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In Re Marriage of Hyland

OPINION FILED APRIL 7, 1981.

IN RE MARRIAGE OF JANET A. HYLAND, PETITIONER-APPELLEE, AND THOMAS R. HYLAND, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Boone County; the Hon. DAVID R. BABB, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Respondent, Thomas R. Hyland, appeals from the judgment of the circuit court of Boone County dissolving his marriage to petitioner, Janet A. Hyland, dividing the property and ordering respondent to pay $25 per week child support. Respondent contests only that portion of the judgment pertaining to the division of property. The record disclosed the respondent and the petitioner were married on March 5, 1960; they have two children, ages 19 and 17. At the hearing to determine the property rights of the parties and to divide the property, petitioner testified that the marital residence had a value of $85,000 with a $53,000 mortgage, but that it was assessed for tax purposes at $93,000. She further averred that respondent was in the business of farming, had a projected income of about $25,000 from his agricultural pursuits, and had additional income from selling seeds, plowing snow, and from working at a newspaper. She indicated that her parents had gifted her with a residential lot valued at about $9,000, but that it was held in joint tenancy by the parties. Respondent's parents had also gifted the couple with a five-acre lot valued at $25,000. She also testified that her parents had given her $3,000 for each of the last two years and that she had had respondent invest this money in stocks so that it would not "just disappear." She testified the stock account, 300 shares each of Eastern Utility and Ohio Edison, was worth about $6,100. She also testified that after she was married, she had cashed in some bonds she had been given by her parents when she was a child, and deposited the receipts in a savings account in her name which currently totaled about $2,100. These savings had been commingled with other funds over the years. She testified that she presently had an annual income of about $18,000 from her self-employment as a draftsman.

Respondent testified he leased a 240-acre farm, 160 acres of which was tillable. The remaining acreage was used for his cattle herd. He and his father leased as a partnership about 100 acres of land which they cultivated along with each of their own farms, and they also custom farmed about 1,000 acres. Respondent's cattle herd was worth about $18,000, in addition to which he expected to realize approximately $8,000 from the sale of some calves. The partnership owned some equipment, and respondent owned some equipment individually. Petitioner's Exhibit No. 1 indicated the equipment in which respondent had a full interest and the equipment in which he had a half partnership interest. Respondent's Exhibit No. 1, a financial statement, indicated that respondent's interest in the equipment was valued at $94,390. This figure apparently did not include any value for a John Deere tractor recently purchased by respondent which petitioner testified cost $53,000. Respondent's reply brief on appeal asserted the parties' testimony was that this tractor cost $35,000, but we were unable to find this figure in the record. Respondent also testified that he had to make a $32,280 annual payment on a $255,000 operational loan from the Belvidere Bank, which was secured by the equipment and also by his father's farmland. Finally, he averred that he had a one-half interest in a $20,398 stock account at the Shearson-Stone brokerage.

During closing argument, petitioner's attorney advised the court that an equitable distribution of the property would be that the court award her the marital residence until her minor son attained the age of 18, that it then be sold, and that the proceeds be divided equally. She added she should be given the lot given to her by her parents, the stock purchased from the $6,000 gift from her parents, the $2,100 savings account, $50 per week child support, and her 1977 Dodge car.

The court found that the 600 shares of stock recorded in petitioner's name were non-marital property of petitioner. It also found the $2,100 savings account in petitioner's name was marital property, and awarded it to the husband. Both parties were found fit to have custody of the minor child and able to contribute to his support. Next, in lieu of maintenance, the court awarded petitioner the marital residence, subject to the existing mortgage of $53,000. The court awarded to each party the real property given by that party's parents. It awarded to respondent the funds and margin accounts or equity accounts existing at the Shearson-Stone office; the entire interest in all the farm equipment, livestock and all other farm-related assets; certain household goods; a 1978 Dodge pick-up truck and a 1970 Dodge car. The court also burdened respondent with the existing $255,000 loan at the Belvidere Bank and ordered him to pay $25 per week child support. Both parties were ordered to contribute equally to the future college expenses of their son, Daniel, and were barred from seeking maintenance from each other in the future.

Respondent's attorney questioned the court's award of the entire marital residence to petitioner when she had only requested half of the proceeds from its sale. The court stated the basis for the award was

"[A]n equitable division of the property, * * * taking into consideration all of the assets of the parties, the potential earning of the parties, the equities of the parties and the contributions of the parties, past, present and also as an award, reasonable award, in lieu of maintenance, giving consideration to the fact that both of the parties were obligated to support the children herein."

The court indicated that petitioner was given the marital residence in lieu of maintenance in order to foreclose any future claims for such relief and in order to facilitate an equitable division of the marital assets. Respondent filed timely notice of this appeal.

Respondent's initial contention is that the court's apportionment of property and indebtedness was against the manifest weight of the evidence and an abuse of judicial discretion. He asserts that the court awarded the petitioner the marital residence in lieu of maintenance when she had not asked for maintenance, and had in fact asked for only half of the proceeds from its sale after her son attained the age of 18; that the court failed to place a value on the farm assets, and that the court awarded petitioner a value of $35,000 equity in the house, while awarding respondent $129,000 more in liabilities than in assets.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503) requires that the court consider when dividing the marital property:

"(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;

(2) the value of the property set apart to each spouse;

(3) the duration of the marriage;

(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable ...


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