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In Re Marriage of Evans



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. John D. Sullivan, Judge, presiding.


Rehearing denied October 19, 1981.

The petitioner, Rae A. Evans, filed a petition in the circuit court of Peoria County for the dissolution of her marriage to the respondent, Duane E. Evans. The circuit court entered a judgment dissolving the marriage on June 15, 1978, and on December 11 the court entered an order disposing of the property held by the parties. The petitioner appealed to the appellate court from the property disposition order. The appellate court, with one judge dissenting in part, reversed the order and remanded the cause (85 Ill. App.3d 260), and we granted the respondent's petition for leave to appeal under Rule 315 (73 Ill.2d R. 315). No question relating to the judgment of dissolution is presented on this appeal.

The parties were married in 1949. There were two children of the marriage, who are now adults and are not living with their parents. The parties separated on January 29, 1978, and on February 1, 1978, the petitioner filed her petition, which alleged that the respondent was guilty of extreme and repeated mental cruelty.

The petitioner was 50 years old at the time of the divorce. She had secured a degree in education in 1972, and had been employed since 1975 as a full-time teacher in a school district in Peoria. Her income for the school year 1977-78 was $11,500. The respondent was 49 years old. He held a degree in mechanical engineering and was employed at the Caterpillar Tractor Company, where he had been hired in 1952. In 1978 he earned $28,000.

The circuit court denominated as non-marital property, and awarded to the petitioner, a parcel of real estate in Iowa which she had inherited in 1960 and had sold under contract in 1973 for $40,000, along with those proceeds of the sale already received, amounting to $24,879. The respondent was assigned a parcel of real estate in Peoria which he had contracted to purchase for a new home.

The court characterized as marital property the jointly owned marital home, which had been purchased in 1956 for $13,900. The record does not show the source of the funds with which the home was purchased. At the time of the divorce $2,500 of mortgage indebtedness remained outstanding. The court found the home to be worth $45,000 and divided it between the parties. The petitioner was given sole title to the home and its furnishings, subject to the obligation to pay the mortgage installments and real estate taxes for 1978 and subsequent years. The respondent was awarded $21,500 as his interest in the residence. The court also divided between the parties three automobiles, 30 shares of stock, and several bank accounts totaling about $17,000.

The circuit court awarded the petitioner a one-half share in some 527 shares of stock in Caterpillar Tractor Company, referred to by the court as "vested," held in the respondent's account in an employees' investment program established by the company. The respondent was directed to pay the petitioner $15,051, this being one-half the value of the stock, calculated at its market price of $57 1/8 per share on the date the judgment of dissolution was entered. The order provided, however, that the respondent need not pay this amount until "the first opportunity that such shares can be released from the Investment Program without penalty." Ownership of the other half of the 527 shares was awarded to the respondent, as were also "all rights to any and all unvested shares."

Both the petitioner and the respondent were participants in pension programs established by their respective employers. The trial court's order, without characterizing the pension benefits as being either marital or non-marital property, provided:

"The respective pension benefits of each of the parties under their respective pension plans or programs with their respective employers shall remain their separate property, and neither party shall have any right, title, or interest in and to such pension or pension benefits or any part thereof of the other party."

The court held that neither party was entitled to maintenance from the other.

A majority of the appellate court held that, with respect to the stock held in the respondent's investment-program account, the trial court should have classified all the stock as marital property, thus including an additional 72 shares, referred to by the majority as "non-vested." The majority also held that the trial court had likewise erred in failing to classify as marital property the pension rights of each party. The majority did not express an opinion as to the value of the "non-vested" shares of stock or of the pension rights, nor did it specify how their value should be determined, an operation which the opinion acknowledged would present "vexatious problems." Instead, it remanded the cause with directions that the circuit court reconsider its property settlement order on the basis of the evidence already before it. 85 Ill. App.3d 260, 264-65.

The majority's treatment of both the shares of Caterpillar stock and of the pension rights rested upon the proposition that any benefits which may be received by one spouse following the divorce, under a contract incident to his or her employment during the marriage, constitute marital property in which the other spouse is entitled to share under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503), even though the benefits in question may never be received by the employee because of the termination of his employment prior to the date when their payment becomes due, as the result of his death or his discharge or resignation. In reaching its decision the majority relied on previous decisions of the appellate court in In re Marriage of Donley (1980), 83 Ill. App.3d 367, and In re Marriage of Hunt (1979), 78 Ill. App.3d 653, and on the decision of the Supreme Court of California in In re Marriage of Brown (1976), 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633.

The third judge of the appellate court panel took the view that the trial court should have included the parties' pension rights as marital property but only to the extent that those rights were vested. He considered that the trial court was correct, however, in refusing to treat as marital property any additional stock in the respondent's investment account, ...

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