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In Re Marriage of Schriner

OPINION FILED SEPTEMBER 11, 1980.

IN RE MARRIAGE OF LELA J. SCHRINER, PETITIONER-APPELLEE, AND DONALD J. SCHRINER, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Carroll County; the Hon. RICHARD DeMOSS, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Respondent, Donald J. Schriner (husband), appeals from those portions of a divorce decree which distributed the parties' property and ordered respondent to pay maintenance and attorney's fees to petitioner, Lela J. Schriner (wife).

The parties were married on July 4, 1970. Wife and her two children from a former marriage moved into husband's farmhouse. On September 30, 1972, the parties had a son, Terry Schriner. At the time of the parties' marriage, husband owned the farmhouse and 12 acres which he had purchased in 1966 for $10,000. In addition, he had over $2,500 in his checking account and $1,600 in savings. Husband also owned a truck, an automobile and various farm equipment and livestock. Wife brought with her into the marriage various household goods and an automobile. Three to four days prior to the marriage the parties selected a bedroom set which was purchased by husband. The set was delivered after their marriage.

During the marriage the parties made substantial improvements to the marital home. The house was reroofed, new siding was applied, a new furnace installed, the kitchen and living room were paneled, the bathroom was remodeled and the porch enclosed. Wife testified that she assisted husband with these jobs, and in addition she and her mother wallpapered two bedrooms, the hallway, the stairs, and the den.

Sometime during the marriage, the parties purchased a house at 210 East Franklin (Franklin property) for $6,000. The property is presently valued at $10,000 to $15,000, and is rented for $100 per month.

Wife left husband on December 26, 1978. At the time she left, there was $4,000 in the checking account, $200 in savings, a $1,000 C.D. and a $2,000 C.D. The savings account was in both husband's and wife's names; the checking account and the C.D.'s were in husband's name only. Shortly after wife left, husband cashed the $2,000 C.D. and used the money to purchase an automobile, to pay his attorney's fees and his 1978 income tax.

Wife filed suit for divorce on December 26, 1978. The hearing on the grounds was held on February 23, 1979, and the property distribution hearing occurred on March 19, 1979. The property hearing disclosed that husband is a self-employed carpenter earning $5.50 per hour. Husband claims he earns $7,000 to $9,000 per year, while wife claims he earns $10,000 to $12,000 per year. Wife claims husband's 1978 tax returns, which indicated he earned $7,413.20, were falsified, and that he did not declare his cash income. Husband admitted not reporting $150 cash income in 1978. Husband testified his expenses were approximately $325 per month.

At the time of the hearing, wife was earning $65 to $75 per week net as a cashier at a supermarket. She is presently working for a radio station earning $78 per week net plus commission. Her first month's gross income including commission was $460. Wife did not work during the marriage, apparently at husband's insistence.

There was little specific evidence of wife's expenses presented at the hearing. However, the wife testified that she could not make ends meet with the income she was receiving at the time of the separation. At the property hearing, wife stated that she paid $150 per month rent and $10 per month for medicine for her son. Finally, the testimony disclosed that there were no debts of the marriage, and all property was unencumbered.

On April 2, 1979, the trial court entered judgment dissolving the parties' marriage. Custody of the parties' minor child was given to wife, and husband was ordered to pay $40 per week in support and $15 per week in maintenance. Husband was awarded the farm and house as his own non-marital property, while wife was awarded the Franklin Street property. In addition, wife was awarded the three-piece bedroom set and $2,500 in cash, the latter representing half of the parties' savings at the time of the divorce. Husband was ordered to pay $300 of wife's attorney's fees and $72 in court costs.

On July 30, 1979, the trial court denied husband's motion for a new trial, and on August 20, 1979, husband filed his first notice of appeal. Then on August 21, 1979, the trial court ordered respondent to pay $1,500 for petitioner's attorney's fees on appeal. On August 2, 1979, respondent filed an amended notice of appeal adding a challenge to the award of attorney's fees on appeal.

Four issues are presented for review: (1) whether the trial court erred in its characterization of the parties' marital and non-marital property, (2) whether the trial court's distribution of marital property was an abuse of discretion, (3) whether the trial court's award of maintenance to petitioner was an abuse of discretion, and (4) whether the trial court's award of attorney's fees was an abuse of discretion.

I.

• 1 Under the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act, the trial court is first required to divide the parties' property into marital and non-marital property. The court must then assign each spouse his own non-marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503.) All property acquired during the marriage is presumed to be marital property unless the presumption is overcome by a showing that it falls within one of the statutory exceptions, including property acquired before marriage, and property acquired in exchange for property acquired before ...


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