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In Re Marriage of Campise



Appeal from the Circuit Court of Cook County; the Hon. John F. Reynolds, Judge, presiding.


Petitioner, Theresa R. Campise (Theresa), instituted a dissolution of marriage action against respondent, Jasper J. Campise (Jasper), on October 24, 1978. On August 21, 1981, the trial court dissolved the marriage. On June 3, 1982, the court awarded temporary maintenance to Theresa and apportioned the marital property. On appeal, Theresa contends that the trial court abused its discretion in determining the amount and duration of maintenance; that the court failed to apportion fairly the marital property; and that the court should have awarded her offsetting marital property in lieu of an interest in Jasper's pension benefits. For the reasons hereinafter stated, we reverse the judgment of the trial court and remand for further proceedings.

Theresa and Jasper were married on October 31, 1954. Their marriage produced three children all of whom are now adults. At the time their marriage was dissolved, the Campises owned a residence in Phoenix, Arizona, which had been appraised at $118,700 when Theresa tried to sell the property sometime in 1979 or 1980. At the June 3, 1982, property hearing, Theresa, who lives in the Phoenix residence, estimated that the house was now worth $125,000; Jasper, who resides in Chicago, estimated the current market value was $130,000. There was an outstanding balance on the residence of approximately $32,000. According to Theresa, the furniture and furnishings in the home were worth $1,500.

The Campises purchased a parcel of vacant real estate in New Mexico for $2,100 but stipulated that as of the June 3, 1982, hearing the market value of this property was unknown. The Campises also owned common stock valued at $5,450. Theresa's attorney held in escrow $949, which sum represented the parties' income tax refund for 1978, and Theresa possessed $2,000 to $3,000 in jewelry.

As of June 3, 1982, Jasper, a Chicago police officer for more than 30 years, was eligible to retire from the department and receive a pension from the Policeman's Annuity and Benefit Fund. Arthur Harris Tepfer, a consulting actuary who was a witness for Theresa and was familiar with Jasper's pension rights, testified that Jasper's interest in the pension was 100% vested, i.e., nonforfeitable. Both Jasper and Tepfer testified that Jasper could not elect to receive a lump sum payout of his pension benefits in lieu of monthly payments. Jasper also testified that he could not assign his right to receive benefits or use his anticipated benefits as collateral for any purpose. The exact amount of the pension benefit Jasper will receive depends on the date of his retirement and whether he is then married.

The parties stipulated that Jasper had to his credit in the pension fund $28,036.49, which represented the annuity and benefit fund deductions from November 1, 1954, the day after the Campises were married, to February 15, 1982. (The record does not establish the significance of this latter date.) The Campises also stipulated that as of June 1, 1982, Jasper would be eligible to receive a monthly pension payment of $1,335.78 if he retired. Using that figure, Tepfer estimated that the "lump sum actuarial equivalent present value" of Jasper's accrued benefit rights as of June 1, 1982, was $222,785.93. According to Tepfer, the "lump sum actuarial equivalent present value" is an actuarial concept representing the value of a particular series of payments converted into present-day dollars.

At the time of the June 3, 1982, property hearing, Theresa, age 51, was a high school graduate with no further educational or technical training. Theresa had been employed as a secretary until 1969, but she testified that she could not now work as a secretary unless she received additional secretarial training. She also testified that she stopped working in 1969 on the advice of her physician and that she presently is unable to work because she suffers medical problems with her back and neck which prevent her from sitting in one position for any extended period of time. Theresa undergoes physiotherapy several times a week and she also consults a psychiatrist, a neurologist and an orthopedist. Theresa takes regular medication.

Theresa testified that her monthly expenses were approximately $1,440 and that she has no source of income other than the $875 due from Jasper every month under an April 17, 1979, temporary maintenance award. She uses $375 of that amount for the monthly mortgage payments on the Phoenix residence and the balance of $500 goes towards her living expenses. In order to meet those expenses, Theresa was compelled to borrow money from her parents and to spend the proceeds from a $5,000 personal injury settlement she had received. Theresa owned no stocks or bonds in her own name and she had approximately $300 in her checking account.

Jasper, age 54, testified that he worked full time as a Chicago police officer and also worked part time for the National Broadcasting Company. His net monthly income from both jobs was $2,094 and his monthly expenses, including his obligations under the temporary maintenance award, were $1,954. On December 20, 1980, Jasper suffered a heart attack and was still receiving therapy at a local hospital as of June 3, 1982.

At the conclusion of the property hearing, the trial court found that despite her various medical problems and the fact that she had not worked for some time, Theresa nevertheless had the ability to work. The court awarded her $500 per month in temporary maintenance for a period of five years. Theresa also received the New Mexico real estate, all personal property in the Phoenix residence, half of the money held in escrow and $534 per month from Jasper's pension whenever Jasper retired. The $534 represents 40% of the $1,335.78 monthly benefit Jasper would be entitled to receive if he had retired on June 1, 1982. Jasper was awarded all of the common stock, the balance of his pension, the remaining half of the escrow fund and all personal property in his possession.

The trial court ordered that the Phoenix residence be placed on the market for sale within 30 days after the judgment for dissolution was entered. Jasper was directed to continue making the mortgage payments until the residence was sold. Following the sale, Jasper would be credited for the principal portion of all mortgage payments made by him since August 21, 1981, the date on which the court dissolved the marriage, and the balance of the proceeds would be divided equally between the parties. Theresa had exclusive possession of the Phoenix residence until it was sold. A written order conforming to the court's findings and division of marital property was entered on July 6, 1982, from which Theresa appeals to this court. The order requiring sale of the Phoenix residence was stayed pending the disposition of this appeal.

• 1 Theresa first contends that the trial court abused its discretion in determining the amount and duration of maintenance. Once the trial court has ascertained that maintenance is appropriate, a finding which is not challenged here, it must consider the following factors in fixing the duration and amount of maintenance:

"(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently * * *;

(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to ...

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