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In Re Marriage of Meyer

OPINION FILED FEBRUARY 19, 1986.

IN RE MARRIAGE OF THOMAS W. MEYER, PETITIONER AND COUNTERRESPONDENT-APPELLEE AND CROSS-APPELLANT, AND BARBARA A. MEYER, RESPONDENT AND COUNTERPETITIONER-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of St. Clair County; the Hon. C. Glenn Stevens, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The marriage of Thomas W. Meyer and Barbara A. Meyer was dissolved by judgment entered in the circuit court of St. Clair County on December 26, 1984. Barbara has appealed; Thomas has cross-appealed. Barbara disputes the classification and distribution of marital and non-marital property and the failure to award her attorney fees. Thomas assigns as error the award of maintenance and child support. The matter of maintenance has been mooted by the remarriage of the wife.

One would suppose that the advent of the Illinois Marriage and Dissolution of Marriage Act in 1977 (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.), a version of the Uniform Marriage and Divorce Act (see 9A Uniform Laws Annotated), would have simplified and lent some degree of finality in the trial court to these disputes and that the litigants, although not fully satisfied, would accept, albeit reluctantly, the decision of the trial court. (In re Marriage of Ligas (1982), 110 Ill. App.3d 1, 6, 441 N.E.2d 1277, 1281; In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 1127, 1133, 398 N.E.2d 126, 129, 133.) This has not proved to be true, and in this cause the general observation made above may be inapplicable, as we feel compelled to reverse.

This case involves no novel application of the Act with any precedential value, simply the exercise of the trial court's discretion in applying the Act to disputed facts.

The parties were married in 1960. Two children are issue of the marriage, one of whom, Dustin, born June 27, 1972, whose custody was awarded to the mother, is a minor.

Barbara, age 42, is a high school graduate, has 20 hours credit at Belleville Area College and has in the past performed stenographic work. Thomas is a journeyman electrician employed as an estimator for an electrical contracting firm. His gross earnings in 1982 were approximately $34,000. His net monthly earnings at time of hearing were $1,921. He has accumulated various tools associated with his trade and hobbies of woodworking and metalworking. His other interests are photography, taxidermy, hunting and fishing.

Barbara's non-marital property consists of a duplex and furniture valued at approximately $55,000, unvalued personal effects and jewelry, and $38,500 cash inherited from her mother. Thomas' non-marital property was valued at $2,000 and consists of a 1933 automobile without the engine, which the court classified as marital property and inexplicably required to be sold, and a paid-up life insurance policy valued at $1,237.

The marital property consisted of a home purchased in 1965, presently in need of repair, which was valued at $62,000 and awarded to the husband. The husband was also awarded motorcycles, guns and reloading equipment, a 1977 station wagon and other items of personal property valued at approximately $14,000 for a total award of $75,265.

The wife was awarded marital property consisting of numerous tools, a parrot and cockatoo, cameras and related equipment, model airplanes, a motor home, $12,000 cash and other items which need not be noted of a total value, as determined by the trial court, of $67,606.

The custody of Dustin was awarded to Barbara, and Thomas was required to pay $550 monthly for child support and $275 monthly for maintenance. Barbara's request for attorney fees was denied.

Two $10,000 certificates of deposit purchased with husband's earnings were issued by the Midwest Savings and Loan Association. These were found to be marital property, and each party was awarded one certificate. Barbara has raised some question concerning these certificates, as the trial court's judgment described these as being issued by Frontier Savings and Loan. It is apparent, and husband concedes, that this is an error. The dispositional order is to be corrected accordingly.

The court awarded to Barbara as her share of the marital property most of the numerous items of personal property used by Thomas in his business and hobbies. Of the items awarded to the wife the principal dispute concerns the tools, consisting of several thousand items. The husband's evidence valued the tools at $3,000 to $4,000. The wife and witnesses testifying on her behalf valued these tools, many of which she later claimed were missing, an allegation denied by husband, at a much higher figure. Undoubtedly she assumed that these items, tools used by the husband in his trade and hobbies, would be awarded to the husband in the distribution of marital property. The court accepted the wife's evidence of value, assigned a value of $22,500 to these tools and awarded them to her in the distribution of marital property. The wife was also awarded photographic equipment valued by the court at $7,800, $10,000 according to her valuation, which the husband testified was worth $500 to $1,500.

• 1 While the award of the tools, camera equipment and other items used by the husband in his business and hobbies at values established by the wife's testimony was an ingenious and simple way of apportioning marital property in relatively equal shares, once the decision was made to award the marital home to the husband, we believe it was an abuse of discretion to award the wife as her share of the marital property, tools which were only useful to the husband. We realize that it is the proper function of the trial court to distribute marital property equitably and that its decision will not be disturbed absent an abuse of discretion. We are also mindful that a just division need not be an equal division and that the trial court undoubtedly considered the substantial amount of non-marital property set apart to the wife. (In re Marriage of Benefield (1985), 131 Ill. App.3d 648, 476 N.E.2d 7.) In the instant case, however, we can find no reasonable basis for the award to the wife of tools only useful to the husband. The same can be said for the award of cameras, scuba gear, hunting and fishing equipment, all items used by the husband in his hobbies.

Barbara insists that many of the items of personal property awarded to her are missing or nonexistent. She suggests that Thomas removed many items from the marital home; this is disputed by Thomas. The wife was in possession of the marital home since the parties separated. In any event, the judgment of dissolution requires that these items, as inventoried and found to be in existence, should be delivered to the wife in the condition that the property was in existence at the commencement of the action. Inasmuch as these items have been valued in the judgment of dissolution, should they not be accounted for, appropriate post-trial remedies would be available to insure that the judgment of the trial court be enforced. The trial court gave careful considerations to the claim of missing items of personal property and whether many items of alleged personal property were ever in existence. The testimony and exhibits bearing on this are voluminous. We cannot say that the trial court's determination of these matters was against the manifest weight of the evidence; however, as we have determined that this cause ...


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