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In Re Marriage of Hellwig



APPEAL from the Circuit Court of Cook County; the Hon. RENE GOIER and the Hon. CHARLES J. FLECK, Judges, presiding.


Petitioner, Betty Hellwig, and respondent, Werner Hellwig, were married in 1942. Dissolution proceedings were instituted in 1977 and, on September 12, 1979, the trial court entered a judgment dissolving the parties' marriage and disposing of contested matters of property, maintenance and attorney's fees. The division of marital property was later modified by the court sua sponte. The court also appointed a sequestrator to collect assets, funds and property belonging to respondent. Petitioner appeals from certain portions of the property disposition, the award of rehabilitative maintenance and the denial of attorney's fees. Respondent cross-appeals from other aspects of the property distribution, the maintenance award and the appointment of a sequestrator. In a separate action, respondent appeals from an order allowing petitioner prospective attorney's fees for defense of the cross-appeal.

At the time of trial, petitioner was 55 years old and respondent was 60. The parties had two adult children. During most of the marriage, petitioner was a homemaker. She had no special skill, training or education, and is not currently employed. She recently underwent several surgeries. Respondent was a tool and die maker and a proprietor of such a business. In 1974 he entered semiretirement. Early in the marriage, respondent developed a sole proprietorship called Hollywood Tool & Gauge Company. In 1954 and 1956, respondent formed Hudson Tool & Die Corporation and Hollywood Perforator, Inc., respectively, and the sole proprietorship ended. Respondent was president of Hollywood until about eight years ago and presently acts as a consultant. He has always been Hudson's president and continues to be so employed at a salary of $300 per week. Beginning in 1983, he will receive a monthly pension of $99.40 from Hudson. Petitioner played no active role in either company. Although the parties entered the marriage with limited assets, they steadily prospered and in later years enjoyed an affluent lifestyle. In the last few years, they spent $200,000 annually on living expenses, travel, gifts and items of personalty.

The trial court classified the principal marital assets as follows: a marital residence in Lincolnwood, owned in joint tenancy, having a fair market value of $255,000 and a mortgage of $12,000; household furniture, furnishings and fixtures, 6,750 shares of Hollywood, all but 100 of which were held in respondent's name; 129 1/2 shares of Hudson, held in respondent's name; respondent's undivided one-half interest in property located in Rosemont, from which monthly rental income of $800 is derived; petitioner's vacant lot in Hawaii purchased for $3,000; and various stocks, jewelry, furs and other items of personalty in their respectives names or possession.

The final judgment found that petitioner was entitled to one-half of the marital assets as her just proportion and that respondent had dissipated marital assets worth $415,545. The marital property was allocated as follows: Petitioner was awarded 3,375 shares of Hollywood; 64 3/4 shares of Hudson; sole and exclusive possession of the marital residence, free and clear of all encumbrances, until she attained age 65, remarried, or either party died, at which time the home would be sold and the net proceeds divided equally between the parties; the household furniture, furnishings and fixtures; one-half of respondent's property in Rosemont; an automobile leased by Hollywood; the cash amount of $50,000; and the balance of the assets in her name or possession. Respondent was awarded the remaining 3,375 shares of Hollywood and 64 3/4 shares of Hudson; the remainder of his interest in the Rosemont property; and the balance of the assets held in his name or possession. The court did not ascribe a specific value to any item of marital property. Each party was held responsible for his or her own attorney's fees. Concluding that petitioner was not then qualified to support herself and was entitled to reasonable maintenance, the court also awarded petitioner rehabilitative maintenance for five years in a sum equal to 40% of respondent's net monthly income.

Two days later, the trial court sua sponte suspended the effect of, and scheduled a hearing to clarify, the provision awarding the marital residence to petitioner. At this hearing, the court sua sponte modified the provision. As modified, petitioner was required to pay the balance of the mortgage, utilities, ordinary maintenance, taxes, insurance and other obligations incident to possession of the marital residence. At the same hearing, the court also sua sponte modified the provision awarding 50 percent of the shares of Hollywood and Hudson. Under the modification, these shares were to be held as security for respondent's payment to petitioner of 40 percent of the value of respondent's ownership interest in Hollywood and Hudson; the value of respondent's ownership interest was not set forth. Although this disposition represented a departure from the 50 percent division of stock contained in the court's original pronouncement, memorandum of judgment and final judgment order, the court announced that giving the shares to petitioner only as security was always its intention. The parties then filed their respective notices of appeal.

Thereafter, respondent filed a petition to set an appeal bond and stay the enforcement of the judgment, and petitioner sought a change of venue. The trial judge recused himself and the cause was transferred to Judge Charles J. Fleck. Petitioner then requested and, after an evidentiary hearing, was granted $6,800 in attorney's fees for defense of respondent's cross-appeal. Respondent's appeal from the allowance of such fees followed.

• 1 We initially consider the issues concerning the disposition of the parties' marital property under the guidance of the relevant factors set out in section 503(c) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. In re Marriage of Smith (1980), 90 Ill. App.3d 168, 412 N.E.2d 985.

• 2 Petitioner first contends that the trial court abused its discretion in modifying the final judgment so as to award her 50 percent of the shares of Hollywood and Hudson only as security for respondent's payment of 40 percent of the value of his ownership interest in those corporations. She argues further that the equal, in-kind division of the corporate stock originally ordered is the only distribution which is in just proportions. Clearly, a trial court has jurisdiction for 30 days after entry of a final judgment to modify the judgment sua sponte in order to do justice between the parties. (Welch v. Ro-Mark, Inc. (1979), 79 Ill. App.3d 652, 398 N.E.2d 901.) Our examination of the record convinces us, however, that the modification in the present case was erroneous.

• 3 As even respondent acknowledges, the court erred in failing to determine the value of respondent's ownership interest in the two corporations. Except where the parties are awarded percentage interests in a particular item, valuation of marital property is necessary to reach a just apportionment. (In re Marriage of Boone (1980), 86 Ill. App.3d 250, 408 N.E.2d 96; In re Marriage of Donley (1980), 83 Ill. App.3d 367, 403 N.E.2d 1337.) In the absence of evidence of such valuation, there is no basis upon which the reviewing court can determine the propriety of the directed property distribution. See In re Marriage of Olsher (1979), 78 Ill. App.3d 627, 397 N.E.2d 488; see also In re Marriage of Leon (1980), 80 Ill. App.3d 383, 399 N.E.2d 1006.

Here, two experts offered disparate estimates of the value of respondent's shares of Hudson. One witness estimated the value of the stock at $800,000 while the other gave the value of $550,000. The court did not fix the value of respondent's Hudson stock. Moreover, absolutely no evidence was adduced as to the value of the Hollywood stock. Consequently, there is no basis upon which to ascertain the amount owed to petitioner or to determine whether the property distribution was in just proportions.

• 4, 5 Furthermore, awarding the stock merely as security for payment, where no amount, manner or time for payment is set forth is tantamount to an illusory division. (See In re Marriage of Gehret (1978), 41 Colo. App. 162, 580 P.2d 1275.) The efficacy of a property distribution results from placing in the hands of each party a definable or ascertainable portion of some attributes of ownership. (In re Marriage of Gehret.) In distributing property, courts> should seek a high degree of finality so that parties can plan their future with certainty and are not encouraged to return repeatedly to the courts>. (In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 398 N.E.2d 126.) Under the present order, respondent retained all the incidents of ownership while petitioner was left with only the vague expectation that at some time, in some manner, she would receive some unascertained amounts of money.

• 6 While we thus agree with petitioner's contention that the modified disposition of the stock is erroneous and must be reversed, we are not in accord with her further position that an equal division of the stock itself is the only equitable distribution. Where property is not susceptible to division in kind or such division is inequitable, the court may, in its discretion, award the property to one spouse subject to an obligation to pay the nonacquiring spouse for the interest lost. Such repayment may be arranged by offsetting other marital property or by cash payments, either in a gross amount or installments. (In re Marriage of Lee.) Division of a business or close corporation would appear particularly disadvantageous where it would necessitate ongoing business association between the parties and where, as here, the evidence reflects animosity between the parties or an inability of the parties to cooperate on major business or financial matters. See generally In re Marriage of McMahon (1980), 82 Ill. App.3d 1126, 403 N.E.2d 730.

Arguing that the corporations accounted in large measure for the parties' lavish lifestyle, petitioner urges that awarding her a cash amount instead of the stock itself would thwart the Act's purpose of providing for post-marital support through property distribution rather than maintenance. (See Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 376 N.E.2d 1382.) The record reveals that although the corporations did not cover the parties' basic living expenses, certain benefits did accompany ownership: Hollywood owns a condominium in Hawaii which the parties rented at a price of $2,400 per year; Hollywood leased automobiles for the parties' use; the companies paid membership costs in several country clubs. While such benefits may be considered in compensating the nonacquiring spouse for his or her interest lost, we do not believe they, in themselves, compel an in-kind distribution.

From our review of the record, we cannot say that awarding the corporate stock to respondent subject to an obligation to pay petitioner an appropriate sum would constitute an inequitable division. Unlike petitioner, respondent is directly involved in these closely held corporations. This method of dividing the marital property would serve to disengage the parties' financial affairs as well as reduce the likelihood of interference with one another or with the operations of the companies. We note further that after considering the evidence, the court found that petitioner was entitled to one-half of the marital property. The relevant factors amply support an equal apportionment of marital property. Without evidence of the value of the corporate stock, however, we are unable to determine whether a cash ...

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