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In Re Marriage of Mcneeley

OPINION FILED AUGUST 16, 1983.

IN RE MARRIAGE OF DORIS MCNEELEY, PETITIONER-APPELLEE, AND MARTIN F. MCNEELEY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1983.

Respondent, Martin F. McNeeley (Martin), appeals from a judgment dissolving his 32-year marriage to petitioner, Doris McNeeley (Doris). On appeal Martin contends that the trial court abused its discretion in awarding to Doris the majority of marital assets and exclusive possession of the marital home for a period of five years; in awarding to Doris permanent maintenance; and in requiring Martin to pay $16,000 for Doris' attorney fees. Doris has cross-appealed from that portion of the judgment which requires her to pay $1,856 to her former attorney. For the reasons hereinafter stated, we reverse in part and remand for further proceedings.

Doris filed a petition for dissolution on June 9, 1980, but on May 21, 1981, she was granted leave to withdraw her petition for dissolution and to file a petition for legal separation and temporary maintenance. On May 22, 1981, the trial court ordered Martin to pay Doris $325 per week ($1,407.25 per month) as temporary maintenance and, in addition to pay the $642.54 monthly mortgage payment on the marital home in Deerfield, Illinois. On November 12, 1981, Doris was granted leave to withdraw her petition for separation and to file a petition for dissolution. Trial was held on November 18, 1981.

The parties were married on January 20, 1950, and separated on December 31, 1979, when Martin vacated the marital home. Three children were born to the marriage. At the time of trial, all had reached the age of majority. The parties' youngest child, David, age 20, was employed and living with Doris. There is no evidence that David contributed to household expenses. Doris, age 53, is a high school graduate with an additional three weeks of secretarial training. She stated that she suffers from arthritis in her hands and legs and bursitis in her shoulders but she was not receiving treatment or medication for these conditions. Doris had not been employed during the marriage but stated on cross-examination that prior to the marriage she was employed for 1 1/2 to two years as a traffic manager at a Cleveland radio station. Doris admitted that she has not sought employment since initiating this action. Her only source of income was the temporary maintenance payments she received from Martin. An unsigned affidavit listing Doris' personal monthly expenses was made a part of this record. In this list of expenses, which totaled $4,050, was a $650 monthly mortgage payment, which at the time of trial was being paid by Martin, and $1,071 as estimated State and Federal income tax based on a projected income of $48,600 per year. *fn1 Doris stated that many of the expenses listed by her were estimated or were listed in anticipation of the money which she hoped to receive as a result of these proceedings.

Martin, age 55 and in good health, is a high school graduate with one year of college education and at the time of trial was employed as a television and radio announcer and newscaster by WGN Continental Broadcasting Company in Chicago. Martin introduced evidence which established that his projected gross income for 1981 was $96,000 to $97,000 ($5,650 net income per month). This projection included Martin's base salary and additional fees for special television and radio announcements. Martin filed an affidavit listing monthly expenses totaling $2,442, although he testified that his total monthly personal expenses were about $1,300. When the latter figure is combined with the mortgage and temporary maintenance payments, it appears that Martin's monthly expenses were approximately $3,349.

A stipulation admitted at trial shows that the parties' marital assets included the marital home, which on March 13, 1980, was appraised at $160,000 with a $24,000 mortgage; household furniture and furnishings valued at $20,000; Martin's pension valued at $26,000 (without regard to tax or withdrawal consequences); Doris' automobile worth $4,000 with no liens, and Martin's automobile worth $11,000 with a $10,000 lien; and $2,000 worth of stocks.

In addition to the marital assets, the testimony reveals that Doris had approximately $1,000 in cash remaining from her $1,250 share of the 1980 tax refund, and Martin had about $400 in cash in a savings account and $2,000 in cashier's checks, $1,250 of which was his share of the 1980 tax refund. Martin also owned about $2,500 in apartment furniture and furnishings.

At the conclusion of the testimony, the trial court took the case under advisement without argument. On December 23, 1981, the court rendered its findings but reserved entry of judgment pending a hearing on the issue of attorney fees. The trial court found that all of the assets of the parties were marital and were valued in accordance with the parties' stipulation. The court found that Doris' monthly expenses were $4,000 and that, in accordance with Martin's testimony, his monthly expenses were approximately $3,000. Because of the length of the marriage, the evidence of Martin's "present income" and the fact that Doris was unemployed, the court awarded to Doris permanent maintenance of $3,200 per month ($739 per week). The trial court further awarded the marital home to Doris for five years or until she remarried, requiring that she pay the mortgage with reimbursement upon sale of all principal reductions made by her on the mortgage. After five years the marital home was to be sold, Doris to receive 65% of the proceeds and Martin to receive 35% of the proceeds. Each party was to share in the cost of any "major repairs" to the marital home in proportion to their respective interests in the sale proceeds. The court ordered that the marital home be placed in a land trust with the parties as tenants in common according to their respective interests.

The trial court also awarded to Doris the furniture and furnishings in the marital home and her automobile. It awarded to Martin his interest in his pension, the stocks and his automobile.

A hearing was held on March 31, and April 9, 1982, on the petition for attorney fees, following which the trial court ordered Martin to pay $16,000 to Doris' attorneys. Martin was required to pay the attorney fees in two equal installments, the first within 20 days and the second within 120 days of the entry of judgment. In addition, Doris was ordered to pay her former attorney $1,856 in four equal installments within 120 days of the entry of judgment.

A judgment for dissolution, incorporating the trial court's findings and the award of attorney fees, was entered on July 21, 1982, from which both parties now appeal.

I

• 1 Martin first challenges the property distribution made by the trial court and contends that the court abused its discretion in awarding to Doris the majority of the marital assets and exclusive possession of the marital home for a period of five years. Martin argues that this apportionment was arbitrary and failed to consider the relevant factors set forth in section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)).

It is well established that the touchstone of a proper apportionment is whether it is equitable in nature. (In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 1132, 398 N.E.2d 126.) When apportioning marital property, the trial court must consider all ...


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