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In Re Marriage of Clearman

OPINION FILED JUNE 30, 1981.

IN RE MARRIAGE OF TIMOTHY E. CLEARMAN, PETITIONER-APPELLANT, AND JILL E. CLEARMAN, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Rock Island County; the Hon. DAN H. McNEAL, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Petitioner in this dissolution action, Timothy Clearman, appeals from the judgment of the circuit court, upon remandment from this court (In re Marriage of Clearman (1980), 85 Ill. App.3d 584, 407 N.E.2d 189), whereby the circuit court awarded respondent Jill Clearman virtually the entire assets of the parties, without debt obligations, and awarded Timothy Clearman scant assets and the debt obligations. A similar distribution was ordered previously in this case, which order and judgment were reversed and the cause remanded for reconsideration with directions for the court to make explicit findings of fact. (In re Marriage of Clearman (1980), 85 Ill. App.3d 584, 407 N.E.2d 189.) Upon remandment, the court took additional evidence and then made substantially the same distribution as it had before.

The trial court also made specific findings of fact and expressly stated the basis for its decision. On this second appeal from that order and judgment, Timothy Clearman argues: (1) that the division of marital property by the court was inequitable and not in just proportions; (2) that the court erred in characterizing the jointly owned marital residence and certain other assets as non-marital property; (3) that the award of child support was excessive; (4) that the court abused its discretion in awarding respondent attorneys' fees and costs; and (5) that the court erred in reserving the issues of maintenance and medical bill payments. In our prior opinion it was not necessary to fully set forth the pertinent factual background of the parties' marriage. It is necessary in this opinion to do so.

The record reveals that the parties were married on June 12, 1968. Neither brought substantial assets to the marriage, although Jill Clearman had $2,500 in cash and a new Volkswagen. During the first three years of the marriage, Timothy Clearman was in the United States Air Force. Jill Clearman during that time worked at a variety of jobs, mostly secretarial. The couple was unable to save any of their earnings during this period. From the outset of the marriage, the parties commingled their resources in a joint savings account. In 1971, after having been honorably discharged from the Air Force, Timothy Clearman began attending college. During his college attendance, he received both State and veteran's scholarships, aid through the G.I. Bill, and income from part-time work during the year and full-time work during the summers. Jill Clearman, to provide the basic support for the couple, also began work, with Deere & Company as a full-time secretary.

She worked there full time until two weeks before the couple's first child was born in July 1972, and she returned to work shortly thereafter to provide support for the family. In February 1975, while Timothy continued his education, the parties purchased, in joint tenancy, the marital residence which is subject to distribution in this dissolution action. They paid $30,500 for the home, with a downpayment of $8,000 coming from their joint savings account. $3,000 of this was largely her savings and $5,000 from a gift to the couple by her parents, which money had been intended for Jill Clearman's college education. Monthly payments on the mortgage were paid from a joint account, which, until March 1976, consisted largely of Jill Clearman's earnings. They also purchased $2,500 worth of stock, taking it in joint title ownership. Evidence indicated that the $2,500 brought by Jill Clearman to the marriage was also invested in stock, which stock was subsequently sold.

In 1976, upon graduation, Timothy Clearman began employment with John Deere & Company, a position Jill Clearman had aided him in acquiring. She continued her employment until several months before their second child was born in May 1977. She took a leave of absence for the birth and later terminated her employment with Deere. She later returned to part-time work, with United Personnel, after the second child had been born. He continued employment with John Deere.

The parties owned three automobiles at the time of the dissolution, a '62 Falcon, given to Jill Clearman by her parents, a '76 Cutlass, and a '78 Trans Am Firebird. The marital home contained household goods and furnishings, valued at $3,000-$4,000. Both parties participated in the home and house activities, with Jill Clearman's contribution consisting of her chores as mother and wife, as well as some maintenance including painting and wallpapering. Mr. Clearman did the necessary maintenance and improvements on the home.

At the time of the original award in this case, both parties were 30 years old and in good health. Both were capable of supporting themselves through employment. Thereafter, however, and prior to rehearing by the circuit court upon remandment, Jill Clearman encountered tragic and serious health problems. Evidence at the hearing on remandment indicated that she was operated on in October 1979 for a brain abscess. As a result of the operation, her vision has been seriously impaired. She has had a severe narrowing of the visual field in both eyes, which results in her being able to see only straight ahead. The prognosis for future improvement is not good. Also, since the operation she has had other health difficulties, including an unexplained large weight gain and a lack of menstruation. As the trial judge indicated in his written opinion:

"Within 30 days [of the initial judgment] she was hospitalized and had brain surgery, with such tragic results that the healthy person who testified in June and July 1979 was hardly recognizable as the same person in October, 1980. Apparently her speech and thinking processes have been impaired, and she sustained a change of personality and almost a complete loss of vision."

As a consequence of her health problems, she cannot drive a car, read a book, or competently handle many routine everyday tasks. She is able to do light housework and she cooks meals for herself and the children. She now receives a monthly social security disability check for herself and the children. Her other assets, acquired after the divorce, consisted of about $1,200, mostly from gifts by friends during her illness. Medicaid paid for her medical expenses, and she has none outstanding now, although it is uncertain how long Medicaid will continue to provide for those expenses. She has the usual monthly expenses for the maintenance of herself and her children, totaling approximately $900. She is unable to save anything from her disability payments in meeting her monthly expenses.

Timothy Clearman has continued his employment with Deere & Company, earning $27,300 annually. He testified that his monthly expenses are $1,600 and that his salary does not serve to meet those expenses.

Dissolution of the marriage had been previously ordered on Jill Clearman's cross-petition, the court finding that Timothy Clearman had been guilty of extreme and repeated cruelty without cause or provocation and that such action had endangered her life and health. No issue with respect to the dissolution was raised in either appeal. Upon remandment, the trial court, based upon the facts as set forth previously, entered a judgment with respect to property distribution, support and maintenance. The court awarded the marital home, including furnishings, to Jill Clearman. Petitioner Timothy Clearman was ordered to make the mortgage payments, with the unpaid balance at the time of rehearing totaling $19,678, to be paid in monthly installments of $160. She was awarded the '62 Falcon and the '76 Cutlass, while he was awarded the '78 Trans Am. She was given custody of the children and he was ordered to pay support in the amount of $50 weekly for each child. He was also ordered to maintain hospital and medical insurance for the two children and to pay dental, medical and hospital payments for them which were not covered by insurance. He was also ordered to maintain life insurance on his life, with the children as beneficiaries, until support and expense payments to them are terminated. She was awarded 100 shares of Shappell stock (valued at $4,000), half of all other stock acquired during the marriage, and the balance of the joint savings account. He was ordered to pay the tuition loan and the charge accounts of the parties. Questions of maintenance and payment of her medical bills were reserved by the court, based upon the uncertainty of continued help to her from Medicaid and Social Security. The court also awarded her attorneys fees and costs in the amount of $2,272.30. From the court's order and judgment, entered after remandment by this court, Timothy Clearman now appeals.

In our last opinion in this case we stated the relevant scope of review on appeal:

"In determining whether the totality of the evidence supports the disparate division of marital property, we are reminded that this matter is within the discretion of the trial court and will not be disturbed on review absent an abuse of that discretion. [Citation.] Nevertheless, where a substantial injustice would result, the perimeters of the trial court's discretion are exceeded. [Citation.] The goal of ...


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