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In Re Marriage of Hobbs



Appeal from the Circuit Court of Bureau County; the Hon. James J. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Petitioner Frances Delores Hobbs filed a petition for dissolution of her marriage to respondent James Hobbs. After a bifurcated hearing, the circuit court of Bureau County dissolved the marriage and entered the various awards from which this appeal and cross-appeal are taken.

The Hobbs were married on June 14, 1958. Petitioner, 45, is employed as a factory worker for Grayline Housewares and earns approximately $168 per week. With 10 years of schooling, she came to the United States from Ireland in 1957 to serve as a domestic. After her marriage a year later, and with respondent's consent, petitioner terminated her employment as a sales clerk. During the early years of the marriage, she was homemaker to the family unit of five and primarily responsible for raising three children and performing household tasks, including canning, gardening, and yard maintenance. During the later years of the marriage, she remained primarily responsible for these tasks while at the same time working 10 to 12 hours a day in a restaurant which, contrary to her wishes, respondent had decided to purchase. Petitioner lives in a 2 1/2-room apartment consisting of a living room with a pull-out bed, small kitchen, and bath. It is uncontested that she has no automobile, a used black-and-white television, and buys only used clothing from garage sales or a resale shop. Nonetheless petitioner's weekly expenses of $140 exceed her net income of $139.79.

Respondent, 49, is employed as a supervising communications technician for the Illinois State Police and earns approximately $378 per week in that capacity. Throughout the marriage, he customarily maintained part-time employment from which he most recently earned an additional $24 per week. Respondent has had two years of specialized training in electronics and served as a radio operator in the Air Force. He lives in the six-room former marital residence with the Hobbs' minor daughter, owns an automobile, and recently purchased a new color television set. Other facts will be set forth in our discussion of the issues to which they are germane.

Before we may consider those issues, we must first turn to respondent's motion to dismiss this appeal. Respondent so moves on the basis of several transactions into which the parties have entered. Since the trial court's judgment, respondent has taken out a $10,000 second mortgage on the former family home, paid petitioner's attorney $2,500, and paid petitioner $12,500. The latter amount represents the court's award to petitioner less the allegedly approximate value of the child support she was ordered to pay. Respondent contends that, pursuant to the doctrine of release of errors, this appeal must now be dismissed.

• 1, 2 The doctrine of release of errors provides that a party to a divorce decree cannot accept those portions of the decree which are beneficial to him and afterward prosecute on appeal to reverse those parts which are unfavorable to him, where to do so would place the opposing party at a distinct disadvantage upon a reversal of the decree. (Sullivan v. Sullivan (1979), 68 Ill. App.3d 242, 385 N.E.2d 860 and Kissin v. Kissin (1961), 29 Ill. App.2d 126, 172 N.E.2d 635.) However, in such cases as Royster v. Hammel (1977), 51 Ill. App.3d 710, 366 N.E.2d 535, and Pearson v. Pearson (1976), 42 Ill. App.3d 522, 356 N.E.2d 993, it has been held that where an appellant accepts a share of the proceeds of jointly owned property no benefit is being accepted under the decree since the appellant is merely exchanging interests. Furthermore, according to such cases, the appellee sustains no particular disadvantage, consequently no reason exists for discontinuing the appeal.

• 3 We believe the application of the rule as in Royster v. Hammel (1977), 51 Ill. App.3d 710, 366 N.E.2d 535, is applicable to this case since the appellant's delivery of a quitclaim deed and acceptance of $12,500 represented a transfer of her joint interest in the property and the transaction rather than being of any disadvantage to the appellee was advantageous to him. Unlike Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614, the appellee paid the attorney fees directly to appellant's counsel, a circumstance which was also held in Lemon v. Lemon (1958), 14 Ill.2d 15, 150 N.E.2d 608, to render inapplicable the release of errors rule. Accordingly, we deny the appellee's motion to dismiss the appeal.

The first of the three issues we today address is whether the trial court abused its discretion in its division of marital property. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) provides in part that the court:

"shall divide the marital property without regard to marital misconduct in just proportions considering all relevant 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;

(3) the duration of the marriage;

(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;

(8) the custodial provisions for any children;

(9) whether the apportionment is in in lieu of or in addition ...

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