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In Re Marriage of Rimmele

OPINION FILED DECEMBER 7, 1981.

IN RE MARRIAGE OF GERALD R. RIMMELE, PETITIONER-APPELLEE, AND KATHLEEN A. RIMMELE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Petitioner Gerald R. Rimmele filed a petition for dissolution of his marriage to respondent Kathleen A. Rimmele. After the denial of respondent's petition for temporary allowance, the cause proceeded to a bifurcated hearing in the circuit court of Will County. Respondent appeals from the judgment of the court regarding the disposition of marital property and the denial of maintenance and attorney's fees.

The Rimmeles were married in 1970 and have no children. Petitioner, 37, is in good health and is employed by Amaco Chemical Company, where he earns approximately $24,000 a year as a maintenance mechanic. Respondent, 30, is epileptic and had been employed for a short while by the International Order of Foresters, where she had earned nothing as a commission salesperson. Petitioner has been employed by Amaco for 13 years, while respondent has only worked sporadically for minimal wages. Her most recent employment prior to separation was a $2.60-per-hour clerk at a donut shop. Additional facts will be discussed in conjunction with the issues to which they are germane.

Regarding the disposition of marital property, respondent advances two contentions. She initially contends that the trial court erred in its valuation of the property, and subsequently contends the court erred in its percentage distribution and manner of payment.

Respondent's contention of error regarding the valuation of marital property concerns petitioner's pension and stock option plans. Considering first the valuation of the pension plan, the trial court's task was to determine its present value. (See In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 662, 397 N.E.2d 511, 519.) The parties stipulated to present values at discount rates ranging from 5% to 12%. The court elected to use the figure corresponding to 8%, and respondent argues 5% would produce a more accurate valuation.

Any discussion of the approaches to the selection of a discount rate for purposes of calculating present value would be unsupported by the record, as would econometric forecasts of interest rates for the relevant period. Under these circumstances, and considering the long-term secular trend of interest rates, we find no basis for characterizing the court's decision as error.

Considering next the valuation of petitioner's profit-sharing plan, the trial court arrived at a net value of the plan after allowing for petitioner's incremental income tax liability. This liability was triggered when petitioner unilaterally withdrew over $28,000 from the plan which, after setting aside $10,000 for taxes, he used to gamble, take a weekend trip, and purchase a vehicle for his brother. Respondent argues that, under these circumstances, the tax liability should not have been deducted from marital property.

• 1 In re Marriage of Emken (1981), 86 Ill.2d 164, 427 N.E.2d 125, considered the appropriateness of reducing the value of marital property by the amounts which the respondent would be required to pay in income tax on a Keogh plan if he were to terminate it, and the penalties which would be sustained in the event certificates of deposit were withdrawn before maturity. The court stated that "[t]here is no evidence in this record that either action was made necessary by reason of the judgment entered in this case." (In re Marriage of Emken (1981), 86 Ill.2d 164, 167, 427 N.E.2d 125.) It concluded that it was improper to reduce the valuation in anticipation of the possible losses. While the tax liability herein is an established reality, it likewise was not occasioned by the judgment in this cause; moreover, it was the result of unnecessary unilateral action. Respondent did not share in the fruits of the withdrawal, and we find, under these specific circumstances, she should not share in paying its concomitant incremental tax liability. As this cause must thus be remanded, we direct the trial court to include the entire amount of the withdrawal as marital property.

Respondent's second contention regarding the disposition of marital property is that the trial court erred in awarding her one-third of the marital estate, payable by petitioner at the rate of $100 per week. The court further ordered that the initial 104 payments be payments of principal only, thus extending to petitioner an interest-free loan of respondent's share of marital property.

The disposition of marital property is governed by section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)), which provides, inter alia, that the court "shall divide the marital property without regard to marital misconduct in just proportions considering all relevent factors, including:

(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 ...


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