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In Re Marriage of De Bat

OPINION FILED SEPTEMBER 14, 1984.

IN RE MARRIAGE OF HELENE DE BAT, PETITIONER-APPELLEE, AND ALFRED DE BAT, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Daniel J. Ryan, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Respondent Alfred De Bat appeals the portions of a judgment for dissolution of marriage which provided for the property division and the award of unallocated family support. The issues presented on appeal are whether the trial court's division of the parties' marital assets and the award of unallocated family support were proper. We affirm.

Respondent and petitioner Helene De Bat were married April 26, 1969, and had one child, Avril, born August 3, 1975. At trial, petitioner was 42 years of age and respondent was 51. In 1970, the parties purchased as joint tenants a two-apartment building with $16,000 accumulated by respondent prior to the marriage and a mortgage for the balance. Respondent paid the monthly payments of $373.73 and real estate taxes of $1,200 to $1,400 per year. The parties occupied the second-floor apartment as their marital home, and tenants occupied the first floor at a rental of $450 per month.

Respondent received a bachelor's degree and a master's degree in journalism in 1954 and 1955, respectively. At the time of marriage he was employed at an annual salary of approximately $15,000. From 1970 until 1979 he was employed by Playboy Enterprises, Inc., as manager of the international publishing division at an average annual salary of $35,000. In this employment he engaged in extensive travel and was frequently out of the country for periods of several days to two weeks. The average duration of his travel away from home ranged from one week to 10 days, although one trip lasted more than a month. Respondent was unemployed for a year following the elimination of his position at Playboy. In 1980 he began working for Signature Publications at an annual salary of $38,000 and was again required to travel frequently. Respondent testified at trial that he was then unemployed but stipulated before judgment was entered that he was employed at a salary of $30,000 per year. He is a member of the American Society of Photographers and has worked as a professional photographer on a part-time basis while employed as an editor and journalist. He testified that on occasions he received payments of as much as $400 directly from Signature for photographs taken by him.

Petitioner has completed two years of college but has not received any degree. Prior to marriage, she was employed successively as a secretary, receptionist and as a teacher in the use of communication equipment in a hospital. She continued employment for a year after marriage and terminated full-time employment when she became ill after suffering a miscarriage of twins in January 1971. Petitioner testified that she performed the gardening and lawn care, the interior and exterior maintenance and interior decorating of both apartments of the marital home. She assumed most of the duties related to care of their child, especially during respondent's frequent absences due to work-related travel, and did the cooking, cleaning and laundry in maintaining the family home. Avril started nursery school at three years of age, and petitioner drives her to and from school each day. Petitioner testified that she sought employment by looking through the newspaper advertisements but has been unable to find a job for which she was qualified and which would allow her to continue to care for her daughter as she had been doing. In an attempt to generate some income, she is researching and writing a book on children's activities and hopes to herself promote and distribute the book, although she has had no experience in this field. Petitioner testified that Avril likes the present home and has friends in the neighborhood. Petitioner submitted an affidavit summarizing the average monthly expenses of herself and her daughter at $1,683.75.

The evidence before the court included further testimony and exhibits concerning the various bank accounts, stocks and assets of the parties. The judgment for dissolution of marriage entered February 9, 1983, inter alia found that respondent had held an account without the knowledge of petitioner at Lake Shore Bank in the amount of $21,000 which was withdrawn in 1978 and for which there has not been a satisfactory accounting; that the stipulated values of the marital assets were adopted; and that the court has taken into consideration all of the relevant factors as to the disposition of the property, maintenance and child support, "including those prescribed by Statute in Chapter 40, Sections [sic] 503 and 504 and 505 of the Illinois Revised Statutes, and the subparagraphs contained therein." The court thereupon awarded custody of Avril to petitioner with visitation to respondent and ordered the marital property divided.

The judgment fixed the value of the apartment building at $85,000 (after deduction of a mortgage balance of $3,000 to $4,000), and ordered that the building be awarded 75% to petitioner and 25% to respondent; that the necessity and costs of any major repairs or capital improvements be agreed upon or determined by the court, which costs shall be shared in like proportions; that petitioner is responsible for mortgage, tax and insurance payments; that petitioner have exclusive possession and receive all rentals until Avril reaches 18 years of age or prior thereto if petitioner chooses to sell; that petitioner have the right at any time to purchase respondent's 25% share or to sell the building at existing market value to be agreed upon or otherwise determined by the court.

The judgment further awarded petitioner two bank accounts aggregating $15,485.74, a Toyota automobile of no value, and her non-marital 400 shares of E.G.&G. valued at $8,000. Respondent was awarded as his property an IRA account of $14,000, three bank accounts of a total of $7,700, and 300 shares of Playboy stock valued at $2,100. In addition to the foregoing, an IRS refund check for $3,850 was divided equally, and the furniture and furnishings were to be divided by agreement of the parties.

The judgment concluded by ordering respondent to pay to petitioner "as and for unallocated family support the sum of $800 per month * * * until Avril, the minor child, graduates 8th grade grammar school, at which time said amount shall be re-evaluated by this Court. It is the intent of this Court that said payments of unallocated family support shall be deductible from ALFRED'S income and includable in HELENE'S income"; and further that each party is responsible for his or her own attorney fees.

Respondent appeals.

OPINION

Respondent first challenges the court's distribution of marital property. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act requires that the court shall divide marital property in just proportions considering all relevant factors, including those therein specifically set forth. Ill. Rev. Stat. 1981, ch. 40, par. 503(c).

It is undisputed that an equitable division of property is not necessarily an equal one. (In re Marriage of Stallings (1979), 75 Ill. App.3d 96, 393 N.E.2d 1065.) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App.3d 452, 458, 426 N.E.2d 1084.) An abuse of discretion occurs only if no reasonable person would take the view adopted by the court. In re Marriage of Rossi (1983), 113 Ill. App.3d 55, 58, 446 N.E.2d 1198.

Respondent contends that the court erred in awarding petitioner the marital residence subject to his right to receive 25% of the proceeds from its eventual sale. He argues that his share in the proceeds may not be realized for 11 years, that he should have a more immediate right to his share of ...


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