Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Marriage of Morse

OPINION FILED MARCH 10, 1986.

IN RE MARRIAGE OF SYLVIA L. MORSE, PETITIONER-APPELLEE, AND EDWARD W. MORSE, JR., RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Bond County; the Hon. Thomas Hildebrand, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

JUSTICE KARNS delivered the opinion of the court:

Edward W. Morse, Jr., respondent-appellant, appeals from a judgment of the circuit court of Bond County dismissing his post-trial motion and from the judgment dissolving his marriage to Sylvia L. Morse, petitioner-appellee, as it pertains to the issues of property division, maintenance, child support, visitation, and attorney fees.

Dissolution of marriage was entered August 9, 1983, and, after hearings on custody, support, and property, a final judgment was entered on December 19, 1984. The circuit court granted petitioner's motion to strike respondent's post-trial motion as untimely filed. By order of this court, the issue of timeliness of the post-trial motion was taken with this appeal.

We must first determine whether the deposit of respondent's post-trial motion in the mail constitutes a filing of the motion pursuant to section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203). The final order in this case was entered December 19, 1984. Consequently, respondent had until January 18, 1985, to file a timely post-trial motion. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203.) Respondent's post-trial motion contained a proof of service stamp stating that the motion had been placed in the mail on January 18, 1985. However, respondent's post-trial motion was postmarked January 19, 1985, and was not filed by the clerk of the circuit court until January 21, 1985.

Petitioner asserts that respondent's post-trial motion was not filed within the meaning of section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203) until January 21, 1985, and, therefore, the motion was untimely and does not serve to extend the time allowed for filing a notice of appeal. (87 Ill.2d R. 303(a).) Subsequently, petitioner argues that this court lacks jurisdiction over this appeal. It is respondent's position that his post-trial motion was filed when it was placed in the mail on January 18, 1985, and, therefore, the motion was timely. According to respondent, he had 30 days from the entry of the order disposing of his post-trial motion, February 25, 1985, to file his notice of appeal. Because notice of appeal was filed March 22, 1985, respondent asserts that this court has jurisdiction to consider this appeal.

In Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App.3d 39, 432 N.E.2d 645, this court accepted jurisdiction where notice of appeal was mailed within the 30-day period set forth in Supreme Court Rule 303(a) (87 Ill.2d R. 303(a)), even though the clerk of the court did not receive the document until after the 30-day period had expired. In the exercise of its supervisory jurisdiction, the supreme court, citing Holesinger, reversed a judgment of this court dismissing an appeal as untimely and remanded the cause for consideration of the issues raised in the notice of appeal. (Riedel v. Riedel (1984), 99 Ill.2d 534, 462 N.E.2d 198.) Although Riedel was issued in the form of a supervisory order, we believe that, by citing Holesinger, the court adopted the view that the date of mailing a notice of appeal constitutes filing for purposes of Supreme Court Rule 303(a) (87 Ill.2d R. 303(a)).

In A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App.3d 746, 450 N.E.2d 1356, this court, applying Holesinger, held that the mailing of a post-trial motion on the 29th day after entry of the final order was timely notwithstanding that the circuit court did not receive the motion until the 31st day after entry of the final order.

The difficulty presented in the instant case centers on the discrepancy between the postmark date of January 19, 1985, which exceeds the 30-day period for filing a post-trial motion, and the proof of service date of January 18, 1985, which is within the statutory period (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203). We are unable to glean from the facts of either Holesinger or Schulman whether the documents in question were postmarked within the 30-day period. In Holesinger, the court stated that the facts showed that the attorney had mailed notice of appeal two days before the expiration of the 30-day period. (Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App.3d 39, 42, 432 N.E.2d 645, 648.) In Schulman, an affidavit signed by the attorney stated that the post-trial motion had been mailed within the 30-day period. A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App.3d 746, 748, 450 N.E.2d 1356, 1358.

• 1, 2 At the hearing on petitioner's motion to strike respondent's post-trial motion, the circuit court stated that it had no reason to suspect that respondent's attorney would post-date the proof of service. Respondent's motion to supplement the record with affidavits of trial counsel and his secretary, who had signed the proof of service, was denied. Although cognizant of the fact that a proof of service stamp is more easily tampered with than a postmark, we conclude that a proof of service date is sufficiently analogous to an affidavit attesting to the mailing date so as to extend the reasoning in Schulman to the present case. The fact that the envelope containing respondent's post-trial motion was addressed to the judge rather than the circuit clerk does not alter our decision. (See Schneider v. Vine Street Clinic (1979), 77 Ill. App.3d 946, 948-49, 397 N.E.2d 194, 196 (Craven, J., dissenting), citing In re Estate of Eiberger (1977), 49 Ill. App.3d 1129, 368 N.E.2d 230 (Rule 23 order).) We reach our holding that respondent's post-trial motion was timely filed and that, subsequently, this appeal is also timely in light of our belief that the supreme court has adopted a position that doubts as to the timeliness of appeals should be resolved so to favor review in the appellate court. Riedel v. Riedel (1984), 99 Ill.2d 534, 462 N.E.2d 198.

The second issue raised by respondent is whether the circuit court's valuation of respondent's non-marital insurance agency and the court's finding that petitioner's contribution of personal effort toward the insurance agency entitled her to reimbursement constitute an abuse of discretion requiring reversal of the property distribution. In re Marriage of Benefield (1985), 131 Ill. App.3d 648, 650, 476 N.E.2d 7, 9.

Respondent complains that the circuit court's valuation of Morse & Associates Insurance, Inc., owned solely by respondent, was excessive and that the court erred in finding that petitioner was entitled to reimbursement for the personal efforts she exerted toward the appreciation of the insurance agency. Pursuant to stipulation, the circuit court admitted both parties' written appraisals of the value of the insurance agency. Because respondent's witness was not qualified as an expert, he was not allowed to explain his basis for valuing the insurance agency at $75,000. The order appealed from states that little weight was given to this appraisal. The circuit court apparently rejected respondent's testimony that the insurance agency was a negative asset and agreed with the appraisal submitted by petitioner that the agency was mismanaged. The circuit court concluded that respondent was neglecting his business intentionally so as to enable him to plead destitution. The court classified the insurance agency as respondent's non-marital property and, relying upon the appraisal submitted by petitioner, valued the agency at $142,000.

According to petitioner, she worked an average of one to three hours a day at the insurance agency managing the office, running errands, decorating, and balancing checking accounts. Additionally, petitioner became a licensed insurance broker and sold two policies. Respondent's witnesses disputed the extent of petitioner's involvement in the insurance agency. Petitioner was paid $50 per month for social security purposes and either received this check directly or allowed the check to be endorsed and deposited either into the agency's accounts or the parties' personal account. Petitioner further testified that she became involved in local politics, at respondent's request, to enhance the business of the insurance agency.

Upon this evidence, the circuit court found that section 503(c)(2) of the Illinois Marriage and Dissolution of Marriage Act clearly indicated that petitioner was entitled to reimbursement for her contributions to the enhancement of the value of the insurance agency. (Ill. Rev. Stat. 1983, ch. 40, par. 503(c)(2).) In valuing petitioner's right to reimbursement, the circuit court concluded that the insurance agency had appreciated by $62,000 during the marriage. The court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.