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In Re Marriage of Kundit



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN F. ROSIN, Judge, presiding.


On February 6, 1981, the marriage of Jack Kundit (Jack) and Lorraine Kundit (Lorraine) was dissolved and the marital property apportioned in the circuit court of Cook County. Respondent, Lorraine, appeals from that portion of the judgment disposing of the marital property and the award of maintenance. She presents the following issues for our review: (1) whether the trial court abused its discretion in its division of the marital property; (2) whether the trial court erred in denying her post-trial motion; (3) whether the trial court abused its discretion in its determination of maintenance; and (4) whether the trial court abused its discretion in denying her motion for a continuance at trial.

For the reasons which follow we affirm in part and reverse in part.

Jack and Lorraine were married on November 5, 1960. Their marriage produced two children: Michael Duke Kundit, who had reached the age of majority at the time of dissolution, and Jack, Jr., 15 years old. Their marriage was dissolved on the ground of Lorraine's constructive desertion.

Jack was employed by United Airlines as a mechanic throughout the marriage. He had a high school diploma, and his net earnings fluctuated from approximately $1400 to $2000 per month depending on the amount of overtime. Lorraine worked for Bell and Howell for approximately 18 months during the marriage. She earned $155 per week net, and she left her job by mutual agreement between herself and her employer.

There is scant evidence in the record regarding the marital assets and their respective values. The marital residence was a four-bedroom house located in Lincolnwood, Illinois. The house had been purchased in 1971 for $33,000 and had an outstanding mortgage of approximately $12,000. The monthly payments on the mortgage were $179. Jack testified that the other marital assets included his credit union account of $200, two boats which were purchased for $1600 but which had a present value of $500, two outboard motors purchased used for a total of $275, 100 shares of Commonwealth Edison stock which he testified was "selling for around eighteen [or] nineteen dollars a share" at the time of the hearing and a used camper purchased for $200.

Lorraine testified that she had obtained a settlement of $4000 for a personal injury suffered in an automobile accident in 1979 and that she spent these proceeds on living expenses and her son's education. Lorraine also claimed that the marital debts included $5750 that she had, over a period of time, borrowed from her stepfather, Casimir Mazur, and which she also had spent on living expenses. Although on January 8, 1981, she testified that she had not signed a note securing this loan, the record discloses that attached to her post-trial motion is a photocopy of a promissory note dated September 1, 1980. The note was apparently signed by Lorraine subsequent to her January 8, 1981, testimony and purports to evidence her debt to her stepfather. Other marital debts included a $350 doctor's bill, $500 owed to Visa, $100 owed to J.C. Penney Co., $100 owed to Texaco, a $100 dental bill, and $201 for homeowner's insurance.

The record reflects no evidence of the value of various marital assets: six life insurance policies on the family members, Jack's pension fund rights and three automobiles, a 1971 Chevrolet and a 1973 Chevrolet, both of which were in the possession of Jack, and a 1976 Buick which was in the possession of Lorraine.

In apportioning the marital property, the trial court awarded to Jack and Lorraine equal shares of the marital residence with Lorraine to have exclusive possession until the minor child reached the age of majority. Although there is no evidence in the record to establish their value, the court awarded to Lorraine all of the household furnishings. She also received the two boats, the Buick and the proceeds of her personal injury settlement. She was granted $280 per month in child support and for one year only $70 per month in maintenance. The court placed a value of $9500 on the personal property awarded to Lorraine. Where there is no evidence in the record concerning the value of a particular asset, the trial court apparently based its valuation on the court's own estimate.

Jack received the remainder of the personal property including the balance of his account with the credit union, the rights to his pension fund, the two Chevrolets, his tools, the camper and the Commonwealth Edison stock. The total value of these assets as determined by the trial court was $4500. The court also ruled that the parties were to share the marital debts equally.


Lorraine contends that the trial court abused its discretion by apportioning the marital property without first ascertaining the value of certain marital assets.

Initially Jack contends that by her failure to offer any evidence on the value of such assets, Lorraine has waived her right to appeal on this issue. In support of his contention Jack relies on In re Marriage of White (1981), 98 Ill. App.3d 380, 424 N.E.2d 421, and In re Marriage of Leon (1980), 80 Ill. App.3d 383, 399 N.E.2d 1006.

• 1 It is apparent from a reading of both White and Leon that rather than support Jack's waiver argument, these cases oppose his position. White, which relied on Leon, dealt with the sufficiency of evidence needed to establish the value of a professional corporation. The court there rejected the husband's argument that since the wife did not offer any evidence as to the value of the corporation, she failed to preserve this contention for review. The court stated that it could not "equate lack of sufficient evidence with waiver * * *." (98 Ill. App.3d 380, 383.) In accordance with White we hold that Lorraine's failure to present evidence of the value of ...

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