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In Re Marriage of Fryer

OPINION FILED SEPTEMBER 15, 1980.

IN RE MARRIAGE OF SHIRLEY A. FRYER, PETITIONER-APPELLANT, AND ROBERT E. FRYER, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Champaign County; the Hon. WILLIAM C. CALVIN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents yet another aspect of the developing theory, and application of that theory, of sections 503 and 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 503 and 505) (herinafter Act).

The marriage of the parties was dissolved and no questions are raised concerning this part of the proceeding. Thereafter the trial court held a hearing on the disposition of their property and entered an order of division. Subsequently the petitioner filed a petition for reconsideration in which she alleged that the trial court did not consider the relevant factors set forth in section 503(c) of the Act.

The trial court also awarded child support to the petitioner from the respondent. The petition for reconsideration further alleged that the award was not based on the relevant factors set forth in section 505(a) of the Act.

In denying the petition the trial court said: "* * * I considered all the indications therein. * * * I took into consideration what the statute said had to be taken into consideration."

Three basic questions are thus presented by petitioner's appeal: (1) the proper standard to be applied by the trial court in making a division of marital property; (2) the proper standard of review of the trial court's application; and (3) the proper articulation by the trial court of its application.

In making the division of property the trial court first set off to petitioner certain non-marital property, one half of the parties' checking account balance and credit union balance on the date of separation, together with household goods, two automobiles and other chattels, none of which is the subject of this appeal. In the same manner the court set off to respondent certain automobiles, tools, other chattels, and the remaining half of the checking and credit union accounts. None of these items is the subject of this appeal.

Three items constitute the major controversy between the parties. First is the marital home, which had an agreed value of $60,000 but subject to a mortgage of $12,000. Exclusive use of the home was awarded to petitioner until the last child of the parties reached age 20 or became emancipated. There were two children of the marriage, ages 14 and 16 at the time of the order of dissolution. Petitioner was required to make the mortgage payments during her possession of the premises. Upon the conditions being fulfilled regarding the children, each of the parties had the option to buy the other's equity, but if none of the options were exercised, then the home was ordered sold and the net proceeds divided 60% to petitioner and 40% to respondent.

The second item concerns the pension contributions of the respondent. He had been an employee of the University of Illinois for 26 years and had contributed approximately $20,000 to his retirement fund. Since the marriage was of 20 years' duration, approximately 77%, or $15,400 was marital property. The trial court awarded the entire pension fund to the respondent and indicated that he was adjusting the division of the marital home in an effort to equalize between the parties. The petitioner was awarded her pension fund which was estimated at about $1,200. She, too, was an employee of the University of Illinois.

The third item in controversy involves certain sums paid to petitioner by respondent during their separation and a sum saved by respondent during the separation and awarded to him by the trial court. There was evidence that respondent had paid approximately $7,000 to petitioner and the trial court gave him approximately $3,400 which he had saved.

Petitioner claims that the foregoing demonstrates a gross disparity in the disposition of the marital property and that the court should award her the entire equity in the marital home together with the $3,400 given to respondent as savings during separation. We disagree.

Even a cursory examination of the foregoing figures demonstrates that the trial court achieved as nearly an equal division as possible. Respondent received 40% of the $48,000 equity in the home, or $19,200. He also received 77% of his pension contributions, or $15,400 although there was no evidence that the pension contributions had any present value. His total, then, is $34,600.

Petitioner received 60% of the equity, or $28,000. She also received her pension fund of $1,200. Since there was no judgment of legal separation in force at the time of either the $7,000 payments to petitioner or the $3,400 savings by respondent, they may be considered marital property of which petitioner received an overplus of $3,600. Her total, then, is $33,600.

In terms of cash flow, it appears that the trial court also reached an equal division. Respondent's affidavits reveal a monthly net income of $733; petitioner's affidavits show a monthly net income of $483. Petitioner was awarded $220 per month child support. Respondent's cash flow then becomes $513 and petitioner's cash flow becomes $703. Petitioner is required to make the mortgage payment of $190, leaving her $513, the same amount as respondent. However, after payment of the monthly mortgage installment, petitioner is rent-free; the same is not true of respondent. From the balance of the affidavits, ...


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