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In Re Marriage of Carney

OPINION FILED MARCH 19, 1984.

IN RE MARRIAGE OF WILLIAM CARNEY, PETITIONER-APPELLEE, AND JOAN CARNEY, RESPONDENT-APPELLANT.


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

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

On July 1, 1982, the circuit court of Cook County entered an order dissolving the marriage of petitioner William Carney (William) and respondent Joan Carney (Joan). Joan appeals from that portion of the order relating to property division and maintenance. For the reasons set forth below, we reverse the judgment of the trial court and remand the cause for further proceedings.

The record reflects as follows. The parties have been married twice to each other. The parties were first married in 1961. During the course of their first marriage they had three children, Michael, Diana and Matthew. Upon Joan's petition, the first marriage was dissolved in September 1978. The settlement for the 17-year marriage provided: (1) Joan would retain the marital residence in Northbrook, Illinois; (2) Joan would pay William the sum of $20,000 for his interest in the marital residence; (3) Joan would have custody of the parties' three children; and (4) William would pay Joan a total of $23,800 per year in unallocated permanent maintenance and child support, payable $1,150 per month and $2,250 per quarter.

During the spring of 1979, Joan put the Northbrook home up for sale and began looking for a new home for herself and the children in the Barrington area. In June 1979, William approached her about the prospect of them remarrying and moving to Barrington. Subsequently, Joan agreed to the remarriage and sold the Northbrook home on August 14, 1979.

On August 15, 1979, Joan and William remarried and on the same date purchased a five-bedroom, 3 1/2-bath house on a 1 3/4 acre site in the suburb of South Barrington. The Barrington home was purchased in joint tenancy for $225,000. The parties made a $100,000 down payment and obtained a mortgage loan in the amount of $125,000. The funds for the down payment came from the following sources: (1) $17,000 received by Joan from an inheritance; (2) Joan's proceeds from the sale of the Northbrook home in the amount of $67,610.95; and (3) an $18,000 loan from William's parents, for which both parties signed a promissory note.

Shortly thereafter, on November 10, 1980, William petitioned to have the second marriage dissolved, alleging mental cruelty. The case proceeded to trial on a bifurcated basis, with the grounds for dissolution proved by stipulation and the remaining issues heard as a contested mater.

At the time of trial, Joan was 41 years of age. She testified that during the course of the parties' second marriage she was hospitalized on three occasions for emotional stress and alcoholism. She was initially hospitalized in January 1980 for three weeks for emotional exhaustion. Following her release from the hospital, she returned to the Barrington home. In May 1980, she was treated for severe depression in the mental health unit of a hospital for approximately seven weeks. After being released in July, she again returned to the Barrington residence. In November 1980, Joan testified that she "was on the verge of a nervous breakdown" and was hospitalized again for approximately seven weeks. Following this confinement, Joan did not return to Barrington. Instead, she went to live with a girlfriend until May 1981, then stayed with her sister for two months and eventually moved into her own apartment in suburban Schaumburg.

Upon leaving the Barrington home following her last hospitalization, Joan supported herself with temporary support payments from William in the amount of $700, and later $750, per month. To supplement these payments, she obtained various temporary part-time jobs, earning less than $5 per hour. She worked at a delicatessen, as a nurse's aide and as a "Kelly Girl" temporary office worker. She testified that at the time of trial she was working at a White Hen Pantry, walking distance from her apartment, earning $3.50 per hour. Joan's total wages in 1980 were $703.51. She stated that a lack of transportation precluded her from securing full-time employment. She hoped to procure a full-time job once her 1979 Pontiac, which had been barely running, was repaired.

Joan further testified that she received only a high school education and has no vocational skills or training. She was a housewife throughout the approximately 18 years she lived with William, except for briefly working part-time at a toy store. She also stated she was unable to pay her $400 monthly rental payments for five months and was therefore being evicted from her apartment. Additionally, she was being sued by a department store for $706 unpaid charges. In September 1978, she used $10,000 from an inheritance to pay William $10,000 of the $20,000 owed him under the first judgment of dissolution. An additional $3,000 from her inheritance was used as the down payment on a 1979 Pontiac she purchased during the interim period between the parties' two marriages. *fn1 The remaining funds from her inheritance have been depleted. Joan stated she has no savings or assets, except for some jewelry her mother left her.

Dr. Mark Round, Joan's treating physician, testified that even though Joan is physically and mentally employable, her mental functions have been impaired as a result of the long-term consumption of alcohol. It was his opinion that Joan will benefit from continual, long-term psychotherapy. Although she has stopped drinking, he classified her as an alcoholic.

William is a partner in a law firm in Chicago. He draws an income of $2,500 per month and additionally receives periodical partnership distributions. He testified that his annual gross income from the the firm was $108,000 in 1981 and approximately $117,000 in 1980. When Joan left the Barrington residence, William maintained the home and provided for the care of the children, including their educational and medical needs. At the time of trial, the children, Michael, Diana and Matthew, were 19, 15 and 13 years of age, respectively. Michael was a student at the University of Illinois-Urbana. William testified that Diana had been injured in an accident and would require additional plastic surgery on her face, and Matthew had injured his knee and would probably need further medical attention. William stated that his monthly expenses for the home and children exceeded his income and he met this deficit by borrowing from various banks and his parents. He listed his total current debts at $57,856.18 as of April 5, 1982, exclusive of the mortgage and various debts incurred by Joan following her separation from William in the amount of $7,503.84, plus interest.

William additionally testified that in September 1978 Joan paid him $10,000 of the $20,000 due him for his interest in the Northbrook home under the prior judgment of dissolution. When Joan agreed to use her inheritance and proceeds from the Northbrook home to purchase the Barrington residence, he stated he "forgave" her for the $10,000 still owed to him. In his words, "we wiped it all out" and "put the house back together."

William further stated at trial that he acted as Joan's attorney in the sale of the Northbrook home on the day before the parties remarried. As her attorney, he drafted the documents necessary to convey title to the home, and placed his own name on the deed of conveyance. He admitted that he deposited all of the proceeds from the sale of the home directly into his own personal bank account, rather than in a joint account with Joan.

At the onset of trial, William attempted to introduce into evidence a written appraisal by a realtor, dated September 26, 1981, showing the fair market value of the eight-year-old Barrington home was only $167,000, which was $58,000 less than its purchase price two years earlier. Counsel for Joan objected to the appraisal and it was never admitted into evidence. William testified at trial, however, that the fair market value of the Barrington home had declined to $167,000 due to higher mortgage interest rates, the recession and normal wear and tear on the home. He further stated that he spent approximately $9,740 in home improvements.

Based on the foregoing evidence, the trial court found that: (1) the duration of the parties' second marriage was 15 months; (2) the first marital home in Northbrook became Joan's separate property under the prior dissolution decree, subject to the $10,000 that William alleged was still owed to him for his interest in the home; (3) Joan contributed $84,600 to the acquisition of the Barrington home — $67,600 in sales proceeds from the Northbrook home and $17,000 from an inheritance (her net contribution to the home, however, was reduced by the $10,000 supposedly still owing to William from the prior judgment); (4) William made a total contribution of $73,700 to the Barrington home — $32,700 in mortgage payments, $3,300 in real estate taxes, $9,700 in home improvements, the $18,000 loan from his parents and the $10,000 that the court found was owing from Joan; (5) William contributed $77,000 toward basic family expenses for himself and the children, and incurred an additional $58,000 in expenses for taxes, partnership contributions and unreimbursed professional expenses; and (6) the Barrington home was marital property.

Pursuant to the above findings, the trial court held that William would retain the Barrington residence and assume responsibility for the mortgage and the $18,000 loan from his parents. Joan and William were each awarded $22,000 for their marital interest in the Barrington residence. The parties' interest in the home was based upon the court's assumption that the home had a fair market value of $167,000. The court then subtracted the current mortgage balance, which was approximately $123,000, and found that the present net ...


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