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In Re Marriage of Aschwanden



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. Jerry L. Patton, Judge, presiding.


On October 6, 1977, after 25 years of marriage, plaintiff, Albert Aschwanden, filed a petition for dissolution of marriage from defendant, Edith Aschwanden. Defendant counter-petitioned for legal separation and, thereafter, for dissolution of marriage. The circuit court of Macon County granted plaintiff's petition and ordered, inter alia, that plaintiff transfer to defendant stocks valued at $120,000 but retain all other marital properties in his possession, that plaintiff pay to defendant, as maintenance, $15,000 per year for 10 years (later modified to 12 years) or until her death or remarriage, and that plaintiff pay $14,000 of defendant's attorney's fee. On appeal by defendant, the appellate court affirmed that portion of the judgment ordering dissolution of the marriage but reversed the remaining portion of the judgment and remanded the cause for further proceedings. (76 Ill. App.3d 680.) We granted plaintiff leave to appeal.

Plaintiff and defendant, both born in Switzerland, were married there on May 31, 1952. Two weeks later they moved to New York, where both were employed. For approximately seven years, defendant worked full time as a dental assistant but left this employment when plaintiff began to work for his present employer, Archer-Daniels-Midland Company (ADM) in Minnesota. Shortly thereafter, defendant became ill and, subsequently, underwent three back operations. In 1963, defendant returned to work part time, again as a dental assistant. In 1969, the couple followed ADM's move to Decatur, Illinois, where they purchased a home for over $70,000. They had household help for about two years, after which defendant did the housework.

Plaintiff was transferred to Brussels, Belgium, in 1973, where his business responsibilities included entertaining customers of ADM. ADM executives often visited the couple's home, and several of them stayed overnight at various times. The couple occupied a two-story, seven-bedroom, four-bath villa, and though they had a full-time, live-in maid, defendant did the shopping and planned the meals.

In March of 1977, when plaintiff was transferred back to Decatur, the couple separated. Defendant rented an apartment in Lucerne, Switzerland, where her family lived. She began looking for work in the autumn of 1977 and, in February of 1978, found employment as a dental assistant. Defendant works 22 hours per week, earning about $500 per month, and testified that she cannot work more hours because of her back ailment. She also testified to her monthly expenses, and to the fact that her standard of living decreased since the separation. The testimony was conflicting as to the employment opportunities in the area where defendant lives, but, according to defendant, she is earning as much money as possible.

Plaintiff's income has increased steadily since he began his employment with ADM. In the three years ending with 1978, his income has ranged from $81,300 to $116,024. Through a stock-option plan for key management employees, under which stock options were awarded on a merit basis, plaintiff has acquired 37,400 shares of ADM stock. The cost of the shares to plaintiff was $129,675.29 and, as of the hearing date, their market value was $565,675. A relatively minor amount of other property is owned by the couple, and all of their property is marital property. (See Ill. Rev. Stat. 1977, ch. 40. pars. 503(a), (b).) The couple's net worth was calculated to be $543,310.57.

At the time of the hearing, plaintiff was 51 years old and defendant was 46. The couple has remained childless.

On April 25, 1978, when the case was called for hearing, section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) required that contested trials be on a bifurcated basis, i.e., 48 hours must intervene between trial on the alleged grounds for dissolution and trial on the remaining issues. The parties, however, agreed to waive the 48-hour requirement and to present evidence at a single hearing.

Following the hearing, the court granted plaintiff's petition for dissolution, finding that plaintiff had proved the material allegations of his petition but that the defendant had failed to prove the material allegations of her counter-petition. The court further found that plaintiff had made a greater contribution to the acquisition of the marital assets than had defendant, but that defendant lacked sufficient resources (from marital property apportioned to her as well as from that attainable through appropriate employment) to provide for her reasonable needs and support, so that defendant should receive maintenance from plaintiff. The order described earlier was then entered.

The appellate court utilized two separate bases for reversing all but that portion of the judgment which ordered dissolution of the marriage. First, the court held that the trial court's property award failed to meet the "just proportions" requirement of section 503(c) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)), and that the maintenance and attorney's fee awards did not make the property award equitable. Second, the court held that under Strukoff v. Strukoff (1979), 76 Ill.2d 53, the 48-hour waiting period under section 403(e) is mandatory and cannot be waived. The appellate court further ordered the trial court, upon remand, to take judicial notice of the value of the stock on the date of the further proceedings.

Plaintiff contends: (1) the trial court did not abuse its discretion in disposing of the marital property between the parties; (2) the appellate court erred by not considering the amount of maintenance awarded in reviewing the division of marital property; (3) the 48-hour waiting period requirement of section 403(e) is not applicable here because the case was not "contested"; and (4) the recent amendment to section 403(e) expressly permits the parties to waive the 48-hour waiting period and should apply to this case.

We note that the portion of the trial court's judgment dissolving the marriage of the parties has not been challenged; it is therefore affirmed.

As to the remaining issue, however, section 503(c) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)), which governs disposition of property, provides in pertinent part:

"In a proceeding for dissolution of marriage or declaration of invalidity of marriage, * * * the court shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct ...

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