenance. The court entered a nunc pro tunc order on July 18, 1978, finding that maintenance was justified pursuant to section 504(a)(1) and (3) of the Act.

On appeal, respondent contends (1) that the marital property was unjustly apportioned; (2) that the award of maintenance and attorney fees was not supported by the record and (3) that the amount of child support is excessive.

Respondent initially contends that the marital property was not divided in just proportions as required by section 503(c) of the Act nor was section 503(b) of the Act properly applied.

The evidence indicates that respondent's pension plan was acquired entirely from the salary earned during the marriage. Courts> in Illinois, under these circumstances, have considered an employed spouse's contractual right to a pension plan as marital property subject to division. (In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 397 N.E.2d 511.) Petitioner was awarded the home of the parties, the household furnishings, the joint bank account and was to remain beneficiary on the respondent's life insurance policy until the last child reached majority. Respondent was awarded the pension fund, the stock in Dealer Tire and Supply, his bank account and the other personal property he was to receive because of the stipulation. Respondent also had real estate valued at $5,000 to $6,000 which he had acquired through inheritance and which was not marital property under the provisions of section 503(a)(1) of the Act. On the other hand, the home of the parties was acquired after their marriage and, therefore, constituted marital property.

• 1 The two major assets which the parties held as marital property were the house and the pension plan, both of which had a value of approximately $25,000. The property division therefore was of substantially equivalent value to petitioner and respondent. A precisely equal divison of property is not required. (In re Marriage of Stallings (1979), 75 Ill. App.3d 96, 393 N.E.2d 1065); and since the wife was awarded custody of the minor children, it was appropriate to award her the marital home and to award the husband other marital assets. Thus, we find no error in this regard.

Respondent secondly contends that the award of $450 a month maintenance was improper because the order of October 31, 1977, did not specify the bases for the award as required by section 504(a) of the Act. Subsequently when it ruled on respondent's post-trial motion, the trial court entered a nunc pro tunc order specifically finding that petitioner was entitled to maintenance under section 504(a)(1) and (3). Respondent now argues that a nunc pro tunc order can be used only to correct ministerial omissions in orders and cannot be used to supply findings not made by the court in the first instance, citing Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Construction Co. (1967), 83 Ill. App.2d 320, 227 N.E.2d 562.

It is not necessary for us to consider the propriety of the nunc pro tunc order, because we do not agree that it was necessary for the trial court to specifically designate that portion of section 504(a) upon which it founded the award of maintenance. When the basis for an award of maintenance has been established in the record, explicit findings as to the statutory bases by a ...

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